The council has 40 days to decide whether to petition the state Supreme Court to hear the case. A former City Council candidate said the councilmembers always knew the case against the Coastal Commission was a losing battle, and only continued the litigation to grandstand.
By Jonathan Friedman/Assistant Editor
A state Court of Appeal panel has upheld last year’s decision by Los Angeles Superior Court Judge Allan J. Goodman that Malibu voters do not have the right to vote on a Local Coastal Program drafted by the California Coastal Commission for the city of Malibu. The ruling, filed Monday and written by the Presiding Justice Laurence D. Rubin of the Second Appellate District Division Eight, and signed by Associate Justices Paul Boland and Madeleine I. Flier, stated that “to permit local voters to overturn state enactments would upend our governmental structure and invite chaos.”
Mayor Sharon Barovsky and Mayor Pro Tem Andy Stern said they disagreed with the ruling. The council must now decide whether to petition the state Supreme Court to hear the case. Malibu’s governing body is not scheduled to meet again until Sept. 13, but Stern said a special meeting might take place before then to decide how to respond. The council has 40 days from when the ruling was issued on Aug. 23 to decide whether to petition the Supreme Court.
The ruling marks the latest chapter in a nearly two-year legal battle between the city and the Coastal Commission regarding the Malibu LCP. 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.
In 2002, the Coastal Commission adopted a Malibu LCP drafted by the state agency 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 overbearing lobbying in Sacramento by Malibu residents and a perception that Malibu was not making any progress in drafting its LCP.
Many residents said the Coastal Commission-drafted document was unacceptable, and more than 2,400 signatures were gathered in a petition to demand the LCP go before the city’s voters. This led to litigation in which the state challenged the city’s ability to vote on the LCP and the city challenged the state’s ability to pass a law that called for the Coastal Commission to draft the Malibu LCP.
The court ruled that the state acted appropriately in passing the law because “Malibu stood head and shoulders above other entities in the burden it placed on the commission.”
Barovsky called the ruling ridiculous, adding, “The crust of the whole problem is that a state law was made to apply only to Malibu and not to anybody else in the state. It is not fair that only Malibu, which is not the only city without an LCP, is not allowed to write its own LCP.”
In response to the court’s ruling that Malibu residents are not entitled to vote on the LCP, Barovsky said, “The Constitution of California gives citizens the right to bring issues to a referendum. This court has decided that Malibu citizens are not entitled to that same constitutional right.”
During the past two years, the Coastal Commission has taken the view that the LCP it approved in 2002 is a final document and the city should be issuing coastal permits based on it. In contrast, 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. This difference of opinion has meant that no coastal permits have been issued in Malibu for nearly two years, and nearly 200 residential, commercial and municipal projects have been stalled until the legal issues are resolved. Former City Council candidate Jay Liebig, who also used to be the president of a local organization called Taxpayers for Livable Communities that sided with the Coastal Commission in the lawsuit, said all the projects would not be in the so-called pipeline if the councilmembers had not decided to continue with the litigation, which they knew was a losing cause.
“The councilmembers were acting disingenuously and grandstanding until the [April 2004] election,” Liebig said. “Virtually everybody knew in their heart that this was a losing lawsuit. Now there is going to be pressure to quickly issue coastal permits.”
In recent months, the city has taken some preparations for when it will eventually begin issuing the coastal permits. Liebig said this was evidence that city officials were aware that the lawsuit was a futile and losing battle, and the only reason why litigation continued was because of “a political stunt” to get residents to vote for the incumbents in the April election.
In response to Liebig’s comments, Mayor Pro Tem Stern said, “Jay Liebig’s a guy who was passionate against Measure M, but forgot to vote in the [Measure M] election. I’m not surprised he made a comment like this. I’m glad to see he still lives in Malibu. We haven’t seen him since the [April 2004] election.”
Stern said even if Malibu residents did not have the right to vote on the LCP, it was not the City Council’s job to decide that. He said the council was obligated to take the issue at least as far as the Court of Appeal because 2,400 Malibu residents demanded it. Stern said he has already had two people lobby him about petitioning the state Supreme Court to hear the case, but he is undecided about what to do.
Property rights advocates Dennis J. Seider and Anne Hoffman said they would like to see the city continue with the legal battle, with Seider suggesting the U.S. Supreme Court would rule in favor of Malibu.
Another option the city has is to get the Coastal Commission to approve amendments to the LCP it has submitted. The City Council, with the help of a consultant, wrote the amendments over an 18-month period, submitting them to the Coastal Commission’s Ventura office earlier this year. The Coastal Commission staff has said it will review the amendments and possibly put them before the commission for a vote. That vote will not likely occur until the spring of 2005.
Lastly, there remains the issue of what will happen in the case of Marine Forest Society v. California Coastal Commission, in which the Marine Forest Society has challenged the constitutionality of the state agency because of how its members are appointed. A Sacramento Superior Court judge has already ruled in favor of Marine Forest, with the Court of Appeal upholding his decision. The state Supreme Court is expected to hear arguments on the case sometime soon. If it rules in favor of Marine Forest, some have suggested the Malibu LCP would then become invalid.