By Bruce Silverstein, Guest Column
After the Palisades and Eaton fires destroyed thousands of homes in and around L.A. County, including more than 700 in Malibu, the governor of California, the L.A. County Board of Supervisors, the Mayor of Los Angeles, and the Malibu City Council and Malibu city staff have worked together and separately to untangle and streamline the complex web of multiple statutory regimes that govern the planning and building process applicable to fire rebuilds. In this column, I address the actions taken (and still ongoing) by the Malibu City Council and Malibu city staff to simplify the planning approval process. Although this column deals with relatively complicated legal issues, I have done my best to write the column in a manner that can be understood and appreciated by readers who are not trained in the law.
I begin by stating my view that the overarching objective of the Malibu City Council and Malibu city staff should be to craft a comprehensive legislative scheme that permits Malibu residents to rebuild the homes they lost to the Palisades Fire as efficiently, expeditiously, and economically as practicable. This column sets forth a general framework for helping to accomplish that objective.
By way of background, planning approval of any development in Malibu is potentially subject to both (i) the Coastal Act, which is implemented through Malibu’s Local Coastal Program (the “LCP”) and Local Implementation Plan (the “LIP”), and (ii) the Malibu Municipal Code (the “MMC”). The most complicated development requires both (i) a coastal development permit (a “CDP”) pursuant to the Coastal Act, and (ii) some form of discretionary approval pursuant to the MMC. Obtaining a CDP pursuant to the Coastal Act and/or discretionary approval pursuant to the MMC can be a laborious, expensive, and multi-year process, which can include one or more appeals and often results in a material alteration or rejection of the proposed development.
In an effort to streamline the rebuilding of homes lost to the Palisades Fire, the governor adopted multiple Executive Orders (“EOs”) that creates a blanket exemption from the permitting requirements of the Coastal Act for certain fire rebuilds. This is in addition to certain provisions of the Coastal Act (through the LCP and LIP) that establish specific exemptions from the requirements of obtaining a CDP for certain fire rebuilds. Additionally, the Malibu City Council has adopted various amendments to the MMC that permit certain fire rebuilds to obtain planning approval through a “plan check,” which is an expedited, efficient, and relatively economical method of approval. Moreover, pursuant to a recent action by the Malibu City Council, fees for a plan check are waived where the applicant is the owner / occupier of the home that was destroyed or substantially damaged by wildfire. Fire rebuilds that qualify for a blanket exemption from the permitting requirements of the Coastal Act pursuant to the EOs (or, at least, a specific exemption from the CDP requirements pursuant to the terms of the Coastal Act) and/or streamlined and fee-free plan check approval pursuant to the MMC are commonly referred to as “like-for-like, plus 10%” — a term that sounds simple on the surface, but which involves multiple technical specifications that are not the same pursuant to the EOs, the Coastal Act, and the MMC.
Where both the MMC and the Coastal Act apply to a proposed fire rebuild, the proposal cannot obtain planning approval unless it satisfies both statutory regimes. It is like an intersection with two separate traffic signals and a rule that it is impermissible to enter the intersection unless both signals are green. A single green light (i.e., satisfying only one of the Coastal Act or the MMC) is inadequate to proceed. Where the EOs eliminate the permitting requirements of the Coastal Act, the traffic signal for the Coastal Act is perpetually green, and where the Coastal Act (through the LCP and LIP) provides a specific exemption from the requirement of a CDP, the traffic signal for the Coastal Act will be green more quickly and more often than the signal is red. Additionally, where the MMC permits planning approval pursuant to a plan check, the traffic signal for the MMC also will be green more quickly and more often than the signal is red. And, where the applicant qualifies for a fee waiver, the planning permit is free of charge from the City of Malibu. Accordingly, where a proposed rebuild qualifies for a blanket exemption from the Coastal Act’s permitting requirements and/or a specific exemption from the CDP requirements of the Coastal Act, a plan check planning approval pursuant to the MMC, and fee waiver, obtaining planning approval for the proposal is more efficient, expedited and economical than it would otherwise be without applicable fire rebuild accommodations.
Many residents (and some architects and other planning professionals) mistakenly believe that EOs’ qualifications for a blanket exemption from the permitting requirements of the Coastal Act and the MMC’s qualifications for planning approval through a plan check review are co-extensive. That is not so. There are ways in which the EOs’ qualifications for a blanket exemption from the permitting requirements of the Coastal Act are narrower than the MMC’s qualifications for planning approval pursuant to a plan check; and there are ways in which the MMC’s qualifications for planning approval pursuant to a plan check are narrower than the EOs’ qualifications for a blanket exemption from the permitting requirements of the Coastal Act. Further complicating the analysis is that the specific statutory exemptions from a CDP contained in the LCP and LIP (where the EOs do not completely eliminate the Coastal Act permitting requirements) are not entirely coextensive with the MMC’s qualifications for planning approval pursuant to a plan check. It is only by harmonizing the EOs, MMC, LCP and LIP that the City Council can provide the broadest approach to developing a proposed fire rebuild that can obtain planning approval free of the permitting requirements of the Coastal Act and pursuant to an MMC plan check.
Fortunately, the EOs expressly vest the City of Malibu (through the Malibu City Council) with broad authority to interpret the EOs as they apply in Malibu. Specifically, one of the EOs states, in pertinent part, that “[l]ocal agencies that issue development and building permits for development projects shall be the sole agencies that may determine whether a property or facility is eligible for the suspension[] [of the permitting requirements of the Coastal Act]” and that “[s]uch determination shall not be appealable to the California Coastal Commission or to any other state executive agency or department.” The Malibu City Council also maintains broad authority to interpret the MMC and also to amend the MMC if the Malibu City Council deems it beneficial to do so. The Malibu City Council also maintains authority to interpret the LCP and LIP, but that authority is subordinate to the authority of the Coastal Commission to adopt or impose a different (typically narrower) interpretation.
In order to provide the broadest approach to developing a proposed fire rebuild that can obtain planning approval free of the permitting requirements of the Coastal Act and pursuant to an MMC plan check, the Malibu City Council needs to use its broad interpretive authority to develop both (i) an expansive and liberal interpretation of the EOs that exempt certain fire rebuilds from the onerous permitting requirements of the Coastal Act, and (ii) an equally expansive and liberal interpretation of the MMC that qualifies the same fire rebuilds for planning approval pursuant to a plan check review. And, where the existing language of the MMC does not permit a reasonable interpretation that brings the MMC in line with the EOs, the Malibu City Council needs to further amend the MMC to correlate with the expansive and liberal interpretation of the EOs. It also would be helpful for the Malibu City Council to adopt reasonably liberal interpretations of LCP and LIP with respect to the provisions thereof that deal with exemptions from CDPs available for fire rebuilds. Moreover, although it may seem odd to a lay person, there is no legal requirement that the same words in the EOs, MMC, LCP, and LIP must be interpreted the same way. As such, when adopting interpretive guidance, it is imperative that the Malibu City Council be clear and precise about which Order or Ordinance is being interpreted. At the same time, the Malibu City Council needs to ensure that the interpretive guidance and any amendments to the MMC are accomplished in a manner that does not inadvertently open the door to greater development of Malibu outside the context of fire rebuilds. Although the Malibu City Council and city staff have worked hard to improve the planning approval process for fire rebuilds, the work done so far does not always address the critical distinctions between and among the EOs, MMC, LCP, and LIP with sufficient precision, and that there is a critical need to do so moving forward.
Outside the planning process, there are other measures that can and should be pursued to make the fire rebuild process more efficient, expeditious and economical. As suggested by a motion brought by County Supervisor Lindsey Horvath, those measures include efforts to create economies of scale for goods and services that will be needed by the many residents who are working to rebuild their lost homes. Legislative efforts to secure grants and/or low-interest loans also should be pursued. The Malibu City Council and city staff also must continue to explore the possibility of a sewer system that is carefully tailored to facilitate the rebuilding of homes lost along the beach in Eastern Malibu without opening the floodgates to unwanted larger development that previously was impracticable on account of the limitations of septic systems along the beach. And, if a sewer system proves to be impracticable, efforts must be made to find ways to reduce the formidable cost of seawalls and septic systems along the beach.
It also is critical to understand that the building code imposes requirements that must be satisfied separately and apart from any planning approval, and the City of Malibu has constrained discretion to ease the requirements of the building code, which is a creature of state law. The most recent of the EOs excuses certain requirements of the building code, but there still remain many building code requirements that may be difficult to satisfy, and which will impede the ability of some residents to rebuild efficiently, expeditiously, and economically — especially where the property is on the beach or an area that has exhibited historical geological instability. That, too, needs to be examined by the Malibu City Council and city staff, and every reasonable and legally permissible effort must be pursued to liberalize the process of securing building code approval. Additionally, efforts should be pursued to secure the governor’s further relaxation of the building code for requirements that do not provide a real and necessary foundation for safety. Among other things, efforts must be pursued to permit residents to use pre-existing foundations and septic systems that were not destroyed by the Palisades Fire. And, if practicable, the process for obtaining proof of geological stability in previously developed areas of historic instability needs to be streamlined.
Further complicating the rebuilding process is that there also are other legislative and administrative regimes that apply in certain instances — such as Fire Department requirements, and Water Quality rules, and other regulations imposed by outside agencies. As such, the City of Malibu also must work with these outside agencies to secure their cooperation in liberalizing the rebuild process — as the city recently accomplished with the fire department agreeing that water flow deficiencies may be satisfied with water tanks.
In the final analysis, despite the best intentions and hard work of everyone involved to make the fire rebuilding process as efficient, expeditious, and economical as practicable, there remains a long road ahead, and the process will be too much for many residents who lost their homes. We must do the best we can to shorten that road and make it more passable and less expensive wherever practicable. Otherwise, more and more of our friends, neighbors, and community members will throw in the towel, sell to opportunistic speculators and developers, and leave Malibu.