Commissioners address alleged violations of conflict of interest law and defers Lechuza Beach construction decision
By Barbara Burke
Special to The Malibu Times
When the Malibu Planning Commission convened on Oct. 2, Commissioners Skylar Peak and Dennis Robert Smith addressed the allegations that they violated the California Financial Conflict of Interest Law by allegedly voting on matters before the commission in which they have a financial interest by virtue of their being licensed to conduct business in Malibu.
Peak owns Peak Power Electric and Smith owns Dennis Robert Smith Construction, LLC., a business primarily focusing on grading new residential and commercial building sites.
The commissioners addressed the assertions in an Aug. 16 letter sent to City Manager Steve McClary and City Attorney Trevor Rusin by Ann M. Ravel, a University of California, Berkeley, law school professor who has chaired both the California Fair Political Practices Commission and Federal Election Commission.
Commissioner Kraig Hill brought Ravel’s letter up for discussion. The letter “informed that the City of Malibu is in violation of the regulations,” because, by virtue of serving on the commission, Peak and Smith may vote on “matters in which they have a reasonably foreseeable material financial benefit.” Ravel asserted that such conduct has continued since the appointment of the two commissioners. Smith was appointed in January 2021. Peak was appointed in January 2023.
“Both commissioners have routinely voted on development applications before the body, even though the California Code of Regulations §18701 specifies that such circumstances mandate recusal,” Ravel stated. “Both Commissioners must immediately cease to vote on any and all development applications in which they might have any opportunity to bid on a contract for work associated with the application, or with any future applications designed or presented by any of the same development professionals before the body for the current project. Further, because a substantial portion of the commission’s agenda is foreseeably comprised of deliberating and voting on development applications, the council members who appointed those commissioners must appoint new, non-conflicted commissioners in their place.”
City Councilmember Paul Grisanti appointed Smith and City Councilmember Marianne Riggins appointed Peak.
Peak and Smith do not agree with Ravel’s thesis regarding their alleged conflicts, which centers on the idea that their respective companies can benefit from winning contracts to perform local construction projects for which the commission must consider permitting applications and related issues.
“Both Commissioners Smith and Peak have disqualifying financial interests in virtually all development applications that come before them, because it is reasonably foreseeable that their voting on them will have a material effect on one or more of their own financial interests,” Ravel’s letter asserts. “Both they and the city are exposed to liability, both for the consequences of their past decisions and any conflicts that might be allowed to persist. They each should resign or be dismissed immediately. At minimum, the city should suspend their participation in any commission activity, pending an administrative review and public hearing on the matter.”
The City of Malibu and its attorneys are preparing a response to Ravel’s letter, according to city staff. As of this writing, the City of Malibu has received a letter from the Fair Political Practices Commission that on Oct. 3, Ravel formally filed a complaint against Commissioners Smith and Peak, City Councilmembers Marianne Riggins and Paul Grisanti, and the City of Malibu. The notice informed the addressees that Ravel alleged they violated the Political Reform Act’s conflict of interest provisions. The letter also stated that witnesses having information about the allegations include Mayor Steve Uhring and Councilmember Bruce Silverstein, as well as Planning Commissioners John Mazza, Kraig Hill, and Frank Angel. The city and other addressees to the letter have 14 days to respond.
Peak took umbrage at the allegations against his character, stating, “I have never made a decision on a matter that I’ve been asked to consider as a Commissioner and then benefited from it. Often tradespeople such as an electrical contractor are needed far after the plans have been approved and the Planning Department has approved the plans.”
Similarly, Smith denied having done anything wrong. He contended that, “The letter has no statements regarding any wrongdoing. It doesn’t make any sense to say that because you’re contractors, you’re guilty.”
Hill responded that “The letter is not an accusation of conduct. Rather it’s something more holistic than that.”
Both Peak and Smith noted that they had read the League of Cities and Towns’ publication referenced in Ravel’s letter and they are consulting with the city attorney regarding its guidance.
Public comments on Ravel’s assertions differ
Public comments regarding the matter asserted two points of view. Jo Drummond advocated that Peak and Smith must immediately resign because their professions are too interrelated with development efforts in Malibu and the commission’s consideration of applications.
“Why would the city expose itself to such liability?” Drummond queried, noting that if conflicts are discovered, it is possible that prior actions by the city would have to be reversed.
Drummond stated in an email to The Malibu Times after the meeting, “(If) you make your living off development, you will be biased towards promoting and approving development, which both Skylar Peak and Dennis Smith constantly do. I appreciate very much the integrity of Dennis Smith and his claims that he would never bid on development he has approved. However, his work in Malibu is related to many architects and builders that he’s worked with and possibly will work with in the future, so it’s impossible to remain neutral on all applications that come before him. It all obviously affects his livelihood … Skylar Peak has already shown his bias and his financial gaining from projects he’s voted on.”
Developer Norm Haney took an opposite view stating that “If there are experienced decision-makers on the Commission with in-depth knowledge about how the construction process works and who understand the development standards, they can make more informed decisions.”
The city is preparing a response to Ravel’s allegations.
Commission defers consideration of Lechuza Beach improvements proposed by MRCA
Commissioners deferred their decision concerning whether to approve the Mountains Coast Recreational Area’s request to construct improvements at Lechuza Beach, referring various outstanding issues not addressed in the proposed action to staff for clarification.
The years-long proposed project dates back to 2007, when MRCA submitted an application for a conditional use permit and proposed to provide public access to its approximately one-quarter mile stretch of Lechuza Beach.
The proposed Lechuza Beach Public Access Project includes four separate areas in the Broad Beach area and involves construction of public access improvements at Lechuza Beach to improve accessibility consistent with the American with Disabilities Act, including installation of a new ADA-accessible single-stall restroom, an on-site water treatment system, gates, pathways, signs, access improvements, ADA van parking spaces and access aisles, reconstruction of existing view platforms and staircases, and modifications to two turnarounds for the fire department.
Public comments focused on Broad Beach property owners’ concerns that their access easements to the beach be respected and that their deed provisions allowing them 24-7-365 beach access be honored.
Commissioners were concerned that, despite litigation between MRCA and the Malibu Encinal Homeowners Association and those parties’ settlement, questions remain concerning several issues, including the height of proposed walls near the beach, adjacent homeowners’ access rights, the city’s fire department review form being blank, concerns regarding whether a geological assessment should be conducted and the requested CUP only being for 25 years.
“We have to make it clear that those with deed restrictions have clear access to the beach,” Commissioner John Mazza emphasized, stating, “Further, the staff report does not even mention an uprush study. That doesn’t cut it.”
City staff will address all of the commissioners’ concerns and the matter will be slated on the agenda at a later time.