Legal minds throughout the state are watching the case closely as some say it could radically change how local governments in California settle litigation.
By Jonathan Friedman / Assistant Editor
The Court of Appeal panel that ruled in September that the Malibu City Council had violated the state’s open meeting law for local governments, the Ralph M. Brown Act, issued a notice last week declaring it would rehear arguments on the matter. But the court declined to reconsider any other issues in the Trancas Property Owners Association’s lawsuit against the city. So even if the Brown Act ruling were reversed, the legal settlement between developer Trancas PCH and the city of Malibu would still be invalid based on the court’s September ruling.
A three-judge panel from the Court of Appeal’s 2nd District ruled on Sept. 26 that a settlement reached between the city of Malibu and Trancas PCH, which granted the developer the right to build a 32-town home project on Pacific Coast Highway west of Trancas Canyon Road, was illegal because it disregarded the city’s zoning code and violated the Brown Act. The council had approved the settlement during closed session, a portion of a meeting not open to the public when the council discusses legal issues with the city attorney and city staff relevant to the subject. The court said the agreement should have been open to public testimony, which is not possible during closed session.
City Attorney Christi Hogin said in an interview this week that the court’s decision was flawed because the settlement agreement did not grant any permits to Trancas PCH. The developer would still have to go through the permitting process, including a public hearing. She also said if the ruling were to stand, it could have devastating effects on the future of Malibu and all California cities’ ability to negotiate legal settlements because it would force them to discuss the issues in public, giving developers and other opponents the ability to listen in on strategy.
Hogin is not alone in this belief; San Francisco Deputy City Attorney Paul Zarefsky sent a letter to the Court of Appeal panel on Oct. 11 requesting it reconsider the matter because “the decision unsettles previous understandings and complicates what has been an easily applied rule.” And this week the League of California Cities came out in support of Malibu and said it would support the city all the way to the state Supreme Court.
“A lawyer must have the ability to give advice to a client. If a city attorney must give the advice in an open meeting, then the city is put at an unfair disadvantage,” said Michele Beal Bagneris, the league’s Legal Advocacy Committee president and the Pasadena city attorney.
Trancas Property Owners Association Board Member Marshall Grossman, a former Coastal Commissioner who is an attorney but does not serve in that capacity for the association, said the municipal legal officials are simply afraid of the court’s ruling.
“Any time a court finds a government agency has violated the Brown Act, it raises concerns among city governments,” Grossman said. “It’s only human nature that the more a city government can do behind closed doors and out of the public view, the greater comfort some government officials have.”
Grossman also has his supporters. California First Amendment Coalition Executive Director Peter Scheer, who is a lawyer and a journalist, admitted that the court’s decision was a radical one, but he said he agreed with it.
“There is a narrow exception to the Brown Act to discuss, behind closed doors, settlements to pending litigation,” Scheer said. “But that can’t be used as an end-run around other requirements in the Brown Act and requirements in other laws that mandate that various decisions of a legislative nature be made in public.”
Scheer said he did not accept Hogin’s argument that the council didn’t actually approve any finalized zoning changes because a public hearing would still have to be conducted. He said by agreeing to the settlement, the City Council had already declared how it planned to vote on the issue, and the public was not able to participate in the meeting when the council members made that decision.
“Can they [the council] be forced to vote that way [to grant the permits when the developer comes before the council for them]? That doesn’t matter,” Scheer said. “In no small way they [the council] have made commitments to act in a particular way in the future.”
Trancas PCH attorney Alan Block said Scheer’s argument is flawed because it is more than just the city that has final say on permitting. The project must receive a coastal development permit, of which the California Coastal Commission has ultimate jurisdiction, and other government agencies must weigh in on the project as well.
A Court of Appeal panel almost never grants a rehearing. But even those who hope the panel will go in a different direction the second time around admit it is impossible to assume that is what will happen. And Dennis Winston, an attorney from a Los Angeles firm who supports the Court of Appeal’s decision, pointed out that his firm represented a client in a 2001 case against a business improvement district in Hollywood in which a Court of Appeal panel declared the district must follow the Brown Act. The panel agreed to rehear the matter, but came back with an even stronger opinion against the district.
The court has asked the parties involved in the case to turn in briefs on the Brown Act matter later this month. The court will not take any further oral arguments.
The agreement between Trancas PCH and the city was reached in 2003 to resolve a dispute in which the developer said it had the right to build 52 town homes and 15 houses on its property. Although even a reversal on the Brown Act decision would not legitimize the agreement in the eyes of the court, Block said it would make it easier to renegotiate for a new agreement, with the city and Trancas PCH adjusting the old one to satisfy the court’s legal concerns.
The lawsuit between the developer and the city is still pending. A status conference was scheduled to take place last week in the Los Angeles Superior Court, but it was continued when the judge recused herself because she had recently purchased property in West Malibu.