Coastal clears way for bluff staircase appeal

0
117

The California Coastal Commission determined there is a “substantial issue” regarding the Malibu City Council’s approval of the coastal bluff project.

By Jonathan Friedman / Special to The Malibu Times

A private stairwell proposal for a coastal bluff off Westward Beach that was rejected by the Planning Commission and approved by the Malibu City Council will get a third hearing from the California Coastal Commission.

At last Thursday’s meeting in Long Beach, the Coastal Commission determined there is a “substantial issue” regarding the Malibu City Council’s approval of the project for property owner Clark Drane. This action allows an appeal filed by commissioners Sara Wan and Mary Shallenberger to get a hearing.

Prior to the Coastal Commission’s action, Coastal Deputy Director Jack Ainsworth made a presentation in which he said the council’s approval of the 110-foot long, three-foot wide stairwell violated the Malibu Local Coastal Program.

“The Malibu LCP clearly does not allow the construction of private stairways on coastal bluffs …” Ainsworth said. “In addition, the ESHA (environmentally sensitive habitat area) protection, visual resource and hazard policies of the LCP would not allow for such a stairway down a coastal bluff, particularly this bluff.”

Ainsworth said that if this stairwell were allowed to be built, it would create a bad precedent. “You could imagine the cumulative effect if every single house along these bluffs had a stairway running from the top of the bluff to the bottom,” he said.

Councilmember Andy Stern, who voted in favor of the permit, said in a Monday interview that Ainsworth’s argument about precedent was “nonsense.”

“That’s just making something up to justify a conclusion,” Stern said.

Stern said the Drane property presented a unique situation because he believes there is evidence of a previous stairwell on the site and that if the stairwell could not be built there, Drane could sue the city on the grounds that permit denial amounted to a taking.

Drane’s attorney, Richard Scott, presented those arguments during the Planning Commission and the City Council hearings and in a letter to the Coastal Commission. His justification that permit denial would be a taking is based on the concept that the easement proposed for the stairwell is a separate parcel from the nearby home. And the easement is too small for the construction of anything else.

Ainsworth told the Coastal Commission this argument was flawed because an easement cannot be considered a parcel. Scott cited legal rulings in his letter to the Coastal Commission that he says back up his argument.

Scott could not be reached for comment for this article.

Stern said on Monday that this situation is an example of why the Coastal Commission should not have written the Malibu LCP. He said the city council is left to interpret the document.

“We have no obligation, zero obligation, to interpret it the way they want it to be interpreted,” Stern said. “Now, they have the right to appeal and interpret it how they want. But until it gets there, we can make our own interpretation.”

The city council vote to approve the permit was a tight 3-2 decision and included a heated exchange between council members Stern and 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 city council rejecting their recommendation. He said the council had “ignored the law” and compared the permit approval to Vice President Dick Cheney ordering lawyers to write torture memos saying torture wasn’t torture. Several council members at the following meeting blasted Mazza for his comments.