Supreme Court declines to hear LCP case


The city still has another lawsuit against the Coastal Commission regarding the LCP. There are also city amendments to the LCP that have been sent to the state agency.

By Jonathan Friedman/Assistant Editor

Malibu’s quest to bring a California Coastal Commission-created Malibu Local Coastal Program to a vote of the people has likely ended in defeat. The state Supreme Court declined to hear the case, meaning the city will have to accept Los Angeles Superior Court Judge Allan J. Goodman’s and the Court of Appeal’s ruling that Malibu citizens do not have a right to vote on the document. Councilmember Ken Kearsley, in a phone interview, said he would like to see if there is a possibility the case can be moved into the federal courts. But City Attorney Christi Hogin said she does not believe this case involves any federal issues.

Hogin told the City Council after the Court of Appeal’s ruling in August that it was a long shot the Supreme Court would agree to hear the case. Councilmember Jeff Jennings, who is an attorney, had agreed because he said the Supreme Court gets such a large number of requests each year. But, he said he hoped maybe this issue would spark the interest of the court.

“I thought that this case had an issue of sufficient magnitude that they [Supreme Court] would be interested in hearing it,” Jennings said in a phone interview Monday. “But there are a lot of different elements into how the Supreme Court decides what cases it will hear.”

The lawsuit goes back to 2002 when the Coastal Commission, frustrated by Malibu’s inability to write an LCP, wrote one for the city. The LCP is a set of two documents that establishes the rules on development within the coastal zone, a portion of the state the entire city of Malibu is located. Projects in the coastal zone must obtain coastal development permits. Counties and cities that have an LCP can grant coastal permits. Projects in areas without an LCP must obtain the permits from the Coastal Commission.

Saying the LCP drafted by the Coastal Commission was too restrictive, more than 2,600 residents signed their name to a request for the documents to go before the voters. The Coastal Commission said that vote was not legal. This opinion was confirmed by Judge Goodman and later the Court of Appeal. Throughout the legal battle, no coastal permits were issued, stalling development in Malibu. Former City Council candidate John Mazza said, because of this and other reasons, the city should have called off the legal battle following Goodman’s decision in April 2003.

“They were obligated to pursue it [the case] to a certain degree,” Mazza said. “They should have dropped it after the trial court decision. The judge made it pretty clear that the city lost.”

In response to Mazza’s comment, Councilmember Kearsley said, “Mr. Mazza is dead wrong. There were 2,600 voters in this city who signed a petition for a referendum. Mr. Mazza wants the restrictions of this LCP.”

Mazza said he never supported the Coastal Commission-drafted LCP, citing that he collected some of the petition signatures against the documents. He said his opinion that the city should have given up the legal battle was because it was preventing people from being able to obtain coastal permits and because focusing on amending the LCP was a better idea.

The City Council did spend more than a year creating amendments to the LCP through public meetings and with the help of a consultant. The city submitted the documents to the Coastal Commission in the summer. The commission’s staff will spend the next year going through them and then bring them before the commission for a vote no earlier than May 2005. But Coastal Commission Executive Director Peter Douglas said, at first glance, the amendments did not appear to be something he would support.

“The staff has indicated to me that, in their cursory review of the documents, the city seeks to gut what is in the current LCP,” Douglas said in a phone interview Tuesday. “We would obviously not recommend approval of those changes.”

Douglas said the staff would be doing a more comprehensive analysis over the next year in preparation for a recommendation to the Coastal Commission.

Councilmember Jennings said he expects the Coastal Commission head to stand in the way of the city’s goal to create an LCP that can satisfy the commission and the city. But Jennings said he remains optimistic because, although Douglas can influence the commission, it is the 15-member body that has the final say on whether the amendments are approved.

Malibu’s options do not end with the amendments. The city still has another lawsuit against the Coastal Commission that is before Judge Goodman in which it challenges the validity of the LCP because of its alleged inconsistency with the city’s zoning laws and General Plan. This includes a challenge to what many consider to be the LCP’s greatest flaw, excessive designation of portions of Malibu as being environmentally sensitive habitat areas, or ESHAs. Development near ESHAs is highly restrictive. Hogin said that case had been stalled as the city was waiting to see how the referendum case would play out.

All this could become irrelevant if the state Supreme Court affirms a decision by the Sacramento Superior Court and the Court of Appeal that the Coastal Commission is illegally structured because of how its members are appointed. The case of Marine Forest Society v. California Coastal Commission has been scheduled to go before the Supreme Court for nearly two years. If the court does affirm the lower courts’ decisions, this would mean the Coastal Commission would be radically restructured. Many believe this means the Malibu LCP would then become invalid.