News Analysis

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Judge rules against Malibu

A Superior Court judge comes down squarely on the side of the California Coastal Commission. Denies Malibu voters the right to vote on the Malibu LCP and orders city to issue coastal permits

By Arnold G. York/Publisher

In an anxiously awaited decision, Los Angeles Superior Court Judge Allan J. Goodman came down squarely on the side of the state of California and its agency, the California Coastal Commission in a ruling just issued in the case that legally challenged a Malibu referendum.

Goodman, in a carefully researched and worded 39-page opinion, ruled against the arguments of the City of Malibu and also the 2,600-plus registered voters of Malibu who had signed referendum petitions asking that the Malibu Local Coastal Plan (LCP) be placed on the ballot for voter approval.

The petition to deny Malibu voters the right to vote on the referendum was brought by Jay Liebig and a group called the Taxpayers for a Livable Community (TLC), which has brought other lawsuits against the city and is closely aligned with the antidevelopment forces in Malibu.

In his decision disenfranchising the Malibu electorate, Goodman held that Malibu voters had no legal right to vote on the Malibu LCP because “the Legislature unequivocally intended to make an exclusive delegation of the authority with respect to the enactment of the LCP at issue [to the Coastal Commission] and thereby precludes a referendum on its adoption.”

Earlier in the opinion, Goodman said his opinion doesn’t “disenfranchise the city’s 8,516 registered voters” because “it is clear that the measure can be kept off the ballot if it represents an effort to exercise a power which the electorate does not possess.”

On the issue of coastal permits, the judge ordered that “the city shall implement the certified Local Coastal Program (LCP) adopted by the commission on Sept. 13, 2002 pursuant to the Coastal Act” and, further, “accept and process in a timely manner coastal development permit applications pursuant to said LCP.”

What may still be unclear is what exactly was passed on Sept. 13 and whether changes made to the Malibu LCP subsequent to that date are, in fact, subject to the judge’s order. Also, several lawyers have indicated it will now be up to the City of Malibu to interpret what the terms of the Malibu LCP really mean, and also attempt to reconcile many parts of the LCP that some claim are inconsistent.

In a press release, Mayor Ken Kearsley expressed the disappointment of the council and said, “The LCP is a matter of local control for the people of Malibu. Our residents have been divested of the fundamental right enjoyed by citizens of every other community in California. It is outrageous for Malibu to not be given the same opportunity to plan the state of their community like every other coastal city.”

The council also indicated that it will consider whether to appeal the court’s decision, which will not be final for a few weeks. The city is also pursuing a separate lawsuit challenging the legality of the LCP and the statute authorizing the commission to adopt it (AB988).There are also eight related lawsuits filed by parties other than the City of Malibu challenging the LCP.

Referring to the group Taxpayers for a Livable Community, which funded the lawsuit to block the referendum, Mayor Pro Tem Sharon Barovsky said, “I’m very disappointed that a small group within Malibu joined the Coastal Commission in wanting to take local control away from its citizens. I guess they forgot that we became a city to allow our residents to control their own fate. It’s sad.”

Anne Hoffman, executive director of the Land Use Preservation Fund and a leader in the drive to gather the signatures to put the Malibu LCP onto the ballot, expressed deep disappointment at the judge’s decision.

“It is shocking that Judge Goodman would deny the almost 9,000 voters of Malibu the right to representative democracy and let unelected bureaucrats take total control over the lawmaking powers of our elected officials. We live in America, not in a dictatorship, and I’m confident that this decision will be overruled.”

This decision leaves many current applicants in the unfortunate position of being compelled to spend money to comply with an LCP that will, by necessity, be invalidated in the likely event the California Supreme Court upholds two lower court decisions that the Coastal Commission was unconstitutional when it wrote the LCP.

The battle is far from over. The very size and complexity of the judge’s ruling is a reasonably clear indication that he was anticipating this matter would be appealed and would not end with his decision.