The City of Malibu has been diddling around for more than ten years and could not produce a coherent Land Use Plan (LUP). As a result, under a mandate from the State of California, the Coastal Commission (CCC) has designed its own plan, which is inflicted upon the citizens of Malibu with a total disregard for their due process and property rights, let alone the opportunity to voice their concerns. The commission was obligated to go through the motion of public hearings; indeed, it did listen to the public, shrouded in arrogant condescendence, although “the Coastal Commission staff is not particularly interested in discussing, reviewing or having any other modifications to their ESHA maps or their policies related to them”, (quote from Lichtig, in the Malibu Times, February 28, 2002 issue).
The Coastal Commission LUP is an 82 page masterpiece of legal verbosity, redundancy, contradictory policies, and irrational dictates, with a few constructive moments. It has always been the unique mandate of the California Coastal Commission to protect/restore undeveloped lands, for the benefit of the general public. No one, even the Malibu community branded as “elitist,” would object to such an admirable and legitimate goal. What is truly objectionable and possibly unconstitutional are the following issues, which are threefold: 1 ) the arbitrary designation of Environmentally Sensitive Habitats Areas (ESHAs) and their impact on basic property rights, public health, security, fire hazard and possibly unintended repercussions on wildlife, 2) the creation of public access to beaches and mountains for the recreational purposes of visitors, the issue of liability, and unintended impact on proposed ESHA, 3) the general contradictions between the dictatorial prescripts of the commission and the guidelines and rules implemented, and enforced, by other state and federal agencies, which will leave the ordinary citizen marred in a limbo of fines or indefinite litigations.
1) The first issue regarding ESHAs, whihc aremapped by the commission and cover most of Malibu and therefore most of the private properties. The scientific basis, which led to the determination of an ESHA, is unclear, and certainly should be disclosed to the public. Is the fate of the environment determined by a qualified group of biologists, with an expertise in coastal management and restoration of Mediterranean type habitats or by a mix of garden-variety biologists and well-meaning environmentalists?
The list of inventories, special studies, plans, reviews, inspections, evaluations and certifications which will be required before a building permit can be issued is endless; some are absolutely necessary and legitimate; other studies are so complex that only a qualified biologist, with a particular expertise would be required, at a prohibitive cost. There is no evidence that enough recognized and reputable specialists are around. Because, if it is the true intent of the CCC to save/restore the ESHA, it certainly would not leave these “fundamental” studies of “existing and potential resources” to be conducted by run of the mill biologists, however well intentioned and dedicated they may be, (item 3-35 to 3-50). One can foresee a permit, which, after all the studies are completed, the in lieu and mitigations fees, fees for review and fees for certifications are paid, will reach a cost close to $100,000.00 and probably be years in the making. Only a very rich community (ironically, an underlying target of the CCC) will be able to afford such a permit and the lengthy litigations looming ahead.
Of particular concern are the issues of fire hazard and public health.
The Commission, ignorant of or oblivious to the code and regulations of the fire department has taken upon itself to make its own rules for brush clearance, or so called “fuel modification” (a charming euphemism). The clearance would be minimized at best to protect sensitive habitats and apparently their necessary arthropods (item 3-58 to 3-63). Not only the fire hazard may not be entirely assessed, but also the public health hazard should be mentioned. The accumulation of brushes will facilitate the migration and settlement of rodents close to residences, and one must keep in mind that infections with Hantaviruses associated with rodent’s feces and disseminated through aerosols is not a myth. Increased populations of raccoons could also increase the risk other infections. Similarly, there could be a possible increase of tick infestations and lyme disease. Public Health agencies are working hard at minimizing contact between human and wildlife, and the LUP jeopardizes such guidelines, potentially exposing the public at large to a number of zoonotic diseases (diseases transmitted from animal to man) difficult and costly to control. The issue is the same when it comes to mosquito control, a task which is undertaken successfully by vector control districts, whose mandate it is to implement surveillance and control of mosquito borne diseases such as St. Louis, Western and West Nile virus encephalitis. The restrictions imposed by the commission will hamper such surveillance. The ultimate question to be asked is: Is the Coastal Commission ready to accept (in writing) all legal liability for problems emerging as a result of its ordinances? Neither the Fire Department, Public Health, Vector Control or even Fish and Game should assume liability for a set of rules and regulations which are not part of their policies.
Another demand is the use of a gray water system for any new development. This seems to be contradictory to the Clean Water Act and possibly illegal. Why would the Coastal Commission want to contaminate the ESHA with possible human viral agents, some of which cannot even be properly removed by usual wastewater treatments methods?
Similarly, because the commission wants to protect wildlife and make sure that animals have the free range of the land, only fences permeable to wildlife are permissible (item 3-52- to 3-54). In a very possible scenario, a coyote or a mountain lion could harm a child playing in an unfenced yard; next, the animal will have to be hunted and probably killed; is this protection of wildlife? For the same reasons, the commission is forbidding outside lights at night, because they “frighten the wildlife” (item 3-55 and 56); it is hard to see the scientific basis of such statement, and mitigation of light sources has been used successfully in urban areas to protect birds for example (Hawaii); one cannot help wondering what will be done about the full moon!
In short, it would seem that a property owner has the right to protect his family and friends, from danger, meaning possible two legged or four legged prowlers, disease and fire. This would not be possible under the Coastal Commission plan. Is this reasonable and constitutional?
2) The second issue lies with to ordinances of the Coastal Commission designed to facilitate/create public access to the beaches, increase parking facilities, and foster the establishment of camping area and/or low cost overnight facilities, to extend opportunities for public recreation (Items 2 series). This is absolutely commendable, and yet not without problems.
For a public beach access to be established, the owner of course has to “offer to dedicate”, a metaphor for forced giveaway of land or its equivalent in money. There is also a mitigation fee, which can only be put into a special fund within some organization, which in turn will accept the maintenance and liability associated with the access trail. Until such an organization is found, the owner may be unable to even think of getting a building permit. The liability and maintenance costs associated with public easements mandated by the State should be assumed by the State, or delegated by the State to an organization of its choice.
To increase the availability of parking for visitors, it is proposed that commercial building parking be used over the weekend. The idea has merit, but certainly the commercial entities cannot afford to assume liability for incidents occurring on their premises. So who is going to assume such liability, along with the maintenance these par king lots during the weekend occupation?
The commission has a grand plan of trails to go all the way along the coast and again this is a wonderful goal, but the current approach is far reaching beyond the financial and physical means of any agency. It might be wise to start small and expand. When the commission mentions the necessary seasonal closure of trails to protect breeding birds, one fails to understand what scientific data support such a dictate, given the fact that breeding seasons vary with different birds, that neither the national or State Parks do not have such rules for public trails. If birds who happen to breed mostly in the canopy are of such concern, what about all the bugs, rodents, small and large mammals? The proposal does not make biological sense.
Other ordinances pertaining to the designation of scenic highways and canyons require that houses should not be seen from such scenic spots. This would be very nice; and yet, may we ask the commission where it was for the past 10 years? Numerous 10,000 to 18,000 square foot homes, with two to three stories, have been erected everywhere in Malibu, crucifying the hillsides, and altering the natural drainage of the area at the expense of the neighbors below. Groves of trees have been removed, extensive grading and elimination of chaparral has taken place, all this with the approval of the Coastal Commission. It seems rather hypocritical to castigate a community for the past and obvious failures of the CCC.
Under the CCC LUP many rental units are being converted to single-family residences. This will undermine the ability of the city to provide “according to the law” a certain number of low cost housing units. For the privilege of building a condominium, a developer will have to provide in money or in kind an equivalent amount of low cost housing, another facet of legal extortion.
To mandate the establishment of overnight camping or cheap facilities for recreational purposes, in line with the opening of land to the public, might impinge on the sensitive habitats that the Commission wants so much to protect or restore. It might consider, instead, buying some land and establishing a full beach or mountain park with all the necessary commodities for visitors.
3) The list of misled dictates (maybe with good intent) contained in the Coastal Commission plan is just too long to address. But it is certain that it does constitute a taking of land from private property owners, a protection and restoration of so-called sensitive habitats at the expense of the property owner, and a total obliteration of property rights of the owner within the 25% confines of his home. Should the Coastal Commission be “taking” land and privileges from property owners, by way of blackmail, intimidation, prohibitive permits, five year residential inspections and other dictatorial mechanisms, with no other recourse than obsequious submission, reminiscent of communist, fascists or other authoritarian regimes? The non-elected Commissioners are so engrossed with power that no democratic dialogue is possible, and it appears that the California Coastal Commission thinks of itself as a Ministry of environmental virtue and protection from property owner’s vices.
It is to the benefit of all the coastal residents of California to protect their environment and possibly to become the best at it; but the process should involve all parties concerned, and not be tainted by arbitrary decisions without scientific support, vindictive dictates, and irrational mandates. I urge you to reconsider the terms of this outrageous land use plan, for the City of Malibu or any other coastal city.
Martine Jozan Work, M.D.