Council says it’s the same old people who continually sue the city, with a new name. CAN says the citizens of Malibu do not have enough information to make an informed vote on the development agreement.
By Jonathan Friedman/Special to the Malibu Times
Malibu Community Action Network has filed a lawsuit against the city and the City Council regarding the Malibu Bay Company (MBC) Development Agreement. The suit, filed on Sept. 5, alleges that the City Council’s approval of the agreement violates the California Environmental Quality Act (CEQA), the Coastal Act and various other laws.
“We believe that this City Council has acted illegally and that their actions have placed the future of our wonderful city in significant jeopardy,” Can President Steve Uhring said in a press release issued by the group. “Malibu CAN is committed to stopping this illegal Development Agreement and forcing the City Council to observe the law and respect the rights of each and every resident of our city.”
In its suit, CAN said the project’s environmental impact report (EIR) did not adequately address environmental and traffic impacts the development would present. Also, the group said the EIR should have been revised to address the changes in the agreement that were made during the summer, including the development of the MBC Point Dume property and the proposed wastewater treatment facility on the Chili Cook-Off property. In addition, CAN has said the wastewater treatment facility would give way for the development of 40 homes at MBC President Jerry Perenchio’s Malibu Colony property, something the city disputes. CAN said this issue should have also been addressed in a revised EIR. CAN added that a study should have been done to determine if the agreement complied with California Coastal Commission-adopted Malibu Local Coastal Plan. Another issue for CAN is, it said, is the EIR should have described a range of alternatives to the project and the city’s responses to some of the comments about the EIR were not good enough. Lastly, CAN said the agreement violates the city’s housing element, which calls for more affordable housing.
Councilmember Jeff Jennings declined to comment on the lawsuit, but said it was not unexpected. Mayor Pro Tem Sharon Barovsky said it was the old situation of the same people trying to sue Malibu.
“It’s the same small group of people that continually sue the city and continually lose,” Barovsky said. “The people involved (in the lawsuits) are always the same … they just rename themselves.”
Barovsky said the Point Dume property did not need to be addressed in a revised EIR because the MBC could only build there under the zoning code. She added it would make no sense to
address the proposed wastewater treatment facility in an EIR because the city has not developed a plan for one yet.
“How can we do an EIR on a project that doesn’t yet exist?” Barovsky asked rhetorically.
City staff has said at previous meetings that the creation of a wastewater treatment facility is not actually part of the agreement, but rather just one of many things that could be placed on the Chili Cook-Off site, if the city is successful in purchasing it. In addition, they have said before that, if a facility were to be constructed, a thorough environmental review would
be done.
However, CAN member Ozzie Silna said for the city not to address the wastewater facility in the EIR prevents the people from gaining full knowledge about the agreement, causing them to be unable to make an informed vote in November.
He said that is the reason for the lawsuit, adding that CAN will continue to sue until the people are presented with all the facts and are able to vote on an agreement that has been legally and thoroughly analyzed.
City Attorney Christi Hogin has a different take on why CAN is suing.
“Basically, what the plaintiffs have said is, ‘we don’t intend to go by the will of the voters. If the voters don’t agree with us … we’re going to go ahead and attack it with litigation,'” she said. “Malibu CAN has decided that their Plan B is litigation. That’s just not right.”
However, CAN’s lawsuit has sympathy from Planning Commissioner Richard Carrigan. He said he believes the agreement has an inadequate EIR that should have been revised to include the Point Dume Property and how the wastewater facility would affect Perenchio’s Malibu Colony property.
He said the commission should have gotten a chance to voice its opinion on the EIR, but never got the chance after it rejected the original version of the agreement in May. Carrigan added that the traffic analysis in the EIR is totally inadequate.
CAN asked that the steps involved in the suit be delayed until after the election, because if the people vote down the agreement, the suit would become irrelevant.
However, the city refused that request. Hogin said the reason is because if the city were to approve the deal, it would have a 3-year time frame to purchase the Chili Cook-Off site, and that CAN was just attempting to cause a delay in that period, saying it was all part of a game for them.
CAN has 60 days to compile an administrative record for the suit. Then it has another 30 days to file a brief. The city then has 20 days to file a response. And CAN has another 20 days to respond to that. This means the suit would most likely not make it to court until March at the earliest.