Peafowl Proponents Present Petition to City Council

• Members Actually Have Time to Address Other Key Municipal Matters As Well

BY BILL KOENEKER

A contingent of bird lovers came to Malibu City Council chambers this week to reinforce their stance on the municipality’s wildlife policy of leaving nature’s creatures alone.

It was the first time the council had an opportunity to speak since the matter escalated to the Los Angeles County District Attorney’s office and the department of animal care and control’s after an unsuccessful attempt to have the wild peafowl of Point Dume removed.

Some speakers questioned council members about the recurring incidents in which new residents complain and some sort of action is attempted.

“I thought this was resolved,” said Charlene Kabrin, who had been the target of bird removal attempts in 1999 and 2005. The peafowl are considered wild and the most recent incident involved the DA’s office, which had recommended removal of the feral birds after a nearby couple complained about the noise of their mating.

“I am absolutely bewildered by the [speakers’] comments,” said Councilmember Sharon Barovsky. “We are absolutely in support of leaving the peacocks alone.”

Point Dume resident Mari Stanley said she thought it was procedural and that the Enricos, who filed the complaint and have since been vilified by a segment of the community, may have been given inappropriate information.

Stanley said she was referring to the city’s animal noise complaint form, in which the complainant is directed to address issues directly to the city’s supervisor in the planning department, Gail Sumpter.

The form states most complaints are resolved by the intervention of the Sheriff or Animal Control and if not the matter is referred to the DA’s office.

The form recommends that a log be kept and additional evidence be gathered, including audio or videotapes.

Council members turned to City Attorney Christi Hogin for an explanation. Hogin, who acknowledged that the animal control department works for the city under contract, said it was in the best interest of the city to utilize municipal staffers as “gatekeepers” to handle such incidents.

Hogin also acknowledged that while various incidents have been handled differently “every other year when the mating season arrives,” there has been no change in the city’s policies for considering the birds wild.

“The [municipal] staff is most informed. We consider them the gatekeepers. It is to the city’s benefit,” she said.

Councilmember Ken Kearsley had a different take on the peafowl, reminding the audience that the birds may be feral, but are not native to Malibu or Southern Caifornia.

Kearsley said the feral birds compete for terrain and food sources with the native birds, with the native population generally losing out.

“It is a double-edged sword. We lose other animals, including songbirds,” added Kearsley, who pointed to the flock of crows in his neighborhood as culprits in ridding the area of native songbirds. He said the peafowl could also replace raptors.

Councilmember Pamela Conley Ulich, who is a Point Dume resident, said the city has tried to protect the birds. “The peacock problem is not one to lose sleep over, but I know you will,” she added.

MALIBU TOW YARD

In other action, some of the same individuals and others pleaded with the council to do something about the removal of the Malibu towing yard from its current location on Malibu Road on acreage planned for a residential subdivision.

Both employees and others insisted the city should do something to prevent the tow yard from having to leave the Malibu area.

The city is currently considering an application that would remove the tow yard and demolish all of the buildings on the acreage to make way for the small gated subdivision planned by the new property owner.

Council members said they sympathized with the dilemma of the tow yard operators and the inconvenience it might represent for others.

However, Kearsley said it was pure economics and was a problem encountered by other coastal cities where the price of land called for “higher uses of the land.” He said the problem is encountered by many other coastal cities in Southern California.

“I agree we are going to lose a vital service. It is going to take a lot more time,” he added.

Mayor Jeff Jennings talked about how the problem also evolved from the early days of cityhood, when the General Plan process was underway and any industrial zoning was shunned. “Nobody would want light industrial zoning near them,” he said.

Kearsley agreed about the NIMBY factor saying even if the city could accommodate zoning for industrial use somewhere else along the Pacific Coast Highway corridor nobody would want the tow yard next to their neighborhood.

Councilmember Andy Stern asked if service station sites whether opened or closed would qualify for towing operations and was told yes

• The Publisher’s Notebook •

The Malibu Shark Tank: Science and Captivity

BY ANNE SOBLE

The role of ethics in science is a subject that is guaranteed to produce discussion, if not debate, and the potential for fisticuffs. If it is complicated when the subject is a human scientific issue, it becomes all the more muddled when dealing with species that invoke fears, conscious and subconscious, the way a great white shark does. On Monday, a crew from the Monterey Bay Aquarium was in the waters off Point Dume, setting up the underwater holding pen that will serve as temporary quarters for any juvenile great white sharks that are caught for study and placement on public display at the aquarium. MBA has already “captured” several great whites—although more accurately speaking, it’s usually commercial fishing vessel crews that do the capturing, often by accident. Two that survived this ordeal were put on highly publicized display, the first for six months until it bloodied its snout on the glass tank trying to escape, and began attacking its tankmates. The second shark, released this January, was in captivity for four and a half months. Both displays boosted aquarium attendance and gift shop sales.

The aquarium maintains that the best way for people to appreciate the wonder of these magnificently-designed creatures is to see them face to face. But in a digital age, attuned to electronic communication, a strong case can be made that creative imagery can give these visitors a graphic and meaningful look at sharks without using live animals in a simulated environment. This is why we are starting to remove animals from zoo settings because what we see is not an elephant but a medicated, disconnected life form that is suffering physically and psychologically. The misconception that wild animals can be “Trumanized” without major impairment won’t fly. Many who are concerned about the captivity component can see value in temporary capture and tagging with sophisticated equipment that can shed light on travel and other patterns. MBA’s data in this area has led to greater insight into the great whites. This further corroborates the contention that animal behavior is best studied when human interference is least. The actions of an animal in the wild are not comparable to that of an animal that becomes so stressed that it engages in self-mutilation. No number of additional visitors and no amount of dollars can validate opportunistic animal showmanship in the face of questionable behavioral science and inter-species cruelty.

Are There Two Malibus When It Comes to Pollution?

• Possibility of Litigation May Focus Spotlight on Public Policy Dichotomy •

BY HANS LAETZ

This is a story of two Malibus.

The first Malibu held a fundraising party at Bluffs Park on Sunday. Raffles and other activities gathered funds to help complete a huge water treatment scheme at Legacy Park; a floodwater collection, storage, treatment and dispersal project that will top $35 million in costs. This Malibu has enacted the toughest septic tank rules in Southern California, and is working on several expensive, major water treatment projects to clean up pollution hot spots along the beaches.

The other Malibu doesn’t care. It lets precious water shipped here at great expense from a faraway river delta flow across its gardens and out into gutters. It lets moss and green gunk flourish in the dozens of PVC pipes that flow continuously out into ocean sand. The other Malibu looks the other way as beachfront septic tanks employ seepage pits in which the human waste rises and falls each day as it mixes with the ocean’s tides. And it consistently violates a state law that forbids dumping any water, even a downspout of rainwater, into a section of the Pacific around Point Dume and up to Point Mugu—a stretch considered a publicly-owned “crown jewel, an ocean Yosemite” in need of special protection.

Critics say the inescapable conclusion is that some Malibuites exist in both worlds simultaneously.


Two weeks ago, Santa Monica Baykeeper and the Natural Resource Defense Council gave official notice that they intend to file a federal Clean Waters Act suit against the City of Malibu and the County of Los Angeles.

Unless the defendants can convince Baykeeper and NRDC differently, a federal lawsuit can be filed in two months that could place a federal judge in charge of rules for building and remodeling projects in Malibu and beyond. It could also force existing property owners to obey some new strict set of septic tank and runoff-water regulations.

As reported earlier, the legal notice was a surprise to city council members, and some of them smelled politics. They point to the $35 million project at what used to be called the Chili Cook-off site, and to the cooperative and progressive tone the city had adopted for the past five years.

At meetings of the North Santa Monica Bay Watershed Committee, the city has routinely been praised by stakeholders for moving first and fast on septic tanks. For example, Heal the Bay officials praised Malibu for cooperating in a project to use DNA to determine whether human waste was responsible for coliform bacteria levels in canyons that were flowing 12 months a year into fetid ponds at the beaches.

“The city has been doing everything that it can, and it has been doing this with the cooperation and support of the Baykeeper organization,” said Mayor Jeff Jennings when he learned of the suit.

“I think that Malibu has been one of the most-proactive cities in the area,” added City Manager Jim Thoreson.

The city has tightened new construction or remodeling building permits to the point where the routine background grumbling from local builders is again intensifying. Regulations that new construction projects include a way to keep all rainwater runoff on the property are particularly vexing to some. Longtime Malibu resident and architect Ed Niles told a civic group last week that some of the rules are ridiculous.

“It’s been raining in Malibu forever, and that water has been running into the ocean forever. Now you have to come up with a way to keep it on your lot,” he said.

In the past few years, one vacant lot near Trancas has a permanent frog pond established, full of loud nocturnal frogs feasting on the bugs drawn to the new watercourse. The pond is fed by water running off from a subdivision’s community tennis courts and lush landscaping. Sometimes water flows into the pond at about two gallons a minute, day and night.

The pond sits a quarter-mile uphill from two fetid ponds by Zuma Beach, and the area’s groundwater levels are so high that the Zuma ponds are always full of foul water even in the middle of a historic drought.

The ponds are fed by a spring and drain into the sand at Zuma Beach, where millions of visitor days are spent by beachgoers.

A city enforcement officer says they have too much on their hands to track down the tennis court’s owners, and have no city ordinances to prohibit anyone from overwatering to the point of creating a frog pond on someone else’s vacant land.

Unlike some other cities, Malibu does not specifically prohibit a homeowner from sending runoff into a street or beach unless there is sewage in it,

“Why don’t you write a nice letter to your neighbors and ask them to stop?” the city officer tells an inquiring resident.

Under the columns supporting an elevated oceanfront house on Escondido Beach last week, Baykeeper volunteer Mark Abramson pointed at one of dozens of black polyvinyl pipes that stick out of the rocks, just above that morning’s high-tide line. Like many others, this one had a large amount of moss, algae and green gunk growing in what by all appearances is a permanent flow of urban slobber.

“You see some real interesting flows out of those pipes,” he said. Sometimes the unmistakable scent of Downey brand fabric softener or Tide detergent is present, he said, but more often it’s just gunky water.

When it is tested, the urban runoff contains a brew of viruses, germs, bacteria and nutrients to help the vermin grow as the water flows into the sand or the surf, depending on the tide.

Abramson points several hundred feet up the beach. “That’s the place where they measured the ocean water that flunked the last set of tests, and everyone said they were surprised that Escondido flunked. Well, we’re not surprised, look what’s flowing in.”

Abramson and Baykeeper scientist Carlos Carreon walked from Escondido Creek east to Latigo Bay, and stopped at about every third or fifth house to observe outflow from plastic pipes running into the ocean or sand, continuously dumping green, filthy water. The Santa Monica Mountains region, they also emphasized, is in the midst of a major drought.

“We don’t know where this water is coming from, and we can’t go up in these houses to find out,” Abramson said. “But the city can, and they haven’t.

“We’ve gotten a lot of lip service, but the city has never walked down this beach and gone to the homeowners to say ‘you have got to stop this.’”

“If that is happening in the City of Malibu, I’d sure like to know where,” said Vic Peterson, the city’s chief building and planning official. Peterson and Craig George, the city’s wastewater expert, are part of the team recognized across the county as aggressive leaders in fighting stormwater runoff.

Some city council members reacted similarly when told of the Baykeeper findings.

“If they know where this is, then they have an obligation to tell us exactly where so that we can take steps,” said Councilmember Sharon Barovsky. “And if there were suds flowing into a beach somewhere, my phone should be ringing.”

But Baykeeper’s Abramson said Malibu officials should know exactly where those pipes are. “In 2001 Baykeeper did a report documenting these drains, their very locations, their exact locations.

“That report was hand-delivered and widely distributed, and since then we have been talking and talking and talking but nothing has been done about these drains.”

Baykeeper is particularly irked that the city has done nothing about a 30-year-old state law that prohibits cities from allowing any sort of runoff whatsoever – even rainwater—from entering an Area of Special Biological Significance that starts at Latigo Creek and extends to Point Mugu.

The city has applied for an “exception” to allow rainwater to flow into the ASBS, which is at the state water board. But the efflux onto Escondido Beach would not be permitted even if the city wins an exception for stormwater, Baykeeper officials said.

The proposed lawsuit also claims that Malibu allows too much pollution into Malibu Creek, the area where the city hopes to remove 85 percent of the contamination coming from within Malibu with the Legacy Park project. A planned wastewater collection system in the Malibu Colony, Serra Retreat and Civic Center commercial area will clean up the rest, said council member Ken Kearsley.

But on the urban runoff issue, the two sides seem far apart. The environmentalists say they are open to talks with the city, but none are scheduled.

Some city council members express genuine surprise about the muck-in-the-pipe issue, and want to work it out. Another said the threat of a lawsuit means all avenues of compromise are off.

“When you talk litigation to me, that means all discussions are over,” said veteran city council member Andy Stern.

Under a house and in the wet sand, Abramson says at the very least the city must commit to inspect beachfront drainage systems and prohibit anything other than rainwater from coming out.

“Right now, unless a house has a septic system fail and it starts to stink, the city does not take action,” Abramson said. “This water has sprinkler flow, fertilizer and pesticides in it for sure, and God only knows what else, and it flows continually into a protected water.”

As of this week, no talks between representatives of the two sides are scheduled. Unless some compromise is reached, the lawsuit can be filed in August.

Abramson said he agrees that, on one side of the issue, Malibu has made enormous strides, with the massive Legacy Park expenditure and new runoff-cleansing plants going online this year at the Civic Center, Marie Canyon and Paradise Cove.

“But down here in the sand is where the rubber meets the road, and we haven’t seen any progress in 15 years,” the Corral Canyon resident said.

“That’s what this suit is all about.”

Point Dume’s Wild Peafowl Get a Reprieve of Sorts

• County Agencies Say They’ve Closed the Book on Legal Action Against Longtime Resident

BY BILL KOENEKER

A spokesperson for the Los Angeles County Department of Animal Care and Control indicated on Tuesday that the agency has closed the books on the rapidly escalating peafowl issue on Point Dume.

“We tried to take the case to the DA. But they told us it is unenforceable. We can’t do anything. It is out of our hands,” said Brenda Sanchez, a Long Beach-based spokesperson for the department. The complainants only recourse is take civil action, according to Sanchez.

A spokesperson for the DA’s office indicated that no charges will be filed and the matter is no longer in their hands. “It is up to [Los Angeles County] Animal Control. We do not have the authority to tell Animal Control what to do,” said DA spokesperson Jane Robison. “We are not going to press charges against [the person alleged by peafowl critics to be harboring the birds].”

The DA got involved after longtime Point resident Charlene Kabrin was accused by neighbors Danny and Vera Erico and Animal Control, which was brought in by the Ericos, of disturbing the peace.

The reaction in the community has been swift and vocal since last week’s report in the Malibu Surfside News that the Los Angeles County District Attorney’s office made a recommendation to have the feral peafowl removed because the couple had complained to authorities.

The Point Dume Community Association began pondering a position on the matter last week and a petition started circulating that has already been signed by hundreds of bird lovers.

The petition reads, “I support the protection of the wild peacocks that live in Point Dume, Malibu. I believe that their presence adds to the quality of life in Malibu. I support the peacocks living safely on the Point under the full protection of the law.”

The e-mail urges the signer to forward the wording to friends, family and neighbors.

A bird lover who has helped get signatures said she thought the matter was important not just for the peafowl, but all wildlife in Malibu because of the precedent setting nature of the issue. “It is about all wildlife in Malibu,” she said.

Malibu municipal officials remain adamant about the city’s policy. “We don’t want the birds harmed or removed,” said Mayor Jeff Jennings, who indicated the matter is in the hands of the city attorney.

Repeated calls to City Attorney Christi Hogin were not returned. Hogin had said at last week’s city council meeting that she did not believe the action taken by the DA’s office was a final determination.

The issue of the peafowl, which can sound off in the spring and early summer during mating season, is not a new one to Malibu or the Southland.

Some bird lovers are pointing to an appellate court case when a similar fight broke out about the feral peafowl in the City of Palos Verdes Estates.

Though the issues are not completely analogous, the matter had several hearings in court including a 2005 appellate decision, which concluded the peafowl “are feral rather than domesticated creatures.”

The issue in Palos Verdes was more complicated because it dealt with the city’s peacock management program in parklands and canyons in the city.

The dispute arose in response to complaints from a resident and a number of other peafowl opponents who then sued the city, alleging public and private nuisance, trespass, negligence and intentional infliction of emotional distress.

In addition, the city had made the trapping of the peafowl unlawful and the plaintiffs alleged the ordinance was invalid.

Other issues were involved, including the city allowing, “nonindigenous feral peafowl population to proliferate on and over city owned lots,” which allegedly violated the deed restrictions by which the city obtained title.

The lower court found the deed restrictions were applicable to the city and that the municipality did not have permission to keep peafowl on its property and also opined that the peafowl were not wild animals, but rather domesticated animals living in a feral state, therefore subject to control, possession and ownership.

However, the appellate court disagreed on both counts. It ruled the trial court erred as a matter of law in determining that the deed restrictions prevented the city from operating its nearly 20-year-old program.

The appellate court also disagreed with the lower court’s opinion about the status of the birds.

“The Palos Verdes Estates peafowl are not, in any ordinary and popular sense of the word, the ‘domesticated fowl’ that an [expert] said can be ‘kept,’ by ranging. The peafowl are indisputably feral creatures as [the opponent] expresses in her complaint. While the definitions of ‘feral’ are numerous, no definition suggests that the term ‘feral’ may be applied to a domesticated creature. To the contrary, ‘feral’ means ‘being characteristic of or suggesting an animal in the state of nature,’ or existing in a state of nature; not ‘domesticated or cultivated,’ or having escaped from domestication and become wild.

“The Palos Verdes Estates peafowl are not provided with food, are not protected from their enemies and are not selectively bred by the city or by anyone else. Nonetheless in the face of these commonly understood meanings of ‘feral’ and ‘domesticated,’ the trial court relied on [an expert’s] testimony that ‘once an animal has been domesticated, neither it or any of its offspring can ever be considered wild again.’ While this view may be correct, in a technical, scientific sense (although the city’s expert testified to the contrary) a court construing contractual restrictions is obliged to use words in their ordinary understood sense. In other words, the question is not how feral peafowl are classified by the scientific community; it is whether the city is keeping domesticated peafowl on its property in violation of deed restrictions. To the point, however, is that the peafowl inhabiting Palo Verdes Estates have not been domesticated or subjected to the city’s ‘control, possession and ownership’ in the usual, ordinary or generally accepted sense of those terms.”

The appellate court ruled in favor of the city and the peafowl have flourished.

CAPTION 1. Photo credit, MSN/Frank Lamonea

ALL EYES—One of the Point Dume peacocks, resplendent in summer plumage, enjoys a fence-top perch. In ancient Greece, the peacock was protected by the goddess Hera. The birds in Malibu have to rely on intervention by their human friends, of which there are many.

Malibu City Official Says Lawsuit Threat Is Politically Motivated

• Environmental Groups Spring Surprise Allegations about Federal Clean Water Act Violations

BY BILL KOENEKER

While many Los Angeles County and City of Malibu officials expressed surprise and disappointment at the recent notice of intent by two environmental organizations to file a federal lawsuit over alleged Clean Water Act violations, at least one Malibu city council member said she was not taken aback by the turn of events.

Councilmember Sharon Barovsky said last week after she discovered the identity of the members of the board of Santa Monica Baykeeper, which, along with the Natural Resources Defense Council, issued the notice of intent to the county and Malibu, that she was not surprised. “It becomes less mysterious to me,” she added.

Barovsky was refering to the Baykeeper’s board of directors, which includes longtime local activists Ozzie Silna, Tami Clark, Gil Siegel, Steve Dahlberg, Luanne Wells and Linda Thompson-Foster.

As one local political observer put it, the list is a virtual “who’s who” of anti-city council activists at the helm of the board’s activities. Many were involved in defeating the council-endorsed Measure M at the polls.

Silna has denied the charge, but no one has been able to explain why the group that has been working so closely with the city and the county chose to keep the potential litigation under wraps until formal notice was issued.

Just last month, the city and the Baykeeper issued a press release in which Baykeeper officials praised the city for its efforts at improving water quality and having acquired the grant funding and the approval of plans for a storm water treatment plant to clean up Ramirez Creek at Paradise Cove.

Both the county and city are currently working on plans for another treatment facility at Marie Canyon.

The city has also been involved in a $35 million project at the Civic Center for stormwater and wastewater treatment and recently built and started operating a stormwater treatment facility processing dry weather flows at the Civic Center.

At last week’s city council meeting, City Attorney Christi Hogin addressed the city’s ongoing efforts at water cleanup.

She said, “It is a troubling and unfortunate turn of events. As you know, we are spending enormous amounts of city resources, staff and financial, to clean up the water.”

Hogin said she would look closely at the notice. “Most of the samples were taken before [Civic Center stormwater] facility went on line or the samples are from county-controlled drains,” the city attorney noted.

Hogin pointed out one aspect of the lawsuit addressing Malibu involves the accusation that the Clean Water Act was allegedly violated in specially designated marine areas just off the coast known as Areas of Special Biological Significance. Those are state designated areas.

The city has 60 days to respond to the notice of intent and spokespersons for the environmental groups, in a number of media accounts, have said they want to sit down with the city and county and get an accounting, but remain vague about what exactly they are looking for in terms of how they believe municipal improvements should be made.

Privately, some city hall observers have remarked that Malibu, in particular, has become a favorite target of environmental groups because of the media coverage that this can generate. That coverage can give groups a higher public profile that can translate into more grant dollars.

“Nobody is going to cover environmental problems in, say, Carson,” quipped one wag.

Schools Master Plan Unveiled

• Different Forces Shape Goals for Malibu and Santa Monica

BY BILL KOENEKER

At a special meeting last week, the board of the Santa Monica-Malibu Unified School District and the public got a look at an ambitious 20-year draft master facilities plan valued at $1.2 billion in improvements for the district’s campuses.

The school district has a head start, given that Measure BB approved by the voters last year added $268 million to the district’s coffers for capital improvements.

Consultants from the architectural firm Concordia, Sidewalk Studio and Harley Ellis Devereaux presented an overview of the plans on a site-by-site basis.

The initial plans, two years in the making, are an outgrowth of site visits and various workshops and meetings at which community members had an opportunity to give feedback to the consultants and school officials, according to district staff.

Consultants stressed that the draft is a work in progress and that the elements shown to the board and unveiled last week reflect public input, but the meeting last Wednesday was the first time the public could see the plan in totality.

Also emphasized is that the schematics are concepts and not designs. It is the first time the public has had a chance to review the draft master plan.

The next step, according to consultants, is what is called CEQA review, or subjecting the plan to environmental review under the California Environmental Quality Act.

The draft paints a different picture for Malibu and Santa Monica schools with two different driving forces shaping the plan, according to one of the consultants.

In Santa Monica, a boom is projected in the student population requiring increasing facility space to accommodate such growth.

No such increase is forecast for Malibu and, according to estimates, there will be a slight decline in student enrollment in the next two decades.

Consequently, there is enough space in Malibu and program needs will drive the facility plan, rather that population pressures.

Consultants said the numbers show Malibu with currently 324 pupils per site with a projected slide to about 303 per site by 2016.

That is in stark contrast to the more urban areas of Santa Monica where growth in the student population is expected to reach 654 students per site within 20 years.

Phase one plans for Malibu High School and middle school call for the number one priority being a “community serving library.” New two-story classrooms would replace the relocatable classrooms and improved traffic circulation and drop off areas are planned. Other infrastructure improvements are proposed.

The draft phase one plans for Juan Cabrillo, which consultants reiterated is not foreseeing enrollment growth, would be a “mandate for pre-school facilities” and general infrastructure improvements, including bringing classrooms up to district standards and creating dedicated drop-off and pick-up areas.

Likewise, Webster School is not potentially experiencing student growth, but there is a need to replace classrooms with new ones and generally improving the infrastructure, including paving an existing parking lot currently in use. Improvements would also call for replacement of the relocatable classrooms.

The consultants said Point Dume Marine Science School “works very well in many ways,” and that the phase one plans for that site include replacing the heating system and dedicating a new pre-school building.

Plans for Santa Monica High School, which Malibu students can still choose to attend, call for spending $100 million over the next 20 years for new buildings and remodeling, constructing a underground parking structure and other improvements, including trying to shape the facility into a pedestrian friendly campus, according to the consultants.

Planners also talked about the ways that district officials would be tasked with implementing the plan, coming up with more funding (possible bind measures), phasing in new construction, optimizing the use of facilities through joint use agreements and beginning the construction on phase one improvements using Measure BB money.

To view the entire draft master facilities plan, go to www.ourschoolplan.com

Publisher’s Notebook:

Crying Fowl: Peacocks Prevail in Malibu

BY ANNE SOBLE

I thought I might have struck a nerve when the phone rang and one of our favorite sources in the Los Angeles County District Attorney’s office said that it wasn’t fair when I said that the DA’s office deserves credit for saving Malibu from peacocks when compared to real noise complaints, such as motorcycles, sports cars and leaf blowers and some of the other things I’d like to see crated and taken away. The DA legal eagles have now determined that they may not have jurisdiction after all, and given the number of phone calls and emails they have received since the Malibu Surfside News story last week, might not want jurisdiction, even if it exists. Ditto with the county Department of Animal Care and Control people who may never have checked with the Carson Shelter in Gardena that’s responsible for the feral peafowl that freely roam Palos Verdes Estates, courtesy of the state appellate court.

This foray into bureaucratic blundering ranks so far below the successful Cabrillo Port LNG defeat in importance that it falls off the radar screen, but as small-town publishers know all too well, issues such as the wild peafowl can elicit more public response than major public policy matters. I finally had to say, “No more pro-peacock letters to the editor” and stop taking calls about the petition drive to save the feral birds. Still, there’s no denying the pleasure in the realization that some of the original spirit that drew so many to Malibu before our properties became worth millions of dollars and residents started to complain about the presence of coyotes, mountains lions, rattlesnakes and peacocks, hangs on. There are forces that will rally when pushed, and though they may remain quiet most of time and let the media define a Malibu populated by narcissistic, rehabbing dilettantes, when a headline resonates with them, they will come out fighting.

Heck, I don’t even especially like peacocks. My solo experience with them was to set up several in a fancy avian compound that they decided to fly out of and become a gourmet meal for my malamutes. Somehow, saying “bad dogs” seemed pointless because the birds were obviously tasty. But I revel in those who support all things wild and free and hope these folks are there when the next assault on wildlife takes place. They’re my Malibu.

Carbon Beach Access Way Saga Takes Another Turn

• Newest Gate to Beach May Lack Sponsorship

BY HANS LAETZ

The great Carbon Beach access way controversy just gets weirder and weirder. The gate to the beach at 21950 Pacific Coast Highway is being reported as off limits to the public. But it’s not.

Regular readers might recall news two weeks ago of a new route to exclusive Billionaire’s Beach, a stretch of highly coveted, publicly owned sand near Carbon Canyon that is hard to get to due to a long row of mansions blocking access.

The owner of two houses on the beach, a New York financier named Peter Kleidman, had opened up a portion of one of his properties as an access way for public use.

Some of the location’s neighbors watched in amusement, and said Kleidman’s ostensible act of altruism may have been retaliation against a couple who live next door to the house on PCH. Kleidman and the immediate neighbors reportedly were engaged in a real estate dispute, and some in the area conjecture that Kleidman had opened up the public access way to get back at them.

The City of Malibu, unaware of the new public access way to the beach, said it would require Kleidman to get a conditional use permit for the change in land use. That means going through the planning process, including a hearing before the municipal planning commission. No application paperwork has been filed. If it is, the pathway’s status during this process is unclear.

Since then, it has been confirmed that one of the sister agencies of the Santa Monica Mountains Conservancy, also led by conservancy executive director Joe Edmiston, had worked out a deal with Kleidman to make the access way public, open and close the gate each day of the weekend, and pick up trash at the location.

The conservancy put up one of the traditional brown “barefoot” beach access signs across the street on PCH and slowly let the word out that the public was welcome at 21950.

Once news of the neighborhood feud got out, however, that deal collapsed.

“We found out it was a dispute amongst neighbors, and we don’t want to be in the middle of that,” said Conservancy spokesperson Dash Stolarz.

But the sign remains up, the gate remains unlocked, and persons inside the house said, “Come on in” last Saturday and Sunday.

Bring your own towel.

Book on BHP Billiton’s Cabrillo Port Is Now Officially Closed

• Total Cost of Effort Still Not Known •

BY HANS LAETZ

In an anticlimactic footnote to the biggest environmental fight on the Malibu coast in recent years, the U.S. Maritime Administrator last week formally declared Cabrillo Port dead.

Sean Connaughton signed papers in Washington that were released Monday, formally denying BHP Billiton’s request to anchor a floating liquefied natural gas terminal 13.8 miles off the Malibu coast.

The federal finding formally ends the process that started with the company’s formal application on Jan. 17, 2004, and churned through tens of millions of dollars in engineering costs, environmental studies and evaluation costs.

A stack of environmental documents from the three-year process is over two feet high. BHP Billiton will not disclose how much the effort actually cost.

Most of the costs were shouldered by BHP, the world’s largest mining company with a market value of $118 billion and $10 billion in profits last year. The city of Malibu paid $50,000 to help the California Coastal Protection Network fight the project.

The Australian company has refused to give up the ghost, and has not closed its Oxnard office. A spokesperson in Houston said the fate of its 4-6 local employees has not been determined.

City of Malibu Is Hit with Surprise Litigation on Water Pollution

• Two Groups Allege Widespread Wastewater Violations and Foot Dragging on Local Cleanup

BY HANS LAETZ

A pair of non-profit agencies are getting ready to sue the City of Malibu for allowing water pollution to flow into the ocean, a potentially costly lawsuit that could ultimately put a federal judge in charge of local septic tanks and storm drainage pipes.

“Our bottom line is clean water, not plans, not talk. When will we see it?” said Natural Resources Defense Council attorney David Beckman.

The other group, Santa Monica Baykeeper, charges that between 500-700 illegal discharge pipes dot the hills and beaches of Malibu, each and every one of them regularly spewing washing machine discharge, dishwasher waste and other illegal contents into Santa Monica Bay.

But that sweeping charge is not substantiated in the formal notice that the group Baykeeper served last week against Malibu and the County of Los Angeles. Rather, Baykeeper and NRDC claim Malibu has allowed pollution to flow into the ocean in three storm drains at Escondido Beach and at Malibu Lagoon.

The groups also complain that the city has not yet won permission to let rainwater flow into a protected section of Santa Monica Bay. But a spokesperson for the State Water Quality Control Board said Malibu can’t be given a permit because the state has yet to write the policies on granting such permits, and won’t be finished until at least early next year.

Baykeeper and NRDC also blame Malibu for high levels of cyanide, sulfates and fecal bacteria in Malibu Creek, which drains more than 200 square miles of Ventura and Los Angeles counties and about two square miles in the City of Malibu. The local municipality is investing over $35 million in the “Legacy Park” water filtration project, designed to remove pollutants from parking lots and streets along the Malibu Creek watershed at its southern terminus.

Well and good, said Santa Monica Baykeeper director Tracy Egoscue. But only the threat of the lawsuit will get Malibu to put its money where its mouth is, and follow through on promises to raise taxes to begin aggressive policing of alleged wastewater abuses, she said.

“There are 500 to 700 pipes in the City of Malibu that are carrying water from washing machines, dishwashers and other illegal sources into the ocean,” Egoscue said. “These pipes are all carrying runoff other than rainwater, and, even when it is not raining, they are flowing.”

Baykeeper joined the Natural Resource Defense Council Wednesday in serving a notice that Malibu illegally allows tainted street runoff into the ocean, that the city is responsible for the Malibu Creek pollution levels, and that the city has not accurately reported to the state its alleged inability to meet those laws.

City officials reacted with incredulity at the claim of at least 500 illegal pollution sources, because the city has been actively working with state agencies and several environmental groups to solve regional pollution issues like Malibu Creek.

“I sit on committees with Tracy and I am surprised she would claim that about the city,” said Mayor Jeff Jennings. “If that were happening, and Malibu residents were walking down a beach and saw something flowing out of a pipe, our phones would be ringing off the hook.”

“They may be taking steps but it is too little,” Egoscue said. “These pipes are there, polluting, and the city was put on notice in 2005 and 2006 that this is not acceptable nor legal.”

The complaint notes that the city and county are prohibited from allowing any wastewater at all—including storm runoff from streets—to flow into the ocean from Latigo Canyon west past the Ventura County line, which was designated an “Area of Special Biological Significance” by the state legislature decades ago.

Although Egoscue claims the State Water Quality Control Board told Malibu it was illegally allowing stormwater to drain into the bay, those letters actually told the city and county they needed to apply for permission to allow that runoff to flow into the ocean.

A spokesperson for the SWQCB in Sacramento said the stormwater runoff rules have yet to be written, making it impossible for Malibu or any other city to meet regulations that haven’t been adopted. Nevertheless, Baykeeper says the permit hasn’t been granted, so Malibu is in violation.

Jennings noted that is a catch-22 situation. “The city has been doing everything it possibly can in order to comply,” Jennings said. “And we’ve been doing it with the support and the cooperation of the Baykeeper, it’s not like they’ve been telling us there’s other stuff we need to do.”

Indeed, Baykeeper and city representatives have sat together on a task force of government and private agencies that meets monthly to plan clean water initiatives. Baykeeper representatives have participated in many of those meetings attended by a reporter, and have never voiced impatience with the city’s efforts.

A spokesperson for the Los Angeles County Department of Public Works said, “Frankly, we are disappointed the groups that have been partnering with us in our efforts to prevent stormwater pollution all of a sudden say they will sue us.” Gary Boze said, “We’ve worked side-by-side with them to come up with solutions, so this really does come as a surprise.” NRDC’s Beckman said local governments have had more than 20 years to put tough anti-pollution rules into place and have not done so. “Our bottom line is simply clean water, and every time we’ve had this discussion in 15 years of trying to resolve this, we have no progress.”

Beckman said Malibu “has yet to install any of the low-cost, off-the-shelf filters that can be placed on drains to prevent material from entering the bay, or invest in creating wetlands that are incredibly-effective in cleansing water.”

The NRDC senior attorney expressed dismay that city and county officials feel blindsided. “Ask them when they will start reporting pollution figures, as they are required to do, and ask them when those figures will always show clean water,” he said.

NRDC spokesperson Daniel Hinerfeld added, “The point of this lawsuit is not to force Malibu to spend large amounts of additional money, or to enter into new treatment plans, but to state for the record what they have spent and what they hope to achieve” with existing water cleaning efforts.

“What we are hoping to do is to enter into a discussion to negotiate to get these waters clean.”

Baykeeper’s Egoscue said Malibu’s extensive new septic upgrade ordinances, runoff rules and $35 million investment at Malibu Lagoon are simply too little, too late.

“Maybe the city should be given some credit for taking some steps,” she said. “But that’s just taking some dead fleas off a flea-ridden dog, and the dog is dying.”

Opposition to the ‘Mel Gibson’ News-for-Pay Bill Emerges as Senate Prepares Its Review

• First Amendment Issues Raised by Publishers Organization •

BY ANNE SOBLE

AB 920, the bill that would make checkbook journalism—the sale of information, especially celebrity news, to broadcast, print and Internet media outlets—a crime has its first major opponent, the California Newspaper Publishers association.

The measure, authored by Assemblymember Julia Brownley (D-Malibu), unanimously passed the Assembly last month and is set to go before the Senate Public Safety Committee on June 26.

Brownley said AB 920 was introduced at the direct request of the Los Angeles County Sheriff’s Department, after documents on the July 2006 DUI arrest and alleged verbal outbursts by Malibuite Mel Gibson became public immediately after the incident.

The bill has the support of state and local law enforcement organizations, and with the exception of the celebrity website that disseminated the documents, there has been no criticism of the measure.

That changed last week with a letter to Brownley from the state’s largest newspaper organization indicating that its directors have voted to oppose AB 920.

California Newspaper Publishers Association General Counsel Thomas Newton wrote, “CNPA opposes AB 920 because it would criminalize speech that is obviously protected by the First Amendment, and, we believe, would be struck down by the first trial court faced with a prosecution under the law.” The organization requests that Assemblymember Brownley “withdraw this bill from consideration.”

Describing the measure as an effort to “gag law enforcement and court officials and officers,” Newton cites court cases related to witnesses and jurors selling their stories that courts have voided and challenge’s the bill’s premise that the judicial process requires only “proper legal and timely release” of information, dismissing this concept as “whatever that is.”

Newton says the bill’s prohibition is so broad it would create a liability anytime anything is exchanged for information, even if that information has already been made public by the media.

Brownley countered CNPA’s stance on Tuesday, stating that “the cases that CNPA cited appear to have had to do with gags on jurors that had already been excused after the conclusion of a trial, and that is a very different situation from AB 920.”

She reiterated, “My bill applies only to information that is obtained during the course of a criminal investigation, and that, therefore, could seriously compromise our judicial process. Bribing public officials for such information greatly increases the chances for such corruption.”

However, Brownley then added, “I share CNPA’s commitment to protecting our First Amendment freedoms, and would do absolutely nothing to diminish them.”

AB 920 targets sheriff’s deputies, police and California Highway Patrol officers, as well as law enforcement agency staff employees who sell privileged information, in addition to reporters or other media reps who offer to pay for information. Violators could be charged with a misdemeanor and fined up to $1000.

The prohibitions would end 90 days after a guilty plea, conviction or dismissal. Watson contends that the bill’s time limit does not minimize the loss of the First Amendment rights.

Critics and proponents agree that anyone in the categories singled out by AB 920, what the CNPA communication dubs “the gagged class,” can legally give information to the media without liability if there is no compensation.

The bill has no effect on the traditional concept of the whistleblower who gives information out of moral outrage, to get revenge, or as the result of duplicity. Such action might violate a public agency’s internal policy and subject the individual to discipline, but it is not a crime.

DA’s Office Rules Peacocks Must Go

• City Appears Perplexed by the Action

BY BILL KOENEKER

The latest chapter in the saga of the wild peafowl of Point Dume took a new turn Monday when the Los Angeles County District Attorney’s office announced it plans to implement a recommendation to have the feral birds removed from the area.

The matter, which many, including city officials, consider a neighborhood matter, escalated when the District Attorney’s office got involved after Charlene Kabrin was accused by neighbors Danny and Vera Erico and Los Angeles County Animal Control of disturbing the peace.

A hearing officer from the district attorney’s office mediated a settlement this week in which the resolution was removal.

“We did have an office hearing today and have determined the birds are disturbing the peace. We are recommending they be removed by Animal Control and given to a rescue group,” said Jane Robinson, a spokesperson for the DAs office. “We referred it to Animal Control.”

Some city council members seemed perplexed by the turn of events and turned to City Attorney Christi Hogin for answers. “What is the jurisdiction of the DA?” asked Mayor Jeff Jennings.

“We have to look and see. We don’t know what the status is. It is not a final hearing,” answered the city attorney.

Hogin said that historically the dispute has been that the peafowl are wild and certain residents were feeding the feral birds and causing them to unnaturally congregate in the same area, altering their wild pattern.

“We have never taken that position,” she said, citing the history of administrators who have elaborated on the council’s policy siding with the birds when the issue surfaced in 1999 and then in 2005

Robinson described the out-of-court hearing as mediation that is typically held about a potential charge before it goes before a judge. “We negotiate a settlement. All the parties may not be pleased,” she added.

Robinson said the office hearing is designed to keep the matter in an informal setting before formal charges are filed. Charlene Kabrin had been threatened with a charge of disturbing the peace.

“We had the office hearing to settle it. She allegedly was feeding the birds and had allegedly not allowed animal control to come on her property,” added Robinson.

The spokesperson for the DA said a letter written by the city outlining the municipality’s position on a hands off policy for wild animals was considered.

“The letter went out to the DA’s office and to Animal Control,” City Manager Jim Thorsen told council members.

“I can understand the DA determining a person is disturbing the peace, but the peacocks?” The mayor noted, “Somebody has it in mind they can take the peacocks away. Animal Control works for us.”

Former planning commission member Jo Ruggles, who spoke to the council about the matter and had attended the hearing, said she tried to convince the hearing officer about the wild nature of the birds. “I said the birds are protected. That they are wild,” she said, adding the hearing officer glanced at the city’s letter during the hearing.

Ruggles told the Malibu Surfside News that after the officer seemed convinced the peafowl are wild, she said she had jurisdiction, not the city.

Hogin, after hearing Ruggles’ account, said what the council was listening to was third party information and it was important for her office to determine exactly what action is being contemplated.

Robinson said the DA’s office did not see the matter as simply a dispute between two neighbors. “But there were 17 people who signed a petition. This has been going on for a long period of time. There were other people who signed the complaints,” she said.

However, another neighbor, Annabelle Heiss, who also attended the office hearing, took issue with the petition, saying there were only 15 signatures and most of the names were people who did not live nearby.

“Several were not in the immediate neighborhood. They were in outlying areas,” she said. “I really enjoy the wild sounds [the peafowl] give to Point Dume.”

During the last series of incidents, after the city intervened, the animal control department, which contracts its services to the municipality, took a closer look at the legal interpretation of the game fowl confinement and ownership rules and concluded the birds are not being housed or confined in any way, and because they are free to come and go at will, it was determined that the staff members had acted in haste.

It remains unclear when the birds would be removed and where they would be placed.

Sampling Conducted to Trace Source of PCH Shoulder Water

• RWQCB Testing Will Tell If Permanent Flows Beneath Zuma Bluffs Pose Health Hazards

BY HANS LAETZ

Two ponds full of cattails, reeds and other marshy plants that flourish along the land side of Pacific Coast Highway at Zuma Beach have caught the eye of the water police. Now, homeowners on the bluffs may find themselves with a festering wastewater problem.

Staffers from the Los Angeles Regional Water Quality Control Board took samples at two permanent swales of murky, algae-sprouting runoff along PCH east and west of Guernsey Avenue three weeks ago. The two workers also photographed water seeping out of the bluffs beneath houses on Guernsey and Surfside Way.

Test results are due in late July, and depending on the results, homeowners living on the bluffs above PCH may face mandatory landscaping water cutbacks or be required to replace septic tanks, officials said.

“Here’s a nice wild watercress,” said field tech Toni Callaway, poking at one plant during the early-June sampling session. “I don’t think I would want to eat it, though,” she said, pointing at the murky water oozing from beneath a nearby blufftop house.

“The presence of those seepages during this time of drought indicates that either there is over-irrigation, or effluent from septic tanks gathering on the roadside, said water board chairperson Francine Diamond. It is also possible that someone has bypassed their septic tank with household runoff, which flows through the soil to the roadside swamps, she said.

A third possibility. according to scientists, is that the water is from natural springs. The fact that the water may originate as septic seepage does not means the water is necessarily contaminated as it surfaces. But such a flow could be illegal and harms the environment as it gives bacteria and viruses a place to breed.

Scientists are currently analyzing the samples for nitrites, nitrates, ammonia, nitrogen, bacteria and soap ingredients, said Steven Cain, the board’s executive director. Chemical analysis might detect pesticide or fertilizer residues, which would indicate runoff from landscaping.

E. coli and other bacteria can be traced back to septic tanks, and Los Angeles County is currently conducting a separate study in which human DNA is being sought in polluted creeks to determine if the pollution is of human origin.

The regional water board expects results in four weeks. “The results will go to the City of Malibu, and they are required to order corrective steps,” said Diamond.

“We’re throwing a wide net looking for the typical pollutants that would give us an idea for a source for some of these ponds,” said Cain.

Detailed rainfall and water table levels are kept by the Los Angeles County Department of Public Works at a nearby sewage treatment plant, and an engineer there says years of drought have left groundwater levels in the Trancas Canyon area very low.

Nevertheless, arroyos along the urbanized coast have begun flowing year-round in the last decade, longtime residents say. Overwatering of plush landscaping and a water table saturated with septic tank water being cleansed through the soil may be to blame, scientists said.

In recent weeks, state Department of Transportation workers have bulldozed muck off the road shoulder to allow the stagnant water to better drain into culverts. While that may reduce the ponding at the pavement’s edge, the dirty water is piped under PCH into the sand of Zuma Beach.

Ocean water at Zuma Beach near Trancas has generally tested clean, according to the regularly scheduled testing by the group Heal The Bay.

Publisher’s Notebook:

Mixed Messages in Malibu

BY ANNE SOBLE

Now that the U.S. Maritime Administrator, a title that always makes me think of Gilbert and Sullivan music, has officially closed the book on BHP Billiton’s proposed Cabrillo Port floating LNG regasification facility, Malibuites can experience a true sense of closure. This is probably none too soon, given some of the acquisition rumors—acquisition rumors are as basic as breathing in the energy and resources world—that Chinese government interests are nurturing fantasies of acquiring BHP as a hedge against that nation’s burgeoning energy needs in the decades ahead. And we thought the Aussies were a complicated lot. Imagine China’s lack of substantive environmental concerns and its freewheeling approach to labor rights and other social issues.

Don’t we all feel better knowing that the District Attorney’s office is going to keep Point Dume from going to the peacocks (yes, one should say peafowl, but hardly anyone calls them that)? The same DA’s office that couldn’t convict a celebrity of bad acting has decreed that the birds must be crated off to a sanctuary. Has no one looked into how the same county entities and the local government resolved the peacock problem in Palos Verdes Estates (after going all the way to the state Supreme Court)? The birds and the people seem to get along just fine down there. As for the local folks who can’t handle occasional bird noise during the mating season, why did they want to move to an area that takes pride in what little rural heritage it has left? And if noise really is their concern, where are they when people are needed to take on the round-the-clock barrage of leaf blowers and megadecibel motorcycle exhaust pipes?

Hope the recent increases in the sheriff’s department budget for Malibu doesn’t include a surcharge for the extra costs connected with the Hilton circus that is now underway. Of course, this has nothing to do with celebrity, campaign donations or photo opportunities. One of the saddest aspects of it all may be that there’s a generation or two that will never understand the iconic movie tag, “We’ll always have Paris!”

City of Malibu Hit with Surprise Litigation over Role in Ocean Pollution

• Group Alleges that Hundreds of Illegal Discharge Pipes Dot Local Hills and Beaches•

By Hans Laetz

A pair of non-profit agencies is getting ready to sue the City of Malibu for allowing water pollution to flow into the ocean, a potentially-costly lawsuit that could ultimately put a federal judge in charge of local septic tanks and storm drainage pipes.

One of the groups charges that between 500-700 illegal discharge pipes dot the hills and beaches of Malibu, each and every one of them regularly spewing washing machine discharge, dishwasher waste and other illegal contents into Santa Monica Bay

But that sweeping charge is not substantiated or documented in the formal notice that the group Santa Monica Baykeeper served Wednesday against Malibu and the County of Los Angeles. Rather, Baykeeper and the Natural Resource Defense Council claim Malibu has allowed pollution to flow into the ocean in three storm drains at Escondido Beach and at Malibu Lagoon.

The groups also complain that the city has not yet won permission to let rainwater flow into a protected section of Santa Monica Bay. But a spokeswoman for the State Water Quality Control Board said Malibu can’t be given a permit because the state has yet to write the policies on granting such permits, and won’t be finished until at least early next year.

Baykeeper and NRDC also blame Malibu for high levels of cyanide, sulfates and fecal bacteria in Malibu Creek, which drains more than 200 square miles of Ventura and Los Angeles counties and about two square miles in the City of Malibu. The local municipality is investing over $35 million in the “Legacy Park” water filtration project, designed to remove all pollutants from parking lots and streets along the Malibu Creek watershed at its southern terminus.

Well and good, said Santa Monica Baykeeper director Tracy Egosku. But only the threat of the lawsuit will get Malibu to put its money where its mouth is, and follow through on promises to raise taxes to begin aggressive policing of alleged wastewater abuses, she said.

“There are 500 to 700 pipes in the City of Malibu that are carrying water from washing machines, dishwashers and other illegal sources into the ocean,” Egosku said. “These pipes are all carrying runoff other than rainwater, and, even when it is not raining, they are flowing.”

Baykeeper joined the Natural Resource Defense Council Wednesday in serving a notice that Malibu illegally allows tainted street runoff into the ocean, that the city is responsible for the Malibu Creek pollution levels, and that the city has not accurately reported to the state its alleged inability to meet those laws.

City officials reacted with incredulity, both at the claim of at least 500 illegal pollution sources, and to the fact that the city has been actively working with state agencies and several environmental groups to solve regional pollution issues like Malibu Creek. The city is also credited by some environmental activists as having the most-proactive water pollution policies in the county.

“I sit on committees with Tracy and I am surprised she would claim that about the city,” said Mayor Jeff Jennings. “If that were happening, and Malibu residents were walking down a beach and saw something flowing out of a pipe, our phones would be ringing off the hook.”

“They may be talking steps but it is too little,” Egosku said. “These pipes are there, polluting, and the city was put on notice in 2005 and 2006 that this is not acceptable nor legal.”

The complaint notes that the city and county are prohibited from allowing any wastewater at all—including storm runoff from streets—to flow into the ocean from Latigo Canyon west past the county line, which was designated an “Area of Special Biological Significance” by the state legislature decades ago.

Although Egosku claims the State Water Quality Control Board told Malibu it was illegally allowing stormwater to drain into the bay, those letters actually told the city and county they needed to apply for permission to allow that runoff to flow into the ocean.

A spokesperson for the SWQCB in Sacramento said the stormwater runoff rules have yet to be written, making it impossible for Malibu or any other city to meet regulations that haven’t been adopted. Nevertheless, Baykeeper says the permit hasn’t been granted, so Malibu is in violation.

Jennings noted that is a catch-22 situation. “The city has been doing everything it possibly can in order to comply,” Jennings said. “And we’ve been doing it with the support and the cooperation of the Baykeeper, it’s not like they’ve been telling us there’s other stuff we need to do.”

Indeed, Baykeeper and city representatives have sat together on a task force of government and private agencies that meets monthly to plan clean water initiatives. Baykeeper representatives have participated in many of those meetings attended by a reporter, and have never voiced impatience with the city’s efforts.

A spokesperson for the Los Angeles County Department of Public Works said, “Frankly, we are disappointed the groups that have been partnering with us in our efforts to prevent stormwater pollution all of a sudden say they will sue us.” Gary Boze said, “We’ve worked side-by-side with them to come up with solutions, so this really does come to us as a surprise.”

NRDC attorney Anjali Jaiswal said part of the problem may be a failure to communicate in the form of mandatory reports. “It may well be that the City of Malibu is doing all it can, but it has not submitted the annual reports that it is required to," said Jaiswal. “It’s the results that matter, and that’s what this lawsuit focuses on, there is supposed to be clean water out there, and there isn’t.”

NRDC spokesman Daniel Hinerfeld added, “The point of this lawsuit is not to force Malibu to spend large amounts of additional money, or to enter into new treatment plans, but to state for the record what they have spent and what they hope to achieve” with existing water cleaning efforts.

“What we are hoping to do is to enter into a discussion to negotiate to get these waters clean.”

Baykeeper’s Egosku said Malibu’s extensive new septic upgrade ordinances, runoff rules and $35 million investment at Malibu Lagoon are simply too little, too late.

“Maybe the city should be given some credit for taking some steps,” she said. “But that’s just taking some dead fleas off a flea-ridden dog, and the dog is dying.”

City of Malibu Says Voluntary Beach Access Way Requires Coastal Development Permit

• Property Owner’s Action Spotlights Use Rights Issues

BY HANS LAETZ

Civic virtue, retribution or not-so-neighborly internecine warfare?

No one is quite certain about a Carbon Beach homeowner’s decision to open up a new access gate for the public to get through a row of mansions and enjoy a once-exclusive stretch of Malibu’s toniest beach.

But whatever the motive may be, the City of Malibu says the access route needs a coastal development permit, and doesn’t have one.

The new footway to the beach is several hundred yards east of the once-controversial accessway at David Geffen’s beach house. It improves pedestrian access to the eastern end of what is popularly known as “Billionaire’s Beach,” the private crescent of sand stretching from Malibu Pier east to the rocks at Carbon Creek.

A spokesperson for the house’s owner, Peter Kleidman, said the access was opened for the first time last week “because he wants everyone to enjoy the beach.” Valeri Michaels said her boss “just sees this as something to give back to people who are less fortunate.”

But a few neighbors see something a little less altruistic. Although none would allow their names to be published, interviews with several Carbon Beach residents paint a picture of an absentee owner who opened the difficult-to-get-to beach to the public as a possible act of retribution.

“He did this to get even with the guy he sold another house to,” said one woman. Kleidman, who owns the home at 21950 Pacific Coast Highway, at one time owned the house immediately to the east and sold it to another man, she said.

Several beach residents said Kleidman suffered seller’s remorse, but the buyer refused to let him out of the sales contract. Kleidman allegedly opened the gate to the public as a result, these neighbors said.

Kleidman was at his London residence and not available to react to the neighbors’ allegations. Earlier, spokesperson Michaels had allowed that although “there have been some disputes” with neighbors, she stressed that the accessway was created in thehopes that “inner-city kids, people from the Valley, everyone can enjoy this magnificent beach.”

Michaels said Kleidman is a Wall Street financier who has decided to sell all of his Malibu properties and live in his houses near New York City and London.

The wooden gate at 21950 is marked across the highway by a “Beach Access” sign that appears on close inspection to be an imitation of the official “brown barefoot” signs posted by the state at publicly operated easements.

Persons opening the unlocked wooden gate and walking to the beach find themselves standing next door to the beachfront mansion of one of California’s wealthiest powerbrokers, Eli Broad, on an exclusive stretch of sand populated by a number of equally impressive movers and shakers.

A check of public records at the City of Malibu shows that Kleidman purchased building permits early this year to remodel the garage at the house, and build a new beach access way. The new route, however, would be on the eastern edge of the property, and is not shown as any possible permanent dedication to a public agency.

The current route to the beach, adjoining Broad’s mansion on the west side of 21950, is separated from the house’s patio by a temporary-looking chain-link fence that does not appear on the construction permits.

The path is unlocked Thursdays-Sundays during daylight hours, and affords access across a wooden patio between Kleidman’s and Broad’s homes. A trash can is provided, and the gateway appears to be managed similarly to other public access routes mandated by the California Coastal Commission.

“By emulating the Coastal Commission’s regulations and requirements, he’s protecting himself against any allegation of creating a private nuisance,” said John J. Thyne Jr., a real estate law professor at the Santa Barbara-Ventura Colleges of Law.

Thyne said adjacent homeowners could only win a lawsuit if they could prove that the general public is a nuisance to beachfront landowners—a so-called “private nuisance” lawsuit. “That is not something a court is likely to do, particularly when there are agencies trying to increase access to the beach.

“As long as there is no local, county or state ordinance which he’s in breach of, and no covenants or homeowners association rules, I think he’s absolutely within his rights,” Thyne said.

The city’s planning department learned of the matter from a reporter this week. “Right now we would view this as a new development, which would require a coastal development permit,” said Planning Manager C.J. Amstrup. Whether such a permit can be granted cannot be determined yet, he said.

Like all coastal permits, this one would need to go before the Malibu Planning Commission, and could be appealed to the City Council and Coastal Commission.

Since the new pathway’s operating conditions mirror government-approved conditions for access easements just up the beach, the city would be hard-pressed to legally deny it, Thyne said.

Other Carbon Beach residents interviewed last weekend said they were aware of the situation, and didn’t care much. “The reality is, this is public beach and it has been denying that reality to think it is private,” said one beachfront resident, who would only give his name as Jonathan.

An Altadena man visiting a beachfront resident said he thought Kleidman’s unilateral action “was kind of rude. I can understand why people would want access limited, even though it’s a public beach,” said Tony Reece.

The new accessway was first reported in the Native Intelligence blog, and a handful of people on Saturday said they saw the sign on PCH and stopped to use the walkway.

Malibu Peafowl Saga Flies into the DA’s Hands

• Homeowner Charged with Abetting Miscreant Wild Birds

BY BILL KOENEKER

The war over the wild peafowl of Point Dume has escalated with a property owner near where the feral birds congregate being cited for disturbing the peace.

Charlene Kabrin is accused by neighbors Danny and Vera Errico and Los Angeles County Animal Control of violating penal code 415. She is scheduled to attend what is called an office hearing next week at the local Los Angeles County District Attorney’s office to address allegations that she is disturbing neighbors.

Kabrin had recently appealed to the Malibu City Council to clarify its policy towards the wild birds and was told members would direct municipal staff to inform the various other agencies about the city’s policies on wild animals.

“I saw the notice,” said Mayor Jeff Jennings. “I talked to the city manager about passing the information onto the DA and animal control.”

City Manager Jim Thorsen, on Tuesday, said he had made calls to the appropriate agencies but had not yet heard back.

On several occasions homeowners have been cited for either feeding the birds or allegedly keeping them on their property.

The issue had surfaced in 1999 and then in 2005 when the council again tackled the issue of the feral status of the birds.

During the last two occasions and the most recent, council members have intervened, insisting the peafowl are wild.

“I’m hopeful that the charge will be dismissed and the matter is over, or at least until the next mating season,” said the mayor. During the spring, the peafowls’ lusty mating calls are well known to longtime residents.

During the last series of incidents, after the city intervened, the animal control department, which contracts its services to the municipality, took a closer look at the legal interpretation of the game fowl confinement and or ownership rules and concluded the birds are not being housed or confined in any way, and because they are free to come and go at will, it was determined that staff members had acted in haste.

The animal control officer that issued the citation was not available for comment, and no one at the Agoura Animal Shelter could answer questions. The hearing officer from the DA’s office was also unavailable for comment.

City Council to Extend Moratorium on New Cannabis Dispensaries

BY BILL KOENEKER

The moratorium on prohibiting the establishment of medicinal marijuana dispensaries is fast approaching and Malibu municipal officials say they need more time to study the issue.

The Malibu City Council, at its meeting next week, will be asked to continue the moratorium.

Currently, there are several “pot pharmacies” in Malibu and there are no regulations in place governing the operation of the facilities, according to the city attorney’s office.

The city council on June 26, 2006 approved an interim urgency ordinance that established a 45-day moratorium on the establishment of any new medical marijuana dispensaries. The measure was extended on August 21, 2006 and is set to expire this month.

“Staff anticipates a request will be coming forward at the June 25, 2007 city council meeting to extend the interim urgency ordinance,” wrote Assistant City Attorney Lauren Feldman.

Council members will be told the staff is still researching the possibility of permit requirements, siting criteria, operational regulations and determining if the operation of the dispensaries can “be safe and allowable use of property within the city.”

Meanwhile, federal agents have been raiding dispensaries in Southern California. Some of these raids took place in Los Angeles County in the past several months.

A consideration of the agents, according to city officials, is whether the marijuana comes from a legal source.

“It is still unclear at this time how to ensure that the dispensary is operating within the strict confines of the [law],” wrote the city attorney’s office. “Upon adoption of the interim ordinance, staff also began researching the local impacts associated with the operation of dispensaries to determine if operational or development regulations should be adopted.”

Addtionally, the conflicts between the federal and state laws are also problematic for municipal officials. “Due to the complexity of these issues, staff anticipates that the research and analysis will not be complete before the expiration date of the moratorium,” Feldman added.

In 1996, state voters enacted Prop 215 called the Compassionate Use Act of 1996 allowing individuals to grow and use marijuana for personal medical purposes on a physician’s recommendation. In 2003, the state legislature adopted the medical marijuana program, which requires the state Department of Health Services to establish a program for issuance of identification cards to qualified patients.

However, the U.S. Supreme Court held that federal laws prevailed, prohibiting the possession of marijuana for personal use.

Federal agencies have repeatedly denounced the state’s attempts to legalize the herb for medical purposes and have repeatedly taken enforcement action, including the most recent raids.

During the raids, federal agents shut down operation of the dispensaries, seized all of the marijuana and cash on the premises and detained employees and customers.

State Agency Says It Needs More Time to Address the Illegal U-Turn Issue at Zuma Beach

• Stretch of PCH at Beach Was Scene of Two Recent Fatals

BY HANS LAETZ

A spokesperson for the California Department of Transportation says it may be several weeks or months before any decision is made about installing a concrete median, plastic paddles or other devices to prevent illegal U-turns along state Highway 1 at Zuma Beach, the scene of two fatal U-turn crashes in six months.

That informal timetable would push any installation back to after this year’s busy summer tourist season, and Malibu’s mayor said he would ask the city to push for quicker action.

Malibu Mayor Jeff Jennings said last week the city would push for installation of some sort of visual barrier on the three-quarter-mile long section of highway between Guernsey Avenue and Morning View Drive. “It could be candlesticks, or some other device,” Jennings said. “There are several alternatives available.”

Several Malibu residents have urged Caltrans to extend a median down the highway where it parallels Zuma Beach. Thousands of cars are parallel-parked on the shoulder every week, and many residents have recounted experience of accidents or close calls caused by drivers making fast U-turns to grab a parking space, or take advantage of what they erroneously think is a gap in traffic.

Plastic poles called candlesticks are used by the city on Webb Way to prevent illegal turns. A larger alternative, called channelizers, uses large yellow paddles. Caltrans has installed them at several PCH locations where illegal turns have been a problem.

Caltrans spokesperson Judy Gish said the agency “certainly is aware of the issue” after several newspaper articles quoted Malibu drivers who have lost cars to traffic collisions caused by illegal turns on PCH at Zuma.

“This is something we will be moving on, with all this public support, because that (public call) is not something we have seen in the past.”

But Gish said the state transportation budget is allocated to nearly every penny, and “Caltrans doesn’t have an account of unallocated funds” sitting around.

On PCH this week, a single white flip-flop sandal remains between the twin double lines, marking the spot where some four weeks ago a 78-year-old woman was killed when her husband executed an illegal U-turn and their car was hit by another. That wreck happened at the exact same spot where a December illegal U-turn resulted in the death of two motorists.

Sheriff’s deputies said forcing U-turns to be made from turn lanes adds to motorist safety, as all four lanes of traffic do not have to be crossed at once.