Sierra attorneys say they may file an appeal. Mayor criticizes cost of lawsuit.
By Sara Bakhshian/Special to The Malibu Times
Last month a chapter closed in the Sierra Club versus City of Malibu lawsuit regarding the development of beachfront property on Latigo Shore Drive. The defense, which includes property owner Russell Shears and developer Damien Perillo, won its case, but the book may be far from finished.
Once Los Angeles Superior Court Judge Victor H. Person signs the court ruling regarding the two Latigo Shore Drive homes, the Sierra Club has 60 days to file an appeal. The defendants have 10 days to file cost bills, defense attorney Alan Block said.
The issue stems back to 1998 when a city inspector noticed that the two partially built homes exceeded the permitted beachside height by approximately 10 to 12 feet. Shears applied for a variance, and the City Council ultimately gave approval to complete construction on the two homes. At a February 2000 City Council meeting, attorney Frank Angel notified the council that the Sierra Club was filing a lawsuit against the city, Shears and Perillo for violation of the Coastal Act. Superior Court Judge Dzintra Janvs later ruled in favor of the city.
The most recent court proceedings revolve around an alleged violation of grading and beach dumping, according to court documents. The plaintiffs say this also violated the coastal permit. The court found the plaintiff failed to meet the burden of proof that the defendants intentionally violated the law.
Curtis Horton, a former associate of Frank Angel and the principle attorney representing the Sierra Club in this case, said that, while no decision has been made, his clients might appeal the recent court rulings.
“We do believe there are strong grounds for appeal and we will talk with our clients further,” Horton said.
In regard to the city’s cost, Julia James, director of administrative services, said it would take her office a week to manually calculate all fees regarding the case.
However, in a phone interview Sunday, Mayor Ken Kearsley said, “I’m sure it’s in the many thousands of dollars.”
Kearsley said he is disturbed with the amount of money spent on the lawsuit.
“It’s a shame all that money that was spent on attorneys couldn’t be spent on a park or senior center,” he said.
However, when asked about his reaction to the final outcome of the trial, Kearsley replied, “We maintain what we did was proper.”
Kearsley recently announced he is running for re-election for a seat on the council.
But Horton does not consider the lawsuit a waste of taxpayers’ money. The case was important in emphasizing that property owners could not trample on city requirements and get approval from City Council later, he said.
“This is a basic issue of fairness to all citizens developing [properties] under these restrictions placed by the city,” Horton said.
During the litigation process, it was difficult for Shears to sell the properties, Block said. This and the possible addition of attorney fees may show a cost bill significantly higher than the city’s, he said. Shears was ultimately able to sell the properties.
“If we do [recover attorney costs] it will be substantially more than $100,000,” Block said.
However, Horton said, while Block’s clients are the prevailing party and allowed certain costs, attorney fees are not included.
“[Block] seems to be including attorney fees, which he has no basis for covering under this case,” Horton said.
Block also accused the prosecution of trying to scare buyers away from the two properties by trying to include the new homeowners in the lawsuit. However, an October 2002 court decision held that the new homeowners, as well as Shears’ wife, Evangeline, could not be named in the lawsuit.
Before trial, the defense offered a settlement of approx-imately $360,000, which the Sierra Club refused, Block said.
“There were some matters of principle at the time, which prevented a settlement,” Horton said.
Block said in a press release that the ruling was a complete victory for the property owner and the city.
Horton said, in his experience, it is unwise to gloat over a success in the trial court over these matters.
“Often times the appellate court takes a different view than the trial court in these types of actions,” he said.