Searching for the Malibu LCP

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From the Publisher/Arnold G. York

I was hoping by this week to be able to begin to take all of you through the new Coastal Commission-drafted Malibu LCP. I must admit I was overly optimistic.

Unfortunately, the dust hasn’t even begun to settle and it probably will be several weeks before we can begin to speculate what it all may mean and how it’s going to play out.

Lots of things have to happen first.

The city has to decide whether it wants to appeal to the California Supreme Court. That’s not an easy choice. It’s probably unlikely that the Supreme Court would overturn the decision. Nevertheless, a chance that it might do so may not be the only reason to appeal. We’re all sitting and waiting for the state Supreme Court to set the oral arguments in the case of the Marine Forests Society versus California Coastal Commission. That case could substantially change the composition of the Coastal Commission. It might be strategic for the city to bide its time, file a notice of appeal and then stall to keep the case from becoming final before the Supreme Court deals with the Marine Forest case. It’s possible that we could end up with a more sympathetic Coastal Commission that would make it easier to negotiate changes in the Malibu LCP.

The question is, if the city appeals and stalls, can it also issue coastal permits at the same time or does the issuing of permits automatically knock out any claim it might have on appeal? I haven’t been able to get a definitive answer on this, probably because there is no definitive precedent. There is also enormous political pressure on the city to unplug the pipeline and give people coastal permits, but the problem is no one can be sure they’re valid until they’re tested.

I’ll give you a couple of examples of how this turns into a quagmire. Let’s say the city turns down a coastal permit for somebody to build a house in Malibu because it’s not in accordance with the Malibu LCP. This being Malibu, of course, everybody will sue. The question may be whether the city can enforce the LCP since the city has never adopted the LCP. Can the city treat the administrative actions of a state agency as if it were the law in Malibu or does the city have to pass its own ordinances to implement them? If the city adopts the LCP or passes ordinances to implement the LCP, don’t the citizens of Malibu once again have a right of referendum?

Or just suppose the city decides to go ahead and enforce everything in the LCP, however it does it, in a way that turns it on its head and the Coastal Commission doesn’t like what the city is doing at all. The Coastal Commission tells the city to stop, that it is interpreting incorrectly and the city tells the commission that it’s no longer the commission’s business. The city tells the commission that it is not bound to interpret the statute the way the commission would interpret it and, in fact, the entire idea is to give the localities the power to interpret it themselves as long as what they’re doing is not illegal. Now we all know that what’s ” illegal” is often in the eye of the beholder, so I can see all sorts of litigation over this kind of stuff.

Sometimes you can go back and look at the Court of Appeal decision for some guidance. But, unfortunately, this decision is so devoid of anything but “state wins, city loses” language that it’s virtually worthless in providing any guidance to either the city or the Coastal Commission, so we’re back in a political battle again. Perhaps that’s what the court intended. We’ll soon see.

However, just because there aren’t any answers about the Malibu LCP doesn’t mean the game doesn’t go on. The bombshell this week is that Jerry Perenchio and the Malibu Bay Co. gave what is called a “willing seller” letter to the city indicating that it would be willing to sell the almost 20 acres of the Chili Cook-Off site to the city with certain conditions. The importance of this is that the city can now go out and shop for grants for the $25 million to buy the site. The really interesting part is that Perenchio put two basic conditions on the sale. First, the land can only be used for a park, not ball fields, not even a jogging track. Secondly, the city can put a wastewater treatment facility on the land but that’s it. So if we take it, what we’ve got is a central park for passive recreation uses only. This is by no means a complete description of the offer so I’d suggest you read Jonathan Friedman’s story for more of the details and follow this from week to week as the details emerge.

I’ll pick up the Malibu LCP story once there is something specific to report.