Court rebukes council and mayor for conduct.
By Arnold G. York/Special to The Malibu Times
The City of Malibu and Mayor Joan House were dealt a stinging rebuke by Los Angeles Superior Court Judge Dzintra Janavs in a case brought against the city by the Sierra Club over construction of two beachside homes on Latigo Beach.
The case involves charges that the two homes built on Latigo Beach exceeded allowed heights. The Sierra Club, represented by attorney Frank Angel, initially wanted the almost-completed house either lowered or torn down.
In February 2000, the developer applied for and received a variance from the Malibu Planning Commission in a 3 to 2 vote. The Sierra Club appealed to the City Council and asked it to overturn the Planning Commission’s decision.
On the night the case arrived before the council for hearing, only three members were present. Councilmember Harry Barovsky had died and a replacement had not yet been appointed. Councilmember Tom Hasse was stuck out of town in a storm.
Councilmember Ken Kearsley recused himself from the decision because he had been a member of the Planning Commission when the original decision was made granting the variance. Although Kearsley didn’t participate in the decision that night, he was still counted as part of the mandatory three persons needed for a quorum.
The court disagreed and said that when Kearsley recused himself, the council lost their quorum and therefore could not legally act on the matter. Therefore, the Sierra Club never received a fair hearing.
On several grounds, Janavs ordered the council to set aside its decision and grant the Sierra Club a new hearing on its appeal.
But she went on, and in a stinging 10-page decision accused House of being “not a credible witness” and further said; “Ms. House’s deliberate failure to disclose a substantial ex parte [outside of the hearing] contact with Mr. Barsocchini [the architect of both contested homes] is evidence of bias in the context of Mr. Barsocchini’s rather extensive political support for her … As a result, Petitioner did not have a fair hearing.”
The single-family residences have long since been completed and are now up for sale. The City Council will now have to rehear the appeal of the Planning Commission decision but without either Kearsley or House, who was disqualified by the judge from participating.
If the council reverses the decision, part of the building would probably have to be torn down to meet code requirements. If it approves the variance decisions, attorney Curtis Horton, the attorney who would handle the case for the Sierra Club, said the club probably would recommend another lawsuit be filed to contest it.
Another part of the case-whether there should be any attorney’s fees awarded against the city or damages awarded under the Coastal Act against the owners of the building-will go back to court soon for a determination. Damages could run as high as $1,000 to $10,000 per day per violation Horton said.