The council must decide whether to petition the Supreme Court to hear the case. If it were to pursue that option, the coastal permit freeze would continue.
By Susan Reines/Special to The Malibu Times
The City Council is expected at Monday’s meeting to discuss what the city’s course of action will be regarding the recent Court of Appeal ruling on the Malibu Local Coastal Program. Last month, the Court of Appeal upheld a 2003 decision by Los Angeles Superior Court Judge Allan J. Goodman that Malibu voters do not have the right to vote on a Malibu Local Coastal Program drafted by the California Coastal Commission. The council has about 40 days from the court’s Aug. 23 ruling to decide if it wants the city to petition the state Supreme Court to hear the case.
Construction projects that have been delayed for two years will have to stay on hold if the city decides to continue its fight. City Attorney Christi Hogan said the city would not issue coastal development permits “as long as the question is open as to whether the referendum is valid.”
“The very definition of a referendum is the voters saying to the lawmakers, ‘No, don’t put that law into effect until we have a chance to vote up or down,'” Hogan said.
The council’s stance on whether to litigate further is unclear.
Mayor Sharon Barovsky said she was waiting to hear a full report from Hogan before deciding whether to support continuing litigation. She said a few residents had contacted her in support of another appeal.
“I think to most people it’s a matter of constitutional right, not building right,” she said. “You have to remember that this was a citizen-driven referendum, not city-driven, so you have 2,500 people who have circulated petitions and they want their day in court.”
Councilmember Ken Kearsley said he was also waiting for more information and input before deciding whether to support another appeal, but he said the issues of right of petition and equal protection might deserve attention in federal court.
“It seems to me it’s a federal issue, not a state issue,” he said. “We have not been protected equally. We’ve been discriminated against.”
Kearsley said residents both for and against another appeal had contacted him. “There are passionate people on both sides,” he said.
Development in Malibu has been stalled since 2002 as the city and the California Coastal Commission have struggled over whether the state body had the right to draft an LCP for Malibu. The LCP is a document that sets rules on development within the coastal zone. Residents in cities that have an LCP can get a coastal permit from the local government, while residents in cities that do not have one must go before the Coastal Commission to obtain a permit.
The Coastal Commission drafted a Malibu LCP after the state government passed a law giving it the right to do so. The law was drafted by the Legislature and put into effect because of complaints of intense lobbying in Sacramento by Malibu residents and a perception that Malibu was not making progress toward drafting an LCP.
In response to a resident petition, Malibu asked the Los Angeles Superior Court, and then the state Court of Appeal, to allow Malibu voters to decide whether to accept the Coastal Commission-drafted plan.
Since the question of the city’s right to vote on the LCP began working its way through the courts, no coastal permits have been issued. This is because the Coastal Commission has taken the stance that the LCP it approved in 2002 is a final document and the city should be issuing coastal permits based on it. Meanwhile, the city has taken the stance that the document must still be voted on and that, in the meantime, the Coastal Commission should be issuing coastal permits for Malibu.
Possible solutions outside of the court
The city has submitted proposed amendments to the Coastal Commission-drafted LCP to the Coastal Commission staff. The staff is reviewing them, and will eventually put them before the commission for a vote.
“All our problems would go away [regarding the LCP] if the Coastal Commission accepted Malibu’s amendments,” Barovsky said.
The Coastal Commission is supposed to take action 90 days from the time the commission staff accepted the application, but the staff has requested that the timetable be extended by a year. The commission will determine at its next meeting whether to grant the staff’s request.
Preparing for the aftermath
The city has taken some action to prepare for distributing permits once some decision is made about what LCP will be used.
In July, the city began distributing invitations to begin preliminary review, based on the requirements outlined in the state-written LCP, of 100 of the projects that have piled up in wait over the past two years. City Manager Katie Lichtig said only 16 applicants responded to the invitations to begin processing even after 80 of the 100 invitations had been distributed.
Architect Mike Barsocchini said he had received letters and forms from the city to pre-process permits for the five projects his firm has lying in wait, and he was currently working to collect the information the permit applications required.
Barsocchini said he believed the city should end litigation now and focus on getting the Coastal Commission to approve the amendments.
“They’ve now submitted their version of the plan and that’s how the process works,” he said. “They’ve played it out legally as far as they can, I think.”
Barsocchini said he believed the city would have no trouble getting the Coastal Commission to grant amendments.
“Cities all over are always amending coastal plans and it never really ends because cities change…They [Malibu] will get the amendments,” he said.
But Kearsley said he thought convincing the Coastal Commission to accept Malibu’s amendments would be difficult. He said, “The way the Coastal Commission is made up now, it’s not a ‘no sweat.'”