One member of the Planning Commission asserts that supporting the MBC agreement has more to do with good faith than substantial facts. Others regard these loophole scenarios as outrageous.
By Jonathan Friedman/Special to The Malibu Times
Planning Commission Vice Chair Deirdre Roney released a document earlier this month that presents a number of questions she has and ambiguities she says exist in the Malibu Bay Company Development Agreement.
She said the lack of clarity in much of the document requires anybody who wants to support it is only able to do so based on faith, because not enough facts exist. However, Councilmember Jeff Jennings and MBC attorney Dick Volpert said the issues she raises were mostly irrelevant or involved outrageous scenarios.
An example of something Roney proposed is that the city could purchase the Chili Cook-Off site if it acquires the $25 million, regardless of whether the rest of the deal goes through.
The commonly held belief is that if the California Coastal Commission places conditions on the agreement that are unacceptable to either party, or there is an ongoing lawsuit still existing at the end of the three-year period, that the city has to buy the site. That is, unless the timeframe is extended by mutual agreement, the development agreement is terminated.
However, Roney wrote there is nothing in the agreement that states the city could not buy the Chili Cook-Off site as long as it raises the money. But Volpert said for that to occur, one would have to assume the city is willing to act in bad faith.
Another issue Roney raised is regarding the Point Dume property, where the MBC could build a community center for the city. According to the agreement if the MBC builds it, the city would be able to lease the center for $1 per year. However, Roney wrote since the agreement itself runs out in 20 years, she finds no statement that protects the $1 lease after that 20-year span.
But Volpert said the timeframe has nothing to do with that and only deals with how long the MBC has to develop its properties. He said to have it affect the lease would be an example of the MBC acting in bad faith.
However, Roney said in a telephone interview that faith has nothing to do with the agreement. “A document either allows you to do things or it doesn’t,” she said. “And if it allows you to do something and you do them, then it’s fine. And these are the things that should have been explored to see what does the document allow both parties to do.”
Another issue Roney raised is that since the agreement allows for Perenchio’s Colony property to be hooked up to the proposed wastewater treatment facility, hypothetically he could offer to buy a portion of all the Colony residents’ properties so they could hook up to the facility. Jennings said the idea is silly and not even worth a response.
Roney argued it is irrelevant how far-fetched an idea might be, because if the agreement allows the possibility, then it is proof of an unfinished document. She said the document was rushed to completion for the November ballot, leaving it under-analyzed.
Volpert disagreed with that assessment. “That’s the most fully analyzed development agreement I’ve ever seen,” he said. “And I’ve seen a number of development agreements since 1980.”
Volpert said he does not buy the argument that the revised agreement needed loads of extra analysis as some have suggested, because other than the city being able to purchase the Chili Cook-Off site and the MBC’s ability to build on Point Dume under the zoning code, there are not many major changes from the original document.
Roney also raised many of the same issues that have been stated by Measure M opponents, such as the possibility of it being a high risk for the city to be able to raise the money to purchase the Chili Cook-Off site, since if it doesn’t that could lead to the development of 155,000 square feet there.
Also, she said there is a possible California Environmental Quality Act violation. She added that the public benefits might not be sufficient. She admitted to not having answers to these questions, but she said nobody does and that is the problem.
However, the commissioner stopped short of speaking out publicly against the agreement. “I want to be for things,” she said. “I want to be on the side of people who are trying to come up with solutions. Is that a reason to vote for it? Maybe. Is that a reason for me to tell people how to vote? No.”
But she also had harsh criticism for not having gotten any responses to her document from city officials. “Is it a good sign that would give confidence in people, that they should vote for this agreement, when people who ask questions about the agreement are dismissed instead of having the questions answered?”