Annual event slated for Sept. 30/Oct. 1 in jeopardy due to snag in sending 32-day notice to affected residents
By Barbara Burke
Special to The Malibu Times
For 38 years, the Malibu Triathlon has occurred at Zuma Beach, with participants and citizens providing donations to fund pediatric cancer research at Children’s Hospital Los Angeles.
No so this year, unless the organizers of the event, which was scheduled for Sept. 30 and Oct. 1, appeal a ruling by the Malibu Planning Commission to the City Council, which next meets on Monday, Sept. 25. If they do appeal, the City Council will conduct a “de novo” review of all the facts and details concerning the denial of the use permit.
Against pleas by many attendees at the Planning Commission meeting on Sept. 18 imploring the commissioners to allow the triathlon to proceed, the Commission voted 2-2 to not allow the triathlon to occur. Commissioner Dennis Robert Smith was unable to cast a vote due to technical difficulties he encountered when he tried to attend the meeting by Zoom. The effect of the tied vote means that, as of this writing, the triathlon will not occur.
“We are exploring all options concerning next steps,” Malibu Triathlon Director Brendan Lindner stated on the morning of Sept. 19. “It’s tragic and I am heartbroken — one would think common sense would prevail, but common sense does not always win.”
Lindner added, “I’m all for rules, but more interested in solutions. After producing events that contribute to health and well-being for 20 years, and raising millions for charity, I’ve come to realize that the world isn’t always fair.”
The snafu is attributable to city staff denying the triathlon a temporary use permit on Sept. 8. The denial was a notice to affected citizens, which is mandated by the Malibu Municipal Code, could not be sent to those citizens because the route for the bicycling component of the event had to be reconfigured as the underpass at Zuma Beach remains closed due to flooding attributable to rains in the past few months. A link to the staff report and the Commission’s agenda can be viewed at malibucity.org/AgendaCenter/ViewFile/Item/6269?fileID=53822.
​Malibu Municipal Code Sections 17.68.050(B) and (D) require that the planning director mail a public notice to all property owners and tenants within a 500-foot radius of the subject property and not less than 32 days prior to the proposed event.
The staff report stated, “The notice for the event was required to be mailed on Aug. 24, 2023, since the setup was to commence on Sept. 25, 2023. Given that staff did not have a final racecourse by this date, staff did not have a complete project description or confirmed noticing radius, and therefore, the public notice was not issued.”
​Lindner submitted an application for a temporary use permit on March 8, with a printed list of residents within 500 feet of the proposed race route.
​On Aug. 11, he had a conversation with Mindy Sherwood, the individual responsible for permitting at the Department of Beaches and Harbors, who began investigating the underpass status.
On Sept. 8, Adrian Hernandez, assistant City of Malibu planning director, informed Lindner that the TUP would be denied, where upon the triathlon timely appealed that decision to the Planning Commission.
​An email sent to The Malibu Times by Nicole Mooradian, public information specialist for Los Angeles County Beaches and Harbors on Sept. 18, encapsulates the role of each government agency overseeing the underpass and what occurred in this situation.
“It’s a complicated situation,” Mooradian said in the email. “DBH is responsible for the road itself, but not the surrounding area. We have a permit from the California Department of Fish and Wildlife to clear sediment and debris on the roadway side of the underpass only. We remove this debris after every storm season. (We also did debris removal in July before the holiday; however, we were unable to open the road because of the continued flooding).”
“Caltrans has jurisdiction over the Zuma Creek streambed. Caltrans has cleared the streambed once since the Woolsey Fire, and since then, a significant amount of sediment has built up in the area. Due to this sediment buildup, the water is flowing downhill from the streambed and onto the roadway.” Mooradian continued, “Exacerbating the issue is the fact that Zuma Creek is still flowing into the ocean. In addition to the current flooding in the underpass, there are concerns related to water quality and estuarine fish habitat for species like the southern steelhead trout and tidewater goby. Double-check with Caltrans, but I understand they are pursuing the required permit from California Department of Fish & Wildlife to remove sediment from the streambed before the rainy season. We are also trying to work with Caltrans management to lessen the risk of future underpass closures.”
​Ardent athletes, contributors to CHLA through the triathlon, physicians treating pediatric cancer patients, and researchers at Children’s Hospital Los Angeles implored the commission to let the triathlon proceed. One lone dissenter, Malibuite Bill Sampson, asked the commission to adopt the City of Malibu staff’s recommendation to uphold staff’s denial of the TUP.
​Lindner gave a presentation to the commissioners delineating the timeline of the triathlon’s TUP application and noted that the revised course for the bicycling part of the race had been approved by Los Angeles Lifeguards and the Los Angeles Sheriff’s Department.
“The Planning Department has been helpful in navigating through this challenging situation,” Lindner emphasized. “It’s nobody’s fault that the underpass is flooded. The reconfigured route only affects the bicycling part of the triathlon.”
LA County Supervisor Lindsey Horvath’s West LA field deputy, Zachary Gaidzik, also advocated for the Planning Commission to allow the Triathlon to be held as scheduled. Gaidzik stated, “Supervisor Horvath knows that Brennan Lindner has true dedication and is responsible with regards to organizing the Triathlon. She notes that you should not let bureaucracy
impede the Triathlon bringing help to those who need it. Please support the Triathlon’s appeal.”
​The commissioners debated at length concerning what to do, with Planning Commission Chair Skylar Peak and Commissioner Jeffrey Jennings voting to allow the triathlon to proceed and Vice Chair John Mazza and Kraig Hill voting to deny the triathlon’s TUP.
​“We simply do not have the authority to ignore the due process notice requirement imposed by the Malibu Municipal Code that mandates that 32 days notice be given to residents within the 500 radius of the altered course,” Mazza said. “It is not within our commission’s power to ignore that law.”
​Peak refuted, noting that many attendees had advocated to allow the triathlon to proceed and that it was a longstanding community event that raises millions of dollars for CHLA.
​During the commissioners’ conversation, Lindner was asked whether he could postpone the event until later in October so as to allow the 32-day notice to be given to the affected residents. Lindner noted that rules governing triathlons did not allow a deferral of a race within 30 days of the originally scheduled date and that given other triathlon dates the event could not occur until December, which would be untenable.
​Commissioner Mazza inquired whether the $976,947 raised to help CHLA conduct pediatric cancer research would still go to the hospital if the triathlon did not occur. Lindner responded that a decision concerning that issue had not been made as he and triathlon participants were hoping the commission would allow the event to proceed.
​In the end, Peak and Jennings voted to allow the race to proceed, reading the relevant provisions of the Municipal Code as allowing latitude to the commission to do so. Commissioners Mazza and Hill voted to deny the triathlon’s request to proceed. The dissenters adopted a black letter of the law interpretation, and expressed regret that they did not have any power to waive the notice provision. Because those votes resulted in a 2-2 tie and Commissioner Smith was absent, the triathlon was denied its TUP.
​As of this writing, Lindner and the team at the triathlon are exploring all options available to them. Lindner noted that in addition to the almost $1 million that has been raised for pediatric cancer research for this triathlon, 3,700 participants had trained for months to participate and had made plans to come to Malibu from all over the world next week, and 600 volunteers were scheduled to help with the event.
​“The Planning Commission’s decision is appealable to the City Council,” said Trevor Rusin, interim Malibu city attorney. “If an appeal is received, it will be processed expeditiously so it can be heard in advance of the proposed date for the event.”
​Rusin confirmed that if an appeal is filed, the City Council will look at the issues surrounding the triathlon’s situation, applying a de novo standard of review, meaning that the council would conduct a fresh review of all the facts and regulations and is not obliged to give deference to the Planning Commission’s findings and ruling.
Late on Sept. 19, Lindner informed The Malibu Times that Super League Triathlon, presenter of the Triathlon, is filing an appeal. Councilmember Paul Grisanti stated that it was his understanding that the agenda for the City Council’s Sept. 25 meeting will be amended so the council can consider that appeal. The Malibu Times will update readers regarding any new developments.
The City of Malibu released a statement after The Malibu Times went to press on Tuesday.
“During the September 18, 2023 Planning Commission meeting, the City of Malibu Planning Commission considered the appeal filed by the Race Director for the Malibu Triathlon/Super League Triathlon of the City Planning Director’s denial of the Temporary Use Permit (TUP) for the race.
After consideration of the item, the Commission voted 2-2, a deadlock, on the appeal of the Planning Director’s denial of the TUP. As a result of the vote, the Planning Director’s denial of the TUP stands. The event organizers are expected to file an appeal today (September 19), which would be able to be heard by the City Council during their September 25 Regular Meeting. If the appeal is filed, the staff report, and viewing and commenting instructions for that item will be posted in advance of the September 25 Council meeting at: www.malibucity.org/agendacenter. (The September 25 agenda is already posted and would be amended if an appeal is filed).
The originally proposed race route went through the Zuma Creek underpass (from Busch Drive off of Pacific Coast Highway). The underpass has been closed since March due to buildup of debris and flooding from the heavy rains over the winter. With the additional rain from the tropical storm in August, Zuma Creek is still flowing into the ocean, which is highly unusual this time of year. The U.S. Department of Fish and Wildlife has identified an endangered fish species in the flooded area and will not allow the use of a temporary bridge crossing, which has been used in prior years when moderate flooding occurred.
Unfortunately, an adequate racecourse design was not provided to the City in time for both the public noticing and decision that are required under the City’s Municipal Code. This left the City Planning Director no alternative but to deny the TUP.
The Triathlon organizers have proposed a revised racecourse plan with a smaller footprint which would not go through the Zuma Creek underpass, which would be considered by the City Council on September 25 if the appeal is filed. During the September 18 Planning Commission meeting, the City Public Works Director stated that the revised route proposed by the organizer would provide a safe route.
The City recognizes the benefits of the Malibu Triathlon’s charitable fundraising efforts. However, the City must adhere to its own codes and policies, which are in place to ensure the safety of the community and the event’s participants and spectators.
For more details, see the staff report: https://www.malibucity.org/AgendaCenter/ViewFile/Item/6269?fileID=53822.”