Malibu property owner faces uphill battle in stairwell case

The chips are stacked against Clark Drane, who wants to build a private stairwell on a coastal bluff, as the Coastal Commission appealed the Malibu City Council’s approval of the stairwell.

By Jonathan Friedman / Special to The Malibu Times

After being denied a permit by the Malibu Planning Commission and getting approval on appeal by the city council, Malibu property owner Clark Drane must plead his case for the right to build a private stairwell on a coastal bluff off Westward Beach to the California Coastal Commission next week Thursday in Marina del Rey. Drane will likely have an uphill battle because Coastal staff has recommended the permit be denied, and the item is before the Coastal panel because two influential commissioners appealed the city council’s ruling.

Coastal staff has recommended the commission reject the request because the Malibu Local Coastal Program, or LCP, does not allow for the construction of private stairwells on coastal bluffs. Also, it says this particular project would disturb what it considers to be an environmentally sensitive habitat area, or ESHA, of native bluff scrub. If Drane were given special consideration, Coastal staff fears, then other Malibu residents with similar permit requests would demand the same treatment.

Coastal staff considers the area to be an ESHA despite admitting it has been disturbed and that non-native vegetation has been introduced to it.

“The proposed project would then result in the removal of all ESHA vegetation within a three-foot wide, 110-foot long area on the bluff face, with additional vegetation removal and/or disturbance along each side resulting from its construction,” the staff report states. “The project does not include any re-vegetation of disturbed slopes. The removal of vegetation, particularly on steep slopes, will allow for increased erosion on the bluff face, which is itself an erosional feature.”

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The report goes on to say that the project has the potential to harm the bluff beneath it and to create other environmental damage. Coastal staff wrote that, as an alternative, Drane could place a “non-structural pathway” in the area.

“This would afford the applicant the ability to walk within and view the ocean from a portion of the pedestrian easement,” the report states. “Such a path could be used for pedestrian access to the bluff top for ocean viewing.”

When contacted last week by The Malibu Times, Drane’s attorney Richard Scott said he did not know the staff report was available. When directed to it, he said he would call back for an interview. He did not do this. A message left for Scott on Tuesday was not returned.

Scott said during the city hearings and in a letter to the Coastal Commission that his client’s property has a unique situation because there is evidence of a previous stairwell on the site. And Scott said denial of a permit presents a taking issue based on the concept that the easement proposed for the stairwell is a separate parcel from the nearby home and that the easement is too small for the construction of anything else.

Coastal staff has denied that the easement is an actual parcel. The staff also says there is no taking issue, and gives a lengthy legal reason in the report for this opinion. Additionally, the report states there is photographic evidence of a previous stairwell on the property, but does not say this is a reason to approve the permit.

Also, the report states that approving this permit would be “detrimental to the public interest” because “it would set a precedent for similar future development allowances that could detrimentally alter the coastal landscape.”

The report further states, “Assuming this [request] was granted, landowners all over Malibu could enter into private easement agreements [with governments] and manipulate easement interests (via threatened takings claims) in order to avoid compliance with the Malibu LCP.”

Coastal Commission Deputy Director Jack Ainsworth presented this argument at a meeting late last year when the commission voted on whether there was a “substantial issue” involving the Malibu City Council’s approval of the permit. Determination of a substantial issue was necessary for the appeal filed by Commissioners Sara Wan (who lives in Malibu) and Mary Shallenberger to get a hearing.

Then Council member Andy Stern, a vocal supporter of the project, in an interview with The Malibu Times, blasted Ainsworth’s reasoning as “nonsense.”

“That’s just making something up to justify a conclusion,” Stern said.

The city council vote last year to approve the permit was a tight 3-2 decision and included a heated exchange between council members Stern and Pamela Conley Ulich. City staff had recommended against the approval.

At the planning commission meeting that followed, Commissioner John Mazza apologized to city staff for the city council rejecting their recommendation. He said the council had “ignored the law” and compared the permit approval (which forced the city staff to rewrite language justifying the permit) to Vice President Dick Cheney ordering lawyers to write torture memos saying torture wasn’t torture. Several council members at the following meeting criticized Mazza for his comments.

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The Malibu Times is the first newspaper in Malibu, serving the community since 1946.

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