Judge rules Coastal must void development permit


The ruling overrides a coastal development permit that the city and the Coastal Commission approved, agreeing with the plaintiffs that not enough public review time was given for the project.

By Olivia Damavandi / Assistant Editor

The Los Angeles County Superior Court on Nov. 30 decided in favor of two Malibu Colony residents who last year filed a lawsuit against their next-door neighbor and the California Coastal Commission over an application for a coastal development permit.

The ruling, delivered by Judge James C. Chalfant, requires the Coastal Commission to void the CDP it granted to applicant Richard Margolis in July 2008 for the construction of a 5,200-square-foot single-family residence with a 1,368-square-foot, six-car garage in Malibu Colony. The plaintiffs, William and Steve Littlejohn, say the development is too close to the Malibu Lagoon, a protected environmentally sensitive habitat area, or ESHA, and that it would harm nearby trees for various reasons. Though his attorney, Steve Kaufman, denied comment, Margolis, who has until Nov. 10 to file a written objection, indicated he will do so.

“O.J. was found innocent, too, in his first trial but eventually there was justice,” Margolis said Tuesday in a telephone interview. “This is far from over. Justice wasn’t served but I have confidence it will be.”

The Littlejohns in their lawsuit stated that the Coastal Commission, in its issuance of the CDP, violated the California Environmental Quality Act by shortening the public review period of its staff report for the project from 30 to 15 days; failed to meet its duty of consulting with the Department of Fish and Game and the Los Angeles Regional Water Quality Control Board; and failed to describe or analyze feasible alternatives to the project and adequately respond to public comment.

“We are very pleased with the decision,” Frank Angel, attorney for the Littlejohns, said Tuesday in a telephone interview. “This is an important victory not just for the Littlejohns, but for all citizens interested in Coastal Commission permit proceedings.”

Angel said, according to CEQA, the Coastal Commission’s staff reports are deemed the functional equivalents of draft environmental impact reports, and that draft EIRs must be circulated for public review no less than 30 days before a hearing. The Coastal Commission argues that under the Coastal Act, the staff report must be noticed a minimum of 10 days prior to a hearing.

Angel also said the ruling enforces the Coastal Commission’s duty to consult with other state agencies, rather than relying on the product of previous consultation undertaken by a local government when it initially approves a CDP. The Malibu City Council in 2007 issued a CDP for the project based on information in its staff report, which contained consultation from the Department of Fish and Game. Angel said the Coastal Commission’s decision to issue the CDP was made based simply on the information given to the city by that department.

“The judge also agreed that the Coastal Commission has to consult with other entities if their expertise are relevant to the issues raised,” Angel said Tuesday in a telephone interview.

Angel also argued that the groundwater level at the proposed project site will make it difficult to obtain a permit to implement a septic system. (The development is exempt from the Los Angeles Regional Water Quality Control Board’s vote to ban septics in central and eastern Malibu on Nov. 5. It must, however, hook up to a centralized wastewater treatment facility by 2019.)

“The groundwater is less than three feet from the surface,” Angel said. “The bottom of the leach field has to be five feet from the groundwater.”

But while the Littlejohns voice their concern about the effects the project could have on the environment, Margolis said their lawsuit is a way to prevent a house from being built next door.

“You don’t win with a unanimous vote by the Planning Commission, a 4-1 vote by the City Council, and an 11-1 vote by the Coastal Commission when you have a single-family residence in an established residential subdivision that doesn’t ask for one variance that’s an environmental problem,” Margolis said. “Was this really about protecting the environment or was this really about a neighbor not wanting a house next door? The facts are obvious.”