From the Publisher/Arnold G. York
Litigation is a treacherous business, particularly when there are a great deal of written records around. You can never tell what people are going to find when they go digging for evidence. In the old days, all you had to worry about were paper records. Today, it’s more than just pieces of paper. There’s e-mail and computer hard disk, and, most of all, there is the notorious “Forward” button on every computer, which lets anyone send copies of every piece of info sailing off into cyberspace to a dozen friends. Once a lawsuit begins, there is always that loose memo that someone thought they shredded years ago that comes popping up to the surface. If it’s very good, we lawyers love to call it the “smoking gun.”
Well, the battle over the Malibu Local Coastal Program (LCP) has spawned a dozen or so lawsuits, and little wisps of smoke can be seen rising in a number of places. Whether those constitute smoking guns-well, I’ll let our readers be the judge.
Recently, a memo relating to AB 988 surfaced. It was stuck deep in the file cabinets of a legislative committee, and it recently got copied in connection with one of the lawsuits. A few years ago, the state Legislature passed AB 988, the legislative bill that took away from Malibu the right to draft its own LCP, and, instead, gave it to the California Coastal Commission. The Coastal Commission, its then Chair Sara Wan, and its Executive Director Peter Douglas insisted again and again, publicly and privately, they had nothing to do with the bill, that it had been forced down their throat by the Legislature, and they hadn’t wanted it but the Legislature had tied their hands.
Bingo! The recently discovered memo tells a very different story. Far from being an uninvolved spectator, it turns out the Coastal Commission was deeply enmeshed in the creation of AB 988, to the extent that it suggested language to bring Malibu to heel. This particular memo (which we’ve reprinted in its entirety in the Letters to the Editor section for you policy wonks) is from Sarah Christie, the longtime Coastal Commission lobbyist and close friend of Douglas, to her bosses, Wan and Douglas. It was written in August of 2000. It’s all about Assembly Bill 988, and the ways the commission could amend it to make it tougher. Christie had met with Mary Shallenberger, who was the deputy handling environmental matters for Senate leader John Burton of San Francisco (who had appointed Wan and is a longtime Wan ally), and she was reporting back to her bosses with the results.
They were all worried. They were fearful that after the Coastal Commission passed the Malibu LCP, the city simply would not accept it, and, most of all, would not implement the plan. So, much of the conversation relayed in the memo was about various ways the commission could twist Malibu’s arms to make the city implement the Coastal Commission’s version of the LCP.
Some years before, the Coastal Commission, after somewhat similar legislation, had rammed another LCP down the throat of the city of Carlsbad. That city gagged, and then fought the implementation of the Coastal Commission’s plan for the next 10 years. The Coastal Commission definitely didn’t want a replay of that scenario. So here were some of its suggestions about how it might force Malibu to give in.
I quote directly from the memo. I’ve also added my interpretation of what it really meant because these things are often written in code.
What they said-They discussed how “AB 988 could be amended to create more of an incentive for the city of Malibu to actually accept the certified LCP … “
Translation-The city’s never going to buy this, so how are we going to force it to accept it?
What they said-“There is a concern that imposing fines or withholding state subventions may not hold up in court” (Apparently, one of the proposals was the Legislature just take away Malibu’s money, and the Coastal Commission give the city big fines if it didn’t implement the LCP.)
Translation-What’s being suggested is probably totally illegal, so it’s probably not a good idea, besides we could never get away with it because some damn court would probably step in and stop us.
What they said-Peter Douglas’ idea was that if the city failed to certify the LCP then “the Commission would assume all land use permitting authority (in Malibu).”
Translation-What they were thinking is to totally remove any local control over land use and give it all to the Coastal Commission, until the city breaks and rolls over and does what coastal wants it to do. Now, Mary Shallenberger apparently thought it over and told Sarah Christie that, although that would get the Coastal Commission what it wanted, it would not work for the authors (meaning Sen. Burton and then Speaker Bob Hertzberg) whose goal was to get “the Commission out of the role of local planning on a permit by permit basis, and thus reduce Sacramento based lobbying efforts by applicants.” (Which meant they were all sick and tired of getting phone calls from heavy-hitting Malibu money contributors bitching about their sea walls and decks.)
They finally just decided to paper over the entire problem, put the implementing ordinances directly into the Malibu LCP (whether they thought it was legal or not, which meant they cut the city totally out of the loop) and then just to go on pretending that’s what the Legislature had intended all along.
The only thing that could stop them is some judge saying, “No, you’ve gone to far.’ That’s what we’ll find out when some of these cases challenging the proposed Malibu LCP get to court, which will happen very shortly.