Atascadero loses first round in lawsuit alleging bias, prejudice

March 16, 2022

Atascadero Councilwoman Susan Funk

By KAREN VELIE

Atascadero’s attempt to have a case dismissed against the city and two Atascadero City Council members who are accused of bias and prejudice shows the strength of a multi-million dollar lawsuit against the city, according to a judge’s tentative ruling.

The plaintiff, Scott Newton, argues that two council members violated city regulations in their battle to stop him from developing his property. The council members were not required to pay appeal filing fees or to have their appeals heard within the required 30 days, according to the lawsuit.

During her battle against the project, Councilwoman Susan Funk sent emails drumming up support of her appeal, spoke against the project at an event and posted an appeal video against the project on Facebook. Council members are not permitted to show actionable bias against a project.

The city’s lawyers then filed a motion arguing that Newton’s lawsuit did not sufficiently state an actionable bias claim against council members Heather Newsom and Funk.

SLO County Superior Court Judge Hernaldo Baltodano tentatively ruled that the city was not able to demonstrate that Funk did not show actionable bias.

“Funk stated at a ‘Public Officials Night’ that “one more unit of self-storage in the City is one too many,” according to Baltodano’s tentative ruling. “Finally, the FAP alleges that after filing her appeal, Council Member Funk posted “an appeal video on Facebook,” on which she ‘liked’ comments critical of the project and ignored comments in support of the project.”

At a June 9, 2021 council meeting, Newsom and Funk “voted against Newton’s self storage unit project, as did Mayor Heather Moreno,” according to the lawsuit. “Both Funk and Newsom reiterated that the project was incompatible with the neighborhood, with heavy emphasis on the fact that self-storage could never be compatible even though the city had voted to leave self-storage as an acceptable use in the P Zone.”

Newton then attempted to rezone the property with plans to build a residential development, but the city refused to process his application, which is another claim in his lawsuit.

The city argued in its motion to dismiss that there is no legal requirement that the city ‘expeditiously’ process Newton’s application. And again, Baltodano did not agree.

Newton also accuses the council members of violating his civil rights guaranteed under the Constitution.

In its motion, the city argues that Newton “does not have a constitutionally protected property right to have his application approved.” Baltodano again overruled the city.

Newton, a Pismo Beach City Councilman, is asking the court to void the Atascadero City Council’s June 9 vote, for court costs, attorney’s fees and $2.4 million in damages. The city does not have insurance that will cover a judgement in this case.


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Jorge Estrada

Reads like the Atascadero taxpayers are going to pay Newton for their bad choice or negligence in the choices made for City representation. This usually happens when the leadership forgets who they serve.


R.Hodin

Indeed it was a serious oversight by the named council members and city staff that their constitutional mandate is to indeed serve money, and moreso that they serve big money bigly.


LoveOrLeave

If (when) the courts determine that Susan Funk crossed the legal line, what implications will there be for her? Would she do the correct thing for the city and resign from the city council? I believe the Progressive voters will not even care and will ignore it and vote her in again.


commonsenseguy

I agree. Mrs Funk is part of SLO Progressives. She supported Hiedi Harmon and others of the same ilk politically. Close ties with with Ellen Beruard who supported Bernie Sanders and the recent redistricting lawsuit.


shishkabob141

All we need to know (from an earlier CCN story)

“ Progressive candidate Susan Funk won a seat on the Atascadero City Council with 34.33 percent of the vote. With 35.23, Heather Newsom also won a seat on the Atascadero City Council.”

Poor choices Atascadero.


kayaknut

But what were the other choices? As elections often are could it have been the lesser of all evils? Is Atascadero an at large council or by district?


LoveOrLeave

If I recall correctly, current council member Mark Dariz ran and lost that year. He is probably the one with the most commonsense. Hard to believe that Funk won over him that year. And just as scary is Funk’s groupie Torri Keen keeps trying to join her on city council.


kayaknut

Guess it could have been worse at least Ellen Beraud didn’t run.


commonsenseguy

I remember the meeting and the issues surrounding. While I agree with the city’s decision to deny the unfavorable project for the residential areas it would impede on, I absolutely disagree with actions that followed by councilwoman Susan Funk. Not very intelligent on her part. She has now opened the city to the situation they find themselves in. Although I don’t won’t that project there for the character of the community, I hope Mr. Newton would rethink a more compatible project to the area around it. It sounds like the city doesn’t what his business and that’s their right.


Mr. Newton why aren’t you willing to do your project elsewhere, say like Pismo Beach or Shell Beach. You would probably be able to ask more for each unit being those communities are more upscale and in need of the storage units? I wish you the best, but not this eye sore of a project in Atascadero.


Gramelin

I don’t know Newton nor where his property is, nor anyone else involved in this case. But it looks to me he has a good case. It’s always frustrating to me to see a city council, whom will be replaced in a few years, make such detrimental decisions regarding what someone can or can’t do with their own property. As long as the property lands within the zoning regulations. Who are they to say no when the property is properly zoned? Does Funk or Newsom own or have friends or family own a self storage? Why would they be so dead set against it?


commonsenseguy

The majority of the community speaking on it, opposed it. He was building it in a natural water flow and low-lying flood area. With the additional concrete and asphalt related to the proposed project, the increased water flow would increase the potential for flooding homes just to the east of the project along with flooding of nearby soccer and softball fields at Paloma Park. This is already happening at times in a wet rainy season.


The engineering solutions for runoff admitted the runoff leading to flooding potential would increase along the the water flow volume. The lack of mitigation of this issue by the developer was a big factor.


LoveOrLeave

I heard more people speak that they wanted the land left as it is, an open field or converted to a park. This is not an option for an investment. The city said themselves that the development would decrease the risk of flooding to the surrounding areas and legally they can not add to the flood risk. Funk made a huge mistake and went too far to kill off a project that probably would have failed to get approval anyways. Her mistake now will probably cost our town millions. Poor leadership on her part and she needs to be removed if all of this is true.