March 31, 2006
By Jonathan Friedman/ Assistant Editor
A state appellate court has stuck with its October decision that the City Council violated the Brown Act, the state’s open-meeting law for local governments, when it approved a settlement agreement with a developer in 2003.
A three-judge panel from the Court of Appeal’s 2nd District issued a unanimous opinion Thursday affirming its October decision that the council violated the Brown Act by approving a zoning change to a Trancas property during the meeting’s closed session, the portion of the meeting when lawsuits and real estate matters are discussed and the public is not allowed to attend.
Presiding Justice Candace Cooper wrote in the opinion that because a zoning change requires a public hearing, the council members “generally may agree to such terms and settlements in closed session.” However, she added, “What they may not do is decide upon or adopt in closed session a settlement that accomplishes or provides for action for which a public hearing is required by law, without such a hearing.”
The court panel had agreed to reconsider the Brown Act matter in October after the case had received statewide attention, including letters from the city and county of San Francisco and the League of California Cities, complaining the ruling would unfairly set a precedent requiring local governments to negotiate settlements in public while the developer could observe the discussion.
“It would be like trying to sell your house and having to say what you’ll really take for it to the buyer; it ends negotiation,” said Councilmember Sharon Barovsky, who said she had not decided if she would support petitioning the Supreme Court to hear the case.
But Marshall Grossman, board member of the Trancas Property Owners Association, the property owners group representing Broad Beach that had filed the lawsuit over the agreement, said this decision was simply restating what the law had intended.
“There has always been attention between the desire of cities, Malibu included, to negotiate behind closed doors and the desire of the public to have greater transparency,” Grossman said. “This decision should do no more than to ensure what is negotiated behind closed doors does not interfere with the public’s right to participate in those decisions.”
If a city official knowingly violated the Brown Act, that official could be criminally prosecuted. However, in the 53-year history of the act, there has never been a successful criminal prosecution involving a violation of the law.
The settlement, which would have increased the zoning of the property to allow for the construction of 32 town homes on a portion of the 35-acre property located on Pacific Coast Highway just west of Trancas Canyon Road in exchange for a donation of land to the city, was also deemed invalid by the court for environmental and municipal zoning law reasons. But the court had already made those decisions in October, and was not reconsidering those portions of its ruling.
Alan Block, the attorney for the developer and property owner, Trancas PCH, said the city and his client could now negotiate a new settlement using the court’s decision as the parameters. Dean Isaacson, a Trancas PCH partner, said he wanted a hearing to take place at the next council meeting on April 10 at which time the council would vote on a revised agreement.
Barovsky said that would be impossible, since there was already a full agenda for that meeting. And she said she would not support having the council vote on a new agreement until a community meeting had taken place on the issue, since Isaacson had recently amended the agreement to increase the amount of land he would donate.
Even if Malibu and Trancas PCH reach a new agreement, there is the possibility the Trancas Property Owners Association filing a lawsuit over it. Grossman said if a new agreement is signed that brought out the same environmental concerns the association had regarding the original one, his group would “fight him [Isaacson and Trancas PCH] tooth and nail and he will not be successful.”