The stairwell had previously been approved by the city council.
By Jonathan Friedman / Special to The Malibu Times
If Malibu property owner Clark Drane wants to build a private stairwell on a coastal bluff off Westward Beach, he will have to sue the state. The California Coastal Commission voted unanimously to reject his request for a permit to build the stairwell last week at its meeting in Santa Monica. Drane had been denied a permit by the Malibu Planning Commission, but received one from the City Council on appeal. Two Coastal Commissioners later requested a final hearing before the state panel.
The commissioners agreed with the recommendation of commission staff that the stairwell could not be approved because the Malibu Local Coastal Program (LCP) does not allow for the construction of private stairwells on coastal bluffs. They rejected the argument by Michael Jimenez, Drane’s attorney, that since there was once a stairwell on the property (until the mid-1970s), he had the right to build it. They also rejected the argument that the easement for the stairwell was a separate parcel from the nearby home and that rejection of the permit would raise taking issues.
“The contention that somehow an easement confers a private parcel status is … something’s that very disturbing,” said Commissioner Sara Wan, a Malibu resident who has been a critic of the city on the issue of beach access.
She continued, “An easement does not confer separate property rights on it. To say an easement creates a separate parcel, frankly, would undermine all land use regulations.”
Fran Gibson, of the activist group Coastwalk California, said treating the easement as a parcel would create a “coastal virus” throughout California. Gibson has spoken on several Malibu items at recent Coastal Commission meetings, favoring actions that increase public access and denouncing those that benefit private access.
Drane, a former Los Angeles Regional Water Quality Control board member, told the commission that it was strange to be on the other side of the dais on a development issue. He said the stairwell should be allowed because it was “clearly there” when he purchased the property in 1974. He and his lawyer said it was what is known as a “legal nonconforming use,” meaning it does not conform to a current regulation, but since it was built before existing law went into effect (Malibu was not a city when the stairwell was built), it is legal. Repairs of developments that are legal nonconforming uses are allowed, but rebuilds are not. Drane and his attorney argued this was a repair, since some of the former stairwell still exists. The commissioners disagreed.
“Once the staircase disappeared, the right to use it and rebuild it also disappeared,” Wan said.
Drane and Jimenez could not be reached for comment after the meeting.
Last year’s approval of the stairwell by the City Council was a 3-2 decision and included a heated exchange between then Councilmember Andy Stern and Councilmember Pamela Conley Ulich. City staff had recommended against the approval. At the Planning commission Meeting that followed, Commissioner John Mazza apologized to city staff for the council rejecting their recommendation. He said the council had “ignored the law” and compared the permit approval (which forced the city staff to rewrite language justifying the permit) to Vice President Dick Cheney ordering lawyers to write torture memos saying torture wasn’t torture. Several council members at the following meeting criticized Mazza for his comments.
A Coastal Commission hearing on an appeal of the city’s approval for a 2,500-square-foot office building across the street from the PierView and Windsail properties was postponed. No reason was given for the postponement. This is the second time this item has been postponed.