With two major commercial developments in the pipeline, commissioners get an update on environmental laws they must consider before approving a project.
By Cristina Forde/Special to The Malibu Times
Preparing for a bumpy ride in the effort to place Malibu’s most contentious private development on the ballot by June 2003, planning commissioners listened intently as Senior Planner Stacey Rice reviewed the California Environmental Quality Act (CEQA) at their regular meeting Monday night.
The review, said commission Chairman Richard Carrigan, “was for our own education so we can do a better job.”
Enacted in 1970, CEQA requires state and local agencies to consider the environmental impact of their decisions when approving a public or private project. An Environmental Impact Review (EIR), Rice said, “is the heart of the CEQA process.”
The commission was last faced with certifying a project under provisions of CEQA three years ago, when a storage facility at Cross Creek came under its scrutiny. Only one current commissioner, Ed Lipnick, was sitting at the time.
CEQA projects now in the Malibu pipeline include the 32-unit Forge Lodge bed and breakfast on Pacific Coast Highway at Corral Canyon, set for discussion of EIR certification Sept. 3, and the multi-sited Malibu Bay Company Development Agreement EIR, which would go on the June ballot, if approved by the Planning Commission.
The Malibu Bay Company commercial project and the company’s owner, Jerry Perenchio, have been under attack by members of the Sierra Club and other environmentalists for its size and scope.
The commission, at the request of Senior Planner Drew Purvis, approved a schedule of extra meetings and workshops beginning in October to enable it to meet a March 7 deadline so projects can qualify for a special election in June.
The City of Malibu, as a “lead agency,” is compelled to initiate CEQA environmental analysis on public projects (such as public works construction) or on private projects that are linked to the city by the approval process.
Any activity that may cause a physical change in the environment is a project subject to CEQA review.
The developer pays for an EIR. It costs, according to Purvis, anywhere from $70,000 to $400,000. The city’s consultants, under the direction of city staff, conduct the study, a service for which the city charges a 30 percent consulting fee.
Rice said, “CEQA does not require formal hearings at any stage of the environmental process,” although agencies are encouraged to include environmental review in their meetings.
“The planning commissioners must certify an EIR before considering a project,” Purvis said. “After certifying a project they have up to six months to consider that project.”
During Rice’s presentation Monday, the five Malibu commissioners sought to clarify their responsibilities and powers under CEQA.
“I get very nervous when I hear words like ‘substantially lessen,’ [environmental impact],” Commissioner Robert Adler said.
Rice responded, “A developer may move a tree to ‘substantially lessen,’ but we may not find that acceptable. This is why we have thresholds [decisions]-it may seem like jargon at first.”
She said that some issues are easy to quantify, as when a project would eliminate a species of fish, while others are speculative or the subject of disagreement among experts.
“It does still boil down to scientific decisions,” she said. “Although it was meant to be scientific and quantifiable, it does help to refer back to the regulations.”
Chairman Carrigan asked, “What is the criteria to say ‘yes’ and to approve [a project’s EIR]?”
Rice answered, “It comes down to your feelings of thoroughness of the EIR-either you will feel it is thorough and are comfortable certifying it or not.”
Lipnick, who concluded that the commission “is basically seeing if the EIR is properly prepared,” asked if the commission could recommend changes in the project.
“Yes,” Purvis said.
Like Adler, Commissioner Deirdre Roney questioned some of the terminology.
“These are vague terms,” she said. “One is science. One is law. You give us scientific evidence [and] legal standards of evidence we’re supposed to apply to these terms of art,” which will be “re-interpreted in court when someone sues.
“We’re not allowed to set our own legal standards or scientific standards.”
Where, Roney asked, are all these standards we are expected to apply?
It is an ongoing process, Rice said, and CEQA documents can be challenged in a court of law. But the city’s consultants, she said, “have never lost a certification battle. Your decision will stand unless challenged in a court of law.”