The ruling comes one month after the California Coastal Commission rejected a coastal development permit for the project. The attorney for the project owners says the next option could be to challenge the Coastal Commission decision in court.
By Jonathan Friedman / Assistant Editor
After years of struggle, the owners of Beau Rivage are inching toward their possible goal of building a bed and breakfast inn near the site of their Mediterranean-style restaurant. The California Court of Appeal’s 2nd District last Thursday unanimously upheld a Los Angeles Superior Court judge’s 2004 ruling that affirmed the Malibu City Council’s 2003 approval of the Forge Lodge Bed and Breakfast project.
The three-judge panel’s decision against the Sierra Club, and in favor of project owners Daniel and Luciana Forge, could be moot as it only ensures the validation of a municipal permit, while the California Coastal Commission last month rejected an application for a coastal development permit.
The Sierra Club had challenged the permit for the 16,240-square-foot, 27-unit bed and breakfast on several grounds, including that the environmental impact report for the project was insufficient. The court ruled against every complaint in the opinion drafted by Presiding Justice Paul Turner and affirmed by Justice Orville A. Armstrong and Justice Richard M. Mosk. Sierra Club attorney Frank Angel said he was disappointed with the decision, especially with regard to the EIR ruling because the only information written in the opinion about why the court found the document acceptable was that it met the requirements of the California Environmental Quality Act.
“We [Sierra Club] pointed to several inadequacies in the EIR,” Angel said. “And the Court of Appeal is supposed to state the reason why it agrees with an appellant’s arguments or why it agrees with the trial court’s decision.”
Alan Block, the Forges’ attorney, said he was pleased with the ruling and would be meeting with his clients later this week to decide what to do next. He said one possibility could be to challenge the Coastal Commission’s permit application rejection in court.
“I think there is a reasonable basis to challenge the [Coastal Commission’s] denial,” said Block, who looked to the fact the project has now been supported by the City Council, Los Angeles Superior Court Judge Dzintra Janavs, a Court of Appeal panel, and that even Coastal Commission staff had recommended the voting body approve the project.
Another option for the Forges would be to redesign the project so it meets the Coastal Commission’s concerns. That would include setting back the project further from what the commissioners’ said was an environmentally sensitive habitat area, or ESHA, which must have at least 100 feet of space between it and any development. Block said if the commission were determined to set back the bed and breakfast that much, it would make the project infeasible, then that might be a reason for choosing the litigation option.
The Forges might not be able to simply come back to the Coastal Commission immediately with a tweaked proposal. The application went before the Coastal Commission rather than the City Council in August because, if the commission had granted the permit, it would have functioned as an amendment to the one received by the Forges in 1989 on the same property for a shopping center. But if any substantial changes need to be made to the project to meet the commission’s concerns, it would then need to return to the city as a simultaneous application for a municipal and coastal permit.
“The commission’s decision requires substantial modifications,” said Angel, who said for that reason he was not too concerned about the court ruling. “The Coastal Commission reviewed the project under separate laws that were not before the court, including the [Malibu] Local Coastal Program and the Coastal Act, and it took into consideration ESHA and cultural resource protection.”
Block said he believed it was possible to adjust the project so that it would not need to go before Malibu’s Planning Commission or City Council. And, he said, even if it did require city approval, this did not mean a new EIR would have to be drafted as some have suggested. Block said that was because a project adjusted to meet the Coastal Commission’s concerns would have less environmental issues than the current application, and the existing EIR would satisfy those issues.
The Forges could not just take an adjusted application before the city for a coastal permit and try to avoid Coastal Commission input because a city approval could be appealed to the Coastal Commission.