Silverstein refuses to attend closed sessions on threatened skatepark litigation
Malibu City Councilmember Bruce Silverstein has made good on his threat to report his fellow City Councilmembers for alleged violations of the Brown Act, a long-standing California law that generally requires deliberations by legislative bodies to be held in public. Silverstein sent a letter to the Public Integrity Division of the Los Angeles County District Attorney’s office to report that a majority of councilmembers met twice in February to discuss a threatened lawsuit by luxury property developer Scott Gillen in connection with a permanent Malibu skatepark in the works for more than a decade.
The litigation threat was made during a public hearing to consider approval of a Coastal Development Permit to construct the skatepark, to which the developer of the nearby homes objected. Gillen appealed the Planning Commission’s approval of the skatepark, demanding the skate bowl be lowered by 2 feet and moved 10 feet to the west to ameliorate noise leakage to the estates he’s building on the property abutting Bluffs Park, where the skatepark is to be constructed.
Gillen offered to pay $150,000 for the changes. Any overruns would presumably be absorbed by the city. Silverstein contends that under the Brown Act, the City Council was not permitted to move to a closed session to discuss the matter absent an initial finding by the City Council that there is a “significant exposure” to a lawsuit.
Under Silverstein’s interpretation of the Brown Act, where the city attorney advises that a significant exposure to litigation exists, the council can move to closed session solely for the purpose of forming its own opinion as to whether a significant exposure exists. If it so finds, the City Council must return to open session to report its finding. At that point, the council could return to closed session to discuss the merits or possible responses to the threat. Silverstein alleges that here, after the council went into closed session, it discussed the issue without making a finding of significant exposure or alternatively failed to appropriately notice the purpose of the meeting. Silverstein conceded that prior practices of the Malibu City Council and other municipalities have followed the city’s approach, but he believes notwithstanding that it violates the Brown Act’s plain meaning.
If a Brown Act violation were found to have occurred, possible consequences under the law could include the voiding of the City Council’s actions at that meeting and assessment of court costs and attorney’s fees against the city’s general fund. The genesis of the skate park site, which was transferred to the city in connection with the Planning Commission’s approval of the development of the gated enclave of uber-luxury homes, was also discussed.
“You also realize the whole reason we have this piece of property is because they made a deal to give it to the City of Malibu,” Councilmember Paul Grisanti said Feb. 26. “The temporary skatepark they put in, they paid for that.”
Grisanti said he favored avoiding litigation by agreeing to the developer’s demands and “making the deal on the table” in order to speed construction.
Councilmember Doug Stewart suggested that absent such agreement, litigation by Gillen would delay the skatepark by at least a year. Stewart praised the city’s legal counsel for the advice to meet in closed session.
“Our legal counsel is the largest municipal legal counsel in the State of California,” Stewart said. “They opined we’re following the rules.”
Silverstein countered both councilmembers saying, “It’s difficult to kowtow to a threat that’s frivolous. But I don’t know that because we’re not allowed to know a damn thing about the merits of the appeal … because our legal counsel won’t let us know that … My guess is it’s damn close to frivolous … I think it’s the height of irresponsibility and recklessness of this council to be making changes at the drop of a hat because one person who’s got a lot of money says, ‘I’m going to sue you.’ What message are we sending to deep pockets?
“Paul’s an apologist for developers. Of course, Mr. Gillen gave up the property. He got things in exchange. He didn’t just graciously give up the property. He got to develop his five $50 million homes. What kind of nonsense from our real estate member here? This is all about money, all about power and it makes it difficult to make decisions that aren’t going to have negative impact down the line.”
Silverstein reiterated his belief on the alleged Brown Act violations, and countered Stewart’s statement on legal counsel.
“I believe these closed-session meetings this council had are illegal,” he said. “I know our esteemed counsel from BBK [Best, Best, and Krieger], who Doug says is the preeminent municipal firm in the state, they’re not one of the top firms in the state, but they are a municipal firm. There are plenty of firms substantially better.
“They’re telling us this is lawful. They have to tell us that, because this is the way they do closed sessions. They couldn’t possibly take the position upon being shown the language and having a discussion about what the statute says that you’re right we can’t do this. They’ve been doing the same thing for time immemorial.”
The council heard more than two hours of pleas from the public at the Feb. 26 City Council meeting urging the council to move forward on the skatepark.
“We have a responsibility here to make improvements for our community and make sure our residents have the facilities that they are clamoring for,” said Councilmember Marianne Riggins. Grisanti added, “We are all trying, some of us are trying to get things done … other people are trying to get things not done.”
Mayor Steve Uhring responded, “No, what I am trying to do is make things better.”
The council meeting ended well after midnight.