TLC loses Brown Act lawsuit

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Appellate court upholds former ruling that said Councilmember Jeff Jennings and former Councilmember Joan House did not violate the Brown Act by discussing Malibu’s Land Use Plan alone. They had asked former TLC member Efrom Fader to leave the room.

By Jonathan Friedman/Assistant Editor

The Second Appellate District of the state Court of Appeal upheld a decision by a Los Angeles County Superior court judge to reject Taxpayers for Livable Communities and former TLC member Jay Liebig’s claim that a meeting between two city council members to discuss the city’s Land Use Plan violated the Brown Act, the state’s open meeting law. The panel’s decision, which was filed on Feb. 15, declared that the meeting did not fall under Brown Act rules.

TLC’s lawsuit stems from a 2001 incident in which Malibu Township Council President Efrom Fader walked in on a meeting between Councilmember Jeff Jennings and then-Councilmember Joan House to discuss how the city should respond to the draft-Malibu Land Use Plan written by the California Coastal Commission. Fader was asked to leave.

TLC argued that since Jennings and House were members of the council’s Land Use and Planning Committee, their meeting qualified under Brown Act rules. Brown Act meetings are required to be open to the public. However, the court said, “Appellants’ [TLC] contention is unavailing because, as the trial court found, Jennings and House did not meet as members of the Land Use and Planning Committee. The Land Use and Planning Committee has jurisdiction over planning and zoning code enforcement. It did not, however, have jurisdiction over Malibu’s response to the Coastal Commission’s LUP for Malibu.”

Liebig said he was disappointed with the decision, but added that he did not think it was a slam-dunk victory for the city.

“I still don’t like the behavior of the council people meeting quietly and secretly with selected members of the community; it’s really bad faith,” Liebig said in a phone interview Tuesday.

Mayor Sharon Barovsky took issue with Liebig when responding to a question about the lawsuit.

“He has filed numerous lawsuits against the city‚Ķcost the city thousands of dollars,” she said. “His one claim to fame is that he joined the Coastal Commission’s lawsuit against the city and won $10,000. I don’t think that’s a very good return on his investment.”

TLC and Malibu have been in several legal battles in recent years. Liebig headed the organization until resigning his post prior to his 2004 City Council run (his name still appears on all TLC lawsuits). The only other known member is musician Don Henley. Although accusations have been made that other Malibu residents are part of TLC, the rest of the roster has remained a secret. The organization has been represented by its attorneys, Linda Thornton and Corin Kahn.

In another lawsuit, TLC sued the city for violating the Brown Act among several other complaints. The court ultimately ruled in favor of the city, but TLC attorney Thornton said last year that the court told the city it could not do anything with a Local Coastal Program drafted by the city. City Attorney Christi Hogin said last year that was not the major issue of TLC’s complaint, and that the court ruled against what was. She added that before the court decision was made, AB988, the law that placed the state in charge of writing Malibu’s LCP, had already been approved. Hogin said it was the state law, not any court decision, that took the drafting of the LCP out of the city’s hands.

TLC lost another lawsuit in which it alleged the unlawful granting of a building permit for a home on Zumirez Drive. The organization appealed the decision, but later withdrew the appeal.

TLC’s major triumph was with joining the Coastal Commission’s challenge of the city’s attempt to put the Coastal Commission-drafted LCP up for a vote. The Coastal Commission won that case at the trial level and the Court of Appeal, with the issue ending when the state Supreme Court declined to take the case. A Court of Appeal panel earlier this month ordered the city to pay TLC $10,000 in attorney fees for its participation in the lawsuit