Two multistory, $5-million houses on a private beach are at the center of a complex legal battle set for court May 31, when representatives of two rival Malibu factions will face off over an alleged infringement of city zoning laws.
Representing the plaintiffs is attorney Frank Angel, who is suing the city and the homeowners on behalf of the Sierra Club. Angel has close associations with a group of Malibu environmentalists and activists loosely associated with Malibu Coastal Land Conservancy and founder Gil Segal.
On the other side is City Attorney Steve Amerikaner defending after-the-fact city variances granted for the Latigo Shores Drive beach houses. Evangelina and Russell Shears own the houses, designed by architect Mike Barsocchini, a longtime foe of Segal.
Political observers say the lawsuit is just one more arena where the political foes are clashing.
The lawsuit challenges the height of the two houses, which fell under dispute in March, 1999 after City of Malibu building inspectors noticed that the 36-foot elevations violated the city’s 24-foot height limit at the site and ordered construction to be stopped. Shears’ attorney, Alan Block, points out that the city had approved the plans two years earlier, but apparently did not notice the violation during the plan review process.
“There was no reason to notice it,” he explained. “Neither did my clients’ builder, architect, contractor, or anyone else, because it was an honest and understandable slip-up. The property couldn’t be developed any other way. That is the only logical way to build there and it is in conformance with all surrounding property.”
But Angel called the violation willful, adding that his law firm took the case because it sets a terrible precedent.
“They knew what they were doing when they did it, and the Sierra Club says that under such circumstances, variances should not be granted.” he said. “When they got caught they willfully ignored stop work orders. In situations like that, retroactive variances should not be allowed.”
Angel is asking that the violation on the 4-bedroom, 4 1/2-bath properties “be corrected,” but he stopped short of explaining how. Although the only technical way to correct the violation is to demolish the houses, Angel will not elucidate, saying, “Let’s wait and see what Judge Dzintra Janavs decides.” His petition for a writ of mandate also seeks $8.5 million in fines.
Amerikaner said he is hoping the case will be thrown out because it is based on building code procedures rather than environmental issues. Establishing a legal precedent could make it impossible for cities to enforce their municipal codes.
“I tend not to want to use words like frivolous,” said Amerikaner, “but most cities, including Malibu, have innumerable structures built without permits, and people are asked to come in and get them. If you make it impossible for people to comply with the law, they’ll stop trying.”
Amerikaner said a variance’s purpose is to allow people to do the same things their neighbors are doing, but which they cannot do because there is something unique about their situation, which, in this case, is the topography.
“City Council explicitly said it was not considering the fact that the structure was partially built when they granted the variance,” he continued. “They were treating the request as though there was nothing on the property. Angel is basically saying that every time a city notices a pre-existing violation they should tear the building down, get a permit, and then put it back up again.”
The lawsuit is concerned only with process, says Amerikaner, questioning why the Sierra Club would embrace a case with no impact on the environment.
Angel responded, “Allowing this will make it much more likely that developers will tend to get plans approved that do not reflect the development that they’re actually going to be constructing. Then, if they get caught violating the zoning requirements, they’ll attempt to get variances to continue.”
Some speculate that the battle is very personal. Angel unsuccessfully represented Segal one and a half years ago when Segal tried to block construction of his next-door neighbor’s swimming pool, which also had been designed by architect Barsocchini.
Meanwhile, Shears, who, at 75 years of age is a diabetic who has had a stroke and faces possible open-heart surgery, says he is being victimized by the lawsuit.
“I only wanted to do everything the city asked, and everything the Coastal Commission wanted me to do,” he explains. “When they asked me to change something, I did it even when I didn’t think I should. I always have been a good citizen, but they’re making me feel like someone who has robbed a bank. They won’t let it go. Even if we win, they’ll appeal–they always find something, then wait until the last minute to appeal it. I can’t get a good night’s sleep. The servicing of my loan is substantial. The maintenance and upkeep are horrendous. Costs are adding up. I can’t understand why they would do this to a sick man.”