Malibu city attorney disagrees. A Santa Monica Superior Court judge will hear arguments on the issue next month.
By Jonathan Friedman / Assistant Editor
Before the city can contest California Coastal Commission head Peter Douglas’ support of an overnight camping proposal for Malibu, the city attorney must prove Malibu has the legal right to make the challenge. The state Attorney General’s Office recently submitted a petition to the Los Angeles Superior Court claiming Malibu’s lawsuit filed in July against Douglas has no basis because the Coastal Commission voting body must take action on the proposal before any legal challenge can be made. Judge James C. Chalfant will hear arguments on the state’s claim at the Santa Monica Courthouse on Oct. 3.
This is the latest chapter in an ongoing battle between Malibu and the state regarding overnight camping. The conservancy, a state agency, wants to bring overnight camping and other parks enhancements to the city, while Malibu officials have proposed banning overnight camping on public land. Applications for the rival requests have been submitted to the Coastal Commission, and the 12-member panel is expected to vote on them sometime early next year.
This particular court battle involves the conservancy’s proposal. The method the conservancy used to apply for its project required the OK from Douglas. He gave the application his blessing in the spring, and the city sued him.
Douglas’ approval did not mean he necessarily supports the content of the conservancy’s application, but rather that he believes the conservancy has the right to make the application. For this reason, state attorneys have argued the city does not have grounds for a lawsuit because development issues are not supposed to go before a court until after the administrative process has been exhausted. For example, a developer could not sue the city after the Planning Commission rejects a project, because the decision could still be appealed to the City Council. But a suit could be filed after a council rejection.
“Indeed, it [the city] still has the opportunity to participate fully in the [Coastal] Commission’s review process, public disclosure process and ultimate public hearing,” the Attorney General’s Office wrote in the document submitted to the court. “And in that process, Malibu may convince the commission to adopt the city’s position. Additionally … Malibu may seek judicial review of any commission decision … Malibu simply has no standing at this preliminary stage to seek relief in the courts because it cannot as a matter of law allege any injury.”
City attorney Christi Hogin said this week state attorneys have missed the point. She said the city’s suit is not challenging any potential commission decision, but rather Douglas’ allowing of the process to proceed.
“In the Coastal Commission regulations that the Coastal Commission adopted themselves, they actually say that Peter Douglas’ decision is final,” Hogin said. “And all final decisions are subject to judicial review. That’s the checks and balance system. To have courts review the final decisions of government agencies, that’s what keeps Peter Douglas from being a tyrant. It’s what keeps city councils from being tyrannical.”
The conservancy’s project application was made this year through a rarely used procedure called a Local Coastal Program Amendment Override. Using this method was necessary because the city had made its application late last year to amend the LCP to ban overnight camping. The Coastal Commission has the final say on LCP matters. Hogin has said the conservancy’s request does not qualify for the LCP Amendment Override Procedure for various reasons.
Although Douglas has not given a public opinion on the content of the conservancy’s application, he has publicly stated several times he opposes the city’s application to ban overnight camping. Douglas does not have a vote on the commission, but his opinion is highly influential.
Malibu’s application to ban overnight camping came not long after it appeared the city and the conservancy was united on the camping issue. After a series of heated meetings and litigation threats, the two entities had reached a tentative compromise in early 2007 that called for some overnight camping sites in conservancy-owned Malibu parks as well as in the city-owned Charmlee Wilderness Park, in addition to other features, including the creation of a Coastal Slope Trail connection of the east and west ends of Malibu.
Despite a great deal of opposition from Malibu residents to the compromise who feared any form of overnight camping, the city’s Planning Commission endorsed most of its features in October. However, opposition increased exponentially after the two fall fires, which destroyed many homes, some businesses, and damaged others.
The council in early December voted to reject nearly the whole plan, except for the trail feature. It then made its application for an overnight camping ban, and the conservancy followed with an application of its own.