A routine variance request at the Planning Commission Monday sparked a debate among commissioners over fundamental questions of their power and authority, ultimately prompting a call to bring in City Attorney Christi Hogin to help resolve the matter.
The variance request is part of a proposal to build an approximately 9,000-square-foot home on Porterdale Drive near Winding Way. The property owner, Malibu Porterdale Development, is seeking the variance to build on some of the steepest slopes on the 3.5 acre hillside property.
The commission originally reviewed the proposed home in February. A majority of commissioners indicated they would not approve the home because of its visual impact on the neighborhood, so Porterdale Development agreed to make minor design revisions. But the property owner did not adjust the size of the home, and its representative, Mark Cirlin, argued on Monday that because it is lawfully entitled to a home of that size, the commission could not refuse to approve the project simply because it deemed it too large.
“If you feel houses in general are too big in Malibu . . . you can fight for a regulation to make it illegal for homes this size to be built,” Cirlin said. “But in the absence of that, I think homes within the legal [size] limits of the city of Malibu should be allowed.”
Commissioner Charleen Kabrin and Vice Chair Andrew Stern disputed Cirlin’s assertion. They argued that just because the zoning code permitted a 9,000-square-foot home on the site, the commission is not required to facilitate building that large of a home by granting a variance.
“If they want something that requires a variance, they’re taking a bit of a risk,” said Stern. “It is not incumbent on us to say you get it . . . variances should not automatically be granted.”
Kabrin said because a smaller home could be built on the site without encroaching on the steepest slopes, a variance was not absolutely essential for the property owner to build a home.
But Commissioner Ed Lipnick said the commission should not be determining whether a hypothetical house could be built without a variance, but rather whether the house actually proposed could be built without one. In the case before it, Lipnick said, he agreed with the Planning Department that a variance was warranted because the proposed home could not be built without encroaching onto the steep slopes.
“I have a philosophical objection to using the variance process to redesign homes,” he said. “There is no legal basis for denying the application.”
Comments by the two remaining commissioners indicated how they would probably vote on the variance request. Chair Jo Ruggles said she did not like seeing any building on such steep slopes. Commissioner Ken Kearsley said he felt the lot was entirely unbuildable without a variance.
“If you put in an outhouse and a teepee, you would still need the same variance,” he said.
Stern did not indicate how he would vote on the variance request and said he needed some legal advice from Hogin to make his decision.
“I don’t understand what my responsibilities are legally,” he said.
He made a motion to hold off the vote until legal counsel was obtained, and the commission unanimously agreed to the request.