Council guilty of violating Brown Act; loses lawsuit

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A three-judge panel rules that a settlement agreement reached between the city and developer Trancas PCH violated the city’s zoning code and the state’s open-meeting law. A Trancas PCH partner says, “all options are open,” including renewing its lawsuit against the city.

By Jonathan Friedman / Assistant Editor

For the second time this year, a court has voided a legal settlement reached between the city of Malibu and a developer. The City Council was also found guilty of violating the Brown Act, the state’s open meeting law.

A three-judge panel on the California Court of Appeal’s 2nd District issued an opinion Monday that reversed Los Angeles Superior Court Judge David P. Yaffe’s 2004 ruling and supported the Trancas Property Owners Association’s allegation that a settlement reached between the city and developer Trancas PCH was illegal. This comes after a Los Angeles Superior Court judge’s February ruling in favor of the Latigo Canyon Preservation Association’s challenge of a settlement between the city and the Rubens Family Trust.

Presiding Justice Candace Cooper wrote in the opinion, which was affirmed by associate justices Paul Boland and Madeleine Flier, that the settlement agreement, which granted Trancas PCH the ability to build a 32-town home project on Pacific Coast Highway west of Trancas Canyon Road, “was invalid because it impermissibly attempted to abrogate the city’s zoning authority‚Ķ [and] violated the Ralph M. Brown Act.”

The court ruled the City Council violated the Brown Act because it approved the agreement during closed session, a portion of the meeting not open to the public when the council discusses legal issues with the city attorney and city staff relevant to the subject. Although the Brown Act allows for certain kinds of settlements to be approved during closed session, the court wrote that “A settlement approved in closed session could not include agreement to take governmental action that independently requires a public hearing, at least without holding one before that action is actually authorized or taken.”

The court said the settlement disregarded the zoning code because the city agreed never to enact any ordinances that could prohibit Trancas PCH from building its development, therefore restricting future city councils. Also, the settlement stated that the development did not have to follow the city’s zoning standards for density. The court wrote that for the city to grant that type of exemption, it would have had to go through the regular process for issuing variances, which includes public hearings. That did not occur.

City Attorney Christi Hogin said she disagreed with the court’s ruling on the Brown Act issue because it implied the settlement was the final step in the permitting process for Trancas PCH, while, she said, it was just the beginning of a long process. The developer would still have to go through the permitting process. And she said she disagreed with the court’s ruling on the zoning issue because, she said, it was never the intention to alter the zoning. She said the exemption for Trancas PCH on density was because it was necessary to cluster the development so it could fit on a smaller portion of the property.

Hogin said she was especially disappointed with the ruling because the settlement included a donation of 26.5 acres of property for parkland and four of the town homes were going to be designated for lower-income people.

“We lost a huge opportunity for more parkland and affordable housing in Malibu,” Hogin said.

Trancas PCH partner Dean Isaacson said the court case was another attempt by the property owners association to delay the development, and that its board of directors is not interested in reaching a resolution.

Board member Marshall Grossman, who lives on Broad Beach that the property owners association encompasses, said in response to Isaacson’s comment, “I sympathize with Mr. Isaacson. It’s never easy to have three justices of the Court of Appeal rule against you unanimously. I think his reflections are best focused internally rather than externally. And I wish him well in his future efforts.”

Grossman said the property owners association’s main concern is that increased development would create a greater water runoff problem. Isaacson said that was not a legitimate issue because he planned to build a wastewater treatment facility to which Broad Beach homeowners could hook up, solving all runoff issues. Grossman said the offer was not a good one because the facility would not decrease pollution and the homeowners would have to pay to hook up to it.

The attempt to build on this Trancas site has been a 25-year saga of lawsuits and conflicts. The county approved tract maps for the previous owner in 1980 and 1985 allowing for the construction of 52 town homes and 15 houses. The company received coastal development permits for the project in 1981, 1989 and 1992. But a Court of Appeal decision in 2001 sided with the Trancas Property Owners Association and invalidated the coastal permits. The city also fought with Trancas PCH for several years over the validity of the county-approved tract maps This eventually lead to the settlement, which now has been crushed.

With the settlement voided, the developer could choose to pursue its lawsuit against the city. A status conference is scheduled for that lawsuit on Oct. 27.

“After trying to force things down the developer’s throat to effect a lower outcome, in the end, they [property owners association] may be the cause for 52 town homes and 15 single-family homes,” Isaacson said.

When asked if this meant Trancas PCH would be pursuing with the lawsuit rather than trying to negotiate a new settlement with the city, Isaacson said, “All of our options are open.”

Grossman, who is an attorney but did not serve in that capacity for the association, said he was not concerned about Trancas PCH’s lawsuit against the city. He said the 2003 City Council decision to invalidate county-approved tract maps was final and time had expired on the developer’s chance to get a court to reverse the decision. Trancas PCH attorney Alan Block said that was not true and he had “no idea where Grossman was coming from.”