Justices’ reversal of Chevron doctrine places federal rules and decisions in question

By Barbara Burke 

Special to The Malibu Times

The United States Supreme Court’s landmark ruling on June 28 in Loper Bright Enterprises v. Raimondo jettisoned Chevron deference, a judicial maxim that for 40 years had required courts reviewing administrative decisions to defer to the expertise of federal agencies when federal regulations and rulings faced judicial scrutiny. The Chevron doctrine resulted in lower federal courts usually ruling for the government when federal regulations or decisions applying them were challenged. 

The Raimondo opinion — a 6-3 decision along ideological lines — places federal rules and decisions in question. In Raimondo, the court held that, under the Administrative Procedure Act, courts must “exercise independent judgment in determining the meaning of statutory provisions,” even ambiguous ones. Now, it is the province of the courts to determine the best interpretation of a federal statute and, in doing so, the courts must use “all relevant interpretive tools,” according to the majority opinion authored by Chief Justice John Roberts. That phrasing presumably refers to interpretive canons employed by the courts when they review a statute or administrative regulation. Importantly, Raimondo acknowledges that a statute may contain an express delegation of authority for an agency to interpret and implement particular provisions and, according to the ruling, courts should defer to such delegations of authority, provided that the agency is properly acting within the scope of its lawful delegation.

Raimondo may assist the City of Malibu’s appeal to the Ninth Circuit Court of Appeals challenging the Federal Aviation Authority’s determinations concerning three of the newest airline flight paths that fly over Malibu. Residents living below those paths claim the airline noise causes excessive noise pollution for humans and animals inhabiting the Santa Monica Mountains.

“The Raimondo decision overruling Chevron helps the city’s appeal,” Interim City Attorney Trevor Rusin said. “We have not yet filed our opening brief yet, but I would anticipate the case will be mentioned.”

Rusin explained that the city’s court appeal seeks to alter the three flight paths, either by requiring planes to fly further out to sea before coming inland to ultimately land at LAX or by having planes fly higher.

“We recognize that the planes have to sometimes cross over Malibu and there is restricted airspace due to Vandenberg [Space Force Base],” he said. “However, we are seeking to have them come in over Malibu at a higher height.”

Rusin also stated, “We are troubled by the fact that there seems to be no penalty imposed when the planes are coming in lower.” 

He also noted that “The FAA does not seem to appreciate that the reality of flights over rural areas such as here in Malibu and the Santa Monica’s is that such rural areas are low decibel areas and when flights go overhead they have a larger impact over such areas than they do over busy urban areas.”

There is precedent for challenging the trajectory of flight paths, Rusin explained.

“In cities of Los Angeles and Culver City challenged the new flight paths over their municipalities, challenging the FAA’s failure to conduct an environmental review.” Rusin noted, adding, “The court ruled for Culver City and remanded the case back to the FAA so that agency could conduct the environmental review.” 

On June 6, the city filed its petition with the Ninth Circuit Court of Appeals, seeking review of the FAA’s February 20th administrative decision. 

“Like every community in America, Malibu needs to be able to enjoy peace and quiet as an important part of community health and wellness,” said Mayor Steve Uhring as he addressed the city’s petition. “However, our residents, as well as the habitats and wildlife of the Santa Monica Mountains are heavily impacted by aircraft noise. I urge the FAA to work with Malibu to find solutions so we can protect our quality of life.” 

Three new flight paths in and out of LAX (HUULL TWO, IRNMN TWO, AND RYDRR TWO) have been identified as having particularly strong noise impacts on Malibu generated by planes during take-off and landing.  The FAA’s February decision would exclude those flight paths from further environmental considerations. 

At the time of the city’s seeking appellate review, its press release stated, “The City hopes to open a dialogue with the FAA about the impacts of these flight paths on the community, the need to take the issue seriously, and to work with the city to develop flight procedures that will reduce those impacts. While that may not be achievable solely through litigation, the City hopes that the prospect of a Court review of the FAA decision will persuade the FAA to come to the table and work with the City to find mutually acceptable solutions.” 

Now that the The Raimondo decision mandates that a court exercise a heightened review of appellate decisions such atthe FAA decision concerning the flight paths over Malibu, perhaps the FAA will mediate or otherwise enter into meaningful discussions with the city of Malibu. Time will tell — and, when something important happens in this arena, The Malibu Times will tell readers.

Nobu defies Malibu order, goes forward within permitted July 4 event

Despite having no permit, Nobu restaurant went ahead with its “Red, White, and Bootsy” July 4 bash. The venue was issued a Temporary Use Permit (TUP) from the city dated June 10 “pending an updated parking and site plan submitted to The (sic) Los Angeles County Fire Department and the Los Angeles County Sheriff’s Department.” The TUP also expressly stated that “[a]pproval of the event is pending approval of the LACFD” and “[a]pproval of the event is pending approval of the Sheriff’s Department.” The TUP also expressly stated that “[t]he event’s approval will be pending an updated parking plan submitted to the Public Works Department.” Finally, the TUP expressly stated that“[i]f any agency approval, additional information, or signed agreements are still pending by June 26, 2024, the Temporary Use Permit will be null and void.” 

No appeals to the conditional TUP were filed.  It appears appeals are expensive, at a cost of $750 to the appellant.

Nobu was notified two weeks later of its denial. Reportedly, a parking plan was not OK’d by the Public Works Department.

The event continued to be advertised and promoted on social media from June 26, the date the TUP was declared null and void, through July 4.  In an eleventh-hour move, the city issued a statement on its website July 3 at 6 p.m., less than 24 hours before the event, stating Nobu “may not hold the proposed event.” By that time, tickets for tables ranging from $10,000 to $75,000 had already been sold.

The TUP originally issued, while conditional, was based on an application with many inconsistencies and flaws. The application represented that the event was by invitation only when a cursory search of the web revealed that tickets were being advertised online. The application stated no outdoor space would be used when videos of the prior years’July 4 events posted to YouTube and Instagram document the restaurant’s outdoor patio filled shoulder to shoulder. Last year, the event was so overcrowded that limos and party buses were abandoned on PCH, creating a safety hazard and the mother of all traffic jams. Seven hundred guests overcrowded the venue’s capacity of just over 200. At the time, Nobu received a meager fine of just $1,821 for all violations. This year, the conditional TUP threatened a $5,000 fine for violating its terms.

In addition, the 2024 TUP application’s representations as to guest access were inconsistent with what was observed on the day of the event. The application represented that all guests (save a limited number of VIPs) would be arriving by shuttle from a Santa Monica location with no drop-offs, ride shares, or walk-ins allowed. The Malibu Times was on scene at the start of the event to observe signs on Nobu property marked as “Rideshare Drop Off” and “Rideshare Pick Up.” Guests lined up to enter were not observed wearing scannable wristbands, and in any event, white-clad party-goers could be observed arriving by limousines and walking in from nearby parking lots. A few shuttles were seen dropping off in Nobu’s parking lot. Some drivers managed to snag parking across the street; others were turned away with no valet service. Three deputies were on hand to make sure traffic stayed flowing. Despite a few illegal turns, traffic was fairly normal for a busy Nobu night. One City of Malibu code enforcement officer was on scene as well monitoring the situation.

Malibu Deputy City Manager Alexis Brown issued this statement: “The City of Malibu is aware that Nobu proceeded to host their Fourth of July event, despite the denial of their temporary use permit. We are currently reviewing this matter, and will take the appropriate action in accordance with our regulations.”

Just prior to the party going forward, an attorney who purports to represent Nobu sent the city a demand letter dated July 4, 2024. In the letter, Perry Wander stated, “Nobu met all the conditions required for the special event permit, and the revocation of Nobu’s permit without factual support and due process constitutes an arbitrary refusal to perform a ministerial act.”

In sole case support of his argument, Wander references 1963’s Ellis v. City Council of Burlingame, the court concluded that a building inspector could not deny the appellant “a permit to which she was clearly entitled as a means of coercing her to comply with separate and entirely unrelated provisions of the building code …”  Unlike the Ellis case, which was over the refusal of a permit to build a swimming pool, the Malibu Code’s TUP provisions vest in the Planning Department discretion to issue or not issue permits based on various issues of public safety. Despite the June 10 conditional TUP’s express requirements that various additional agency approvals be obtained and additional satisfactory documents submitted, Wander asserts that the issuance of the Nobu permit was, like the one in Ellis, a mere“ministerial act,” and that “an arbitrary refusal to perform a ministerial act without factual support or legal justification is improper. We demand the immediate reinstatement of the permit and compensation for all damages incurred due to this unwarranted revocation.”

Wander also posted a Facebook response to City Councilmember Bruce Silverstein threatening retaliation: “Any city council member that jumped on the bandwagon and opposed this permit, Mr. [Larry] Ellison and the owners of Nobu will do everything they can to make sure that whoever is running against them in the next election is extremely well-funded.”

Wander indicated in his correspondence to the city that he represents “Nobu.” The TUP applicant was Wavebreak LLC. It is unclear if Wander is authorized to speak for or represents Ellison in his individual capacity. The Malibu Timesemailed Wander for clarification, but has not received a response.

Meanwhile many concerned residents are questioning if Thursday’s fatal accident that occurred on PCH just after the Nobu party ended at 10 p.m. and a mile away from the restaurant, is connected to that event.

There were no tables sold without multiple bottles of Champagne, tequila and vodka. The Los Angeles Sheriff’sDepartment is investigating the crash that killed one and injured two others. They’re looking into possible speeding and DUI as the cause.

Kith, the first business in Cross Creek Ranch, opens to great fanfare, emulating a secret to successful retail in Malibu

By Barbara Burke

Special to The Malibu Times

Curious passersby craned their necks trying to catch a glimpse of just how long the crowd was as excited consumers queued in front of Kith with great anticipation on July 4. The first business to open in the Cross Creek Ranch, a property that ultimately will house a multitude of retail, restaurant, and office tenants in its 11 buildings, Kith is a lifestyle brand that offers its ever-popular sneakers, shoes, bags, men’s, women’s, and kid’s apparel and accessories. 

Frankie’s Bikinis will open mid-July and ChitchatCoffee + Matcha and Sunroom will open afterward, according to a representative from Pacific Equity Partners, which developed the retail center. Clark’s Oyster bar is one of the tenants in design, in plan check or under construction, the representative added.

Kith enjoys great customer loyalty — after all, sneakerheads and fashionistas can revel in the store’s latest signature collection and they can enjoy one of the ever-evolving treats offered at the business’ ice cream and cereal bar.

“I have been following the Kith brand for 10 years now,” said Keith Patiag as he chatted with others in the long line that showed up again on July 6. “I like how they mix up their styles, and my son and I like the ice cream.”

Kith has a signature flavor of ice cream or cereal, no?

“Like their merchandise, they’re always changing things and offering new flavors of ice cream and cereals,” Patiag said.    

Dropping a line

It used to be that when one dropped a line, he sent a message to someone. In a manner of speaking, that is still the meaning of the phrase in retail — only with a twist.  Retailers such as Kith keep consumers intrigued — and opening their wallets — as they periodically drop new lines of their fashion offerings, announcing the timing of the newproducts well ahead of time — and often — to keep customers excited and engaged. 

If you’re in the know, as in if you sign up for the company’s loyalty program, you’ll get emails teasing about the latest apparel offerings before they’re on show. The second tier of Kith Loyalty™ offers customers early and exclusive access to products, including made-to-order capsule collections. Of course, there’s a Malibu edition.

Kith is just one in a plethora of retailers to build and keep customer loyalty by offering fun experiences, in addition tomerchandise.

Events as an in-person customer patronage accelerator for Malibu retail

The Trancas lawn was crawling with people on the early evening of July 5, the heatwave notwithstanding.  Boutiques stayed open, and restaurant waiters scurried around to keep up with customer orders. On a summer weekend night, when many locals recoil in horror and stay home due to the tourists inundating our town and the attendant snarling traffic, the weekly Friday night concert had attracted a very large crowd again, including many locals. Fallen Angels was playing, so many Malibuites braved traffic and schlepped to Trancas.

The Trancas retail and restaurant community has figured out that events draw customers, both local and from out of town.  The Friday evening concerts really draw crowds — crowds that browse through the retail stores often purchasing merchandise, and crowds that patronize the restaurants.  When there are no concerts or other events, very often, there is a noticeable paucity of customers.

So, what gives? Is there economic or marketing data to substantiate the hypothesis that frequent hosting of varied events attracts in-person customers in our hurried world usually primarily immersed in online retail?

Yes, with a qualifier: Research establishes that the trick is to provide experiential shopping opportunities for patrons — experiences that the customers will be delighted to post on social media. According to data from Pew Research, 74 percent of Americans under 30 years old and 53 percent of Americans aged 30 to 49 use five or more social media platforms — and they are all looking for content to post. Creating social media moments and campaigns has a dual benefit: they create a buzz and drive foot traffic to the property and shared photos promote the property and support digital marketing efforts.

It’s called omnichannel marketing, a buzzword that refers to a streamlined retailing strategy. 

Omnichannel anticipates that customers may start in one channel — such as social media, a retailers’ app, browsing a website online — and enables customers to seamlessly segue across all channels, including participating in a brick-and-mortar, enjoying a fun event. Structuring one’s marketing to provide a seamless, integrated, and consistent shopping experience is the key to retail success.

Against that backdrop — both Kith and the Trancas Country Market consortium of businesses are both firing on all cylinders.

Assistant planning director still on leave from city after his claims of harrassment, death threats made public

By Barbara Burke

Special to The Malibu Times

The City of Malibu provided The Malibu Times with a rather perfunctory statement on July 3 responding to the Times’request for a comment concerning the allegations set forth by Assistant Planning Director Adrian Fernandez in his June 24 letter to the City Council in which he stated that he wanted to “finally raise the curtain on abuses and collusion that [he] has both witnessed and personally endured within the City of Malibu.”

Continuing, Fernandez stated that “the last few weeks have been a private hell for me and my family. I have experienced death threats, personal public attacks, and private abuse from many sides. I have now come to the alarming realization that officials at the highest level of city government, including the Mayor, have coordinated or at a minimumencouraged these attacks in concert with members of the Malibu Township Council.”

The city’s July 3 statement, titled “City Statement for request from Barbara Burke for Malibu Times re: Harassment Allegations,” stated: “Due to the confidentiality of personnel matters, the City of Malibu cannot discuss specific allegations or ongoing investigations. The City takes any allegations of abuse or harassment very seriously. 

“The City will thoroughly investigate any claims of inappropriate conduct or a hostile work environment. The investigation process ensures that all concerns are addressed promptly and fairly.

“The City values a positive and collaborative work environment and strives to always uphold this standard. We encourage any employees who feel they have experienced or witnessed a hostile work environment to report their concerns to Human Resources or through other appropriate channels.”

On June 29, the Malibu Township Council responded to Fernandez’s letter alleging the MTC contributed to the abuse he alleges he endured with regard to his being criticized within his workplace at the city as well as at a City Council meeting on May 13 concerning the MTC’s appeal of the Planning Commission’s approval of an application for a permit to build the Malibu Inn Hotel.

Addressed to the members of the City Council, the Township Council’s letter, signed by Jo Drummond, the organization’s president, on behalf of the board of directors, stated, “Malibu Township Council denies all claims in the June 24, 2024, letter by a city staff member in connection with our appeal to the Malibu Inn Hotel. Malibu Township Council appealed the Planning Commission’s majority approval of this project to the City Council since, as designed, it did not adhere to Malibu’s General Plan, Local Coastal Program and Municipal Code. Our presentation was professional and respectful.”

Noting that MTC’s appeal was granted on its merits by the City Council with only one dissenting vote, the letter stated, “We will continue to speak for and against development in the ongoing public interest based on each proposal’s merits and Malibu’s codes that were put in place to protect Malibu’s unique, fragile, natural environment and our small seaside community character.”

In closing, the letter stated, “Malibu Township Council has been a watchdog for Malibu advocating for responsible development to protect this most special place since 1947. We have over the past 77 years received the respect of the citizens of Malibu and ask for the City government’s respect. Over the decades, MTC has championed the preservation of Malibu and prevented a nuclear power plant, oil drilling, a freeway, a marina, a citywide sewer system, large 4 or more axle trucks on PCH and other attempts to exploit Malibu with inappropriate development.” 

Shortly before the City Council’s regular meeting on July 8, Councilmember Paul Grisanti stated to this reporter that the council’s executive session scheduled before the public meeting would not include any discussion of Fernandez’allegations as the matter was not on the agenda.

Further, Grisanti stated, to his understanding, Fernandez remained on leave from the city and that, “although he has most likely lawyered up, I am not aware of any complaint being filed against the city.”

Other than one attendee reading Fernandez’s letter in full on Zoom during public comment at the City Council meeting on July 8, there was no other discussion of the matter. 

On July 9, Kraig Hill, City of Malibu Planning Commissioner, vociferously objected to the phrasing in two different communications sent to the city seeking documentation concerning Fernandez’s allegations of harassment and the existence of a conspiracy to harm him. It is Hill’s understanding that Mark Boennighausen of Hopkins & Carley sent those communications on Fernandez’s behalf.

“I have nothing to do with the Malibu Township Council, and I never have,” Hill stated. “The communications lumping me in with any allegations against the MTC are inaccurate, and, moreover, I had absolutely nothing to do with the Malibu Inn Motel matter after the planning commission approved the application. To the extent there is any action by MTC, I am totally disengaged from that.  In my mind, the city planning commission is covered by the city’s mission statement and general plan and our jobs are to uphold the law.”

Although not expressing an opinion about any of Fernandez’s claims of wrongdoing by anyone at the city, Hill stated that if there is any conspiracy at all, he certainly was not involved in it.

To the extent Fernandez and his counsel are accusing Hill of any wrongdoing, Hill stated he would seek a retraction from them.   

Efforts by the The Malibu Times to reach Fernandez for comment have been unsuccessful as of press time.