proposalsn Unfettered appeal
process called safety valve.
By Cristina Forde/Special to The Malibu Times
In their review of city staff proposals to streamline development permits, Malibu Planning commissioners Monday debated the wisdom of foreclosing any part of the public’s right to appeal.
In a report called “Zone Text Amendment No. 02-001” staff suggested a “no appeal” provision in 11 types of project development elements that clearly meet the specified (ministerial) requirements.
The proposals would give city planners more authority when appellants-usually neighbors- block or delay projects even when all city code requirements have been met.
“We have had appeals that shouldn’t have gone through the appeal process,” said Planning Director Drew Purvis. “That’s why we’re looking for input from the Planning Commission.”
Commission Chairman Richard Carrigan said the unlimited appeal process has not gummed up the system so far.
“I can’t remember in two and a half years on the commission that I heard a frivolous review,” Carrigan said. He urged rethinking the staff proposals “so the community can feel it has a court of last appeal.”
Cancel the license
Commissioner Ed Lipnick, while saying the commission must provide a genuine avenue of appeal for those adversely affected, found merit in the staff proposals.
“If it [the application] meets the requirement of code I don’t want people to appeal,” Lipnick said. “It’s like getting a marriage license and someone protests it, saying, ‘I don’t like your fianc. She’s ugly.’
“This whole process has cleaned the code up. If there is fraud, misrepresentation or misinterpretation, OK, but in general I have to say this is a wise way to go.”
Commissioner David Fox took on Lipnick for the first time since they have been on the panel together.
“I strongly disagree with you on this one,” Fox said to Lipnick.
Fox turned Lipnick’s marriage license analogy on its head, saying after the meeting, “We are trying to protect against a situation where people are denied a marriage license and should have a right to appeal that decision.”
Fox said, “We have a city that already feels disenfranchised and not as much a part of the process as they should be.”
Commissioner Deirdre Roney asked if it is possible for all parties to stipulate the facts, yet still disagree about other things that would result in an appeal.
“I guess what we’re talking about is safety valves,” she said.
“What percent of appeals are efforts to delay projects they don’t like?” she asked staff. “Will streamlining reduce the opportunity for people with the propensity for delay?”
Fox, an attorney, said “in real life,” the courts cannot say who can and cannot appeal, but there are strict guidelines as to the process.
Fox said he is confident the city’s appeal process is not being abused.
“We can rely on people to make decisions in their own best interests,” he said. “Taking an appeal to the Planning Commission is a huge pain in the butt and people will not do them unless the stakes are high.”
The view’s the thing
The most important changes in the streamline proposal relate to primary view protection.
Staff recommends abandoning the current primary view protection guideline of 90 degrees as “problematic.”
Staff proposed maintaining a view corridor of 180 degrees, allowing for a 5 percent maximum allowable view obstruction within blue water ocean, mountain or canyon view elements, “but in no event more than an aggregate 15 percent view obstruction of the blue water ocean, mountain or canyon view elements per view corridor.”
Maintaining a zero tolerance view obstruction policy for “the most significant views, such as whitewater (surf) views, off-shore islands, Point Dume, Queen’s Necklace and Palos Verdes Point was proposed.
The proposals would also:
- Change the code classification of certain slope density, remedial grading and retaining walls over 6-feet high that are not visible to neighbors
- Alter time elements of the Plan Review and Site Plan processes, among them requiring action by the planning director in 10 days rather than 60-a proposal that, on second thought, according to Planning Director Purvis and Carrigan, is too tight
- Adjust ESHA bluff setbacks
- Increase notification distances to all neighbors within 1,000 feet for larger properties
The report, prepared by Associate Planner Glenn Michitsch, includes input from a Planning Commission workshop.
The amendment will make it easier for staff to deal with problems they encounter. One time, Michitsch said, a homeowner upset about view impact “stood on her toilet to look out her bathroom window,” trying to convince him it was her primary view.
The commission will further discuss the proposed amendment. See the City of Malibu Web site for more information at www.ci.malibu.ca.us.