The Malibu City Council has been given a unique opportunity to vindicate the rule of law.
In December, 2003, Lou and Page Adler asked the planning commission to examine City approval for an 11,000 square foot dwelling proposed for a lot adjacent to them on Carbon beach. The massive structure, with an elevated concrete deck of an additional 4,500 square feet, would extend well beyond the stringlines specified in the Malibu Code.
Unable to obtain review before the planning commission, the Adlers bore the expense of going to court. The court’s opinion is an unequivocal victory for government under law, but it remains to be seen whether justice is done.
The court rebuffed the city’s argument that the Adlers were too late to object. To the city’s startling claim that it didn’t have to give notice of its project approval to the Adlers or other neighbors, the court said simply: “The contention has no merit.” Requiring someone to exhaust a remedy of which they have no notice violates elemental principles of “due process.” Likewise the court saw no merit in the city’s claimed discretion to permit construction 30 feet or more beyond the stringline applicable to everyone else on Carbon beach.
The court remanded the matter to the City Council for action within 60 days consistent with the court’s opinion and California precedent. How it responds is important.
Unnecessary legal and construction expense has resulted already, though responsibly the Adlers have several times cautioned the neighboring contractor against proceeding before the issue was resolved. But issuing invalid permits affects us all. Such disregard undermines the very legal principle that the City claims entitles it to govern on an equal footing with other California municipalities.
Let no one minimize the stakes. This is no neighborhood spat. The Adlers, in asking to be treated with the simple fairness of the law as written, have given the Malibu a second chance to manifest a genuine commitment to the rule of law. I, for one, am betting the City Council will readily grasp this opportunity to be on the right side of the law. And it should.
Douglas W. Kmiec Chair and Professor of Constitutional Law, Pepperdine University