City Attorney and SMMC Head Don’t Rule Out Resumption of Negotiations

• Malibu Has 60 Days to Consider Filing Legal Challenge

BY ANNE SOBLE

The unanimous action by the California Coastal Commission disallowing a municipal ban on overnight camping could serve as a catalyst to bring the City of Malibu and the Santa Monica Mountains Conservancy back to the negotiating table, or it could lead to yet another round of contentious legal wrangling over the issue.
All parties indicate that it may be too soon to determine which course of action will follow. Malibu City Attorney Christi Hogin said the city has 60 days from the June 10 meeting date to file a lawsuit challenging the commission’s decision.
Hogin told the Malibu Surfside News on Tuesday, “There is always room to negotiate; the courtroom is not the best place for public entities to work out their differences, so I would hope that there would be opportunities to explore agreement.”
SMMC Executive Director Joe Edmiston said after last week’s CCC action, “My door remains open. The question is not whether or not the Santa Monica Mountains Conservancy will compromise, it is whether or not the Ramirez Canyon folks and the Malibu City Council will. Neither of these entities seems willing to budge even an inch.”
Edmiston told The News that “the Coastal Commission has unequivocally set the direction for public access and camping in Malibu.” He added that “our consultants are hard at work preparing the Public Works Plan and the EIR. We hope to have public hearings on both of these documents in early fall.”
But City Attorney Hogin expressed concern with the commission’s decision-making process; that the equal access and social justice arguments that appeared to have swayed the coastal panel were not legal arguments. She said, “I think there is a sense among some that Malibu residents seek to limit public access for nefarious reasons. In this case, the criticism is not well taken because the city’s proposed LCP amendment was centered around creating additional access (including trails and public transportation).”
While many proponents of the SMMC parks plan were critical of Malibu residents, Edmiston does not paint the community with a broad brush. He believes the Conservancy has a support base of local people who value the open space protections the agency has helped to create, but indicated, “Outreach to supporters is difficult because they are intimidated by other neighbors in Malibu.”
“He added, “I’ve gotten phone calls and e-mails saying, ‘I’m with you, but just can’t say so in public.’ I understand the difficulty of Malibu residents speaking out in our favor, and frankly don’t expect our supporters to be vocal. After all, they have to live with their neighbors in the checkout line at [the supermarket].”
But as Malibu’s city attorney sees it, the issue is not a popularity contest or the merits of the camping debate but that “the Coastal Commission enacted a law in Malibu. That means that a statewide executive branch agency of appointed members exercised the powers of the elected city council.”
Hogin said, “The commission used an obscure section of the Coastal Act which, under particular circumstances, authorizes the Coastal Commission to ‘override’ a city's certified LCP where necessary to facilitate a regional energy facility or public works project.”
Of the exercise of the authority by the CCC, Hogin said, “All coastal cities: beware.”
Although the Conservancy calls its parks package a “public works plan,” or PWP, the city attorney said that it is not a “public works plan,” even though the SMMC “sought to treat it that way,” and seek an “override” of the city’s LCP, which would change those parts of the LCP with which the Conservancy’s plans were inconsistent.
Hogin noted that “the advantage to the Conservancy of a PWP is that no individual coastal development permits are required to build improvements contemplated by the PWP.”
The city’s chief counsel described the Conservancy projects as a “purported ‘public works plan’,” while acknowledging that “aspects of the Conservancy’ plan were positive and its overall goal [of] improved recreation areas linked by a trail system...was one the city shared.”
That notwithstanding, the city contends that “certain proposals in the ‘plan’ (such as adding parking spaces, restrooms, trailheads, camp sites) are ‘development’ within the meaning of the Coastal Act and the city contends that the improvement proposals are more appropriately addressed by obtaining a coastal development permit consistent with the LCP. Moreover, the plan proposed new uses and policies inconsistent with the certified LCP; accordingly, the appropriate legal mechanism in accordance with the Coastal Act to achieve the Conservancy’s goals was to amend the LCP.”
The city’s main legal contentions with respect to the PWP are that it does not qualify as a “public works project” under the provisions of Public Resources Code Section 30515, and the Conservancy is not authorized to undertake public works projects.
“If the Conservancy anticipated the uses, plans, policies and development proposals comprising its Enhancement Plan at the time the city’s LCP was being adopted and certified by the commission, the commission is not authorized to process an amendment to the city’s LCP, except as provided in the Coastal Act.”
Hogin stresses that “there is no evidence of a public need for the Conservancy’s comprehensive Enhancement Plan policies and proposed development standards. Desirable recreation improvements and improved access strategies do not trigger the provisions of the Coastal Act that allow for an LCP override in narrow circumstances for certain necessary energy facilities and public works projects.”
The city attorney added, “There is no evidence that failure to adopt the Enhancement Plan and its particular policies and development standards will have an adverse effect on public welfare.”
Edmiston, however, told The News, when speaking of Ramirez Canyon in particular, “After all these conditions that the Coastal Commission imposed, everyone will be safer.”
He said, “Ramirez Canyon will have a full 20-foot roadway for the safety—not just (or even primarily) for the campers at Ramirez Canyon Park—but for all the 52 homes along this road. Based on what the fire department is requiring and what was said at the Coastal Commission hearing, I’m sure the commission will issue the Conservancy a permit to remove all obstructions illegally placed in the right of way. Removal of these obstructions should be welcomed by everybody.”
The SMMC head said, “Malibu will be safer with hikers (always with cell phones) on the trails, mountain bike units on patrol, and park rangers supervising the campgrounds.”
He said, “I’m sanguine about the future because over the past 30 years we have faced this situation many times. For example, the parks and overlooks along Mulholland Drive were as controversial back in the ’80s as Malibu is now. But today, the Mulholland Drive overlooks are gems of the city: well patrolled and maintained, and this fact is universally recognized.”
It isn’t certain how this public policy debate is ultimately going to play out. If the city and the SMMC continue to talk past each other, the acrimony could continue unchecked.
With the City of Malibu focused on the letter of the law and the Conservancy primarily concerned with pragmatic public policy results, the negotiating table might be the best way to avoid the kind of prolonged legal wrangling that only benefits those accruing billable hours.