Malibu Surfside News

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Wednesday, June 27, 2012

City Council Approves MHS Field Lighting Plan with New Conditions

• Lighting Fixtures and Cross-Arms Must Be Lowered During Summer to Mitigate View Impacts

BY SUZANNE GULDIMANN

The Malibu City Council, with Mayor Laura Rosenthal and Councilmember Skylar Peak recused, voted 3-0 to approve permanent athletic field lighting at Malibu High School with some new conditions.
Malibu City Hall Council Chambers were filled to overflow for the hearing. More than 50 members of the audience sat on the floor or stood at the back of the room. Others crowded around a big screen TV in the building’s foyer or sat in the hall.
The hearing began with a discussion of recusal.
“It is proper procedure is to recuse yourself,” City Attorney Christi Hogan states. “There is no shame in it. In this particular case there are two issues. The mayor was unable to participate in the vote because she had been involved with the original application for school district to put up lights and has contributed to the school’s “Bring on the Lights” fundraiser.
“Councilmember Peak when he was just Skylar, sent a letter to the California Coastal Commission [with the] opinion that lights should be temporary and used for just a few nights,” Hogin said.  “Both sides are entitled to have the decision made by people who have not yet made up their mind or there is no evidence that they have made up their mind. If there is evidence that appears to create a bias,” she said.
The issue of bias and recusal was key in the city’s unprecedented decision to bypass the planning commission and have the request for a Coastal Development Permit and Conditional Use Permit to permit the lights heard instead by the City Council.
Hogin stated that two of the planning commissioners had donated to the lighting fundraiser and that a third lived within close proximity to the school, leaving only two planning panelists. A quorum requires three.
The city council heard a staff report on the nuts and bolts of the project, including a complicated set of conditions mandated by the Coastal Commission that limit the number and frequency of nights-no more than three per week, no consecutive nights, only 18 nights to 10:30 p.m., and limits on use during peak bird migration periods.
The technical details were followed by more than four hours of public comment. Tempers and passions ran high and the testimony was interrupted repeatedly by applause, boos, and shouted comments from the audience.
“There are no permanent lights for movie sets,” former Councilmember Jefferson Wagner said. “[Filming] is not an imposition to any neighborhood. However permanent lighting is something that will impact the neighborhood. I’m asking you to explore hydraulic lights.”
“Some of the pictures you saw tonight were from my house,” said longtime Malibu resident Terry Lucoff. “I moved to Malibu Park. I love Malibu Park. In the 1990s we voted for the city against voting for the county. We wanted a city that would protect us, the people of Malibu. I’m talking about the people who live in Malibu and are voters. You are the only people that do represent us. The impact of the lighting has to be taken in context. [There is] a proposal for a parking lot with new lighting, new lighting in the old parking lot. Step by step, Malibu Park will become a totally lighted community.”
“The Malibu Sharks [football team] is threatened wildlife,” said Chamber of Commerce President Don Schmitz. “If you watch the Sharks play football or lacrosse that’s some wildlife.”
“Joe Edmiston [the executive director of the Santa Monica Mountains Conservancy] can have a sign up sheet in the lobby where [lighting opponents] can sign up to donate their property and have their home torn down,” Schmitz said. “It’s about people getting together and getting unified.
Attorney Frank Angel, speaking for the Malibu Township Council and “many Malibu Park residents” called the hearing “premature without the benefit of the planning commission.”
“They have original jurisdiction,” Angel said. “It’s unprecedented. Out of 10 decision makers we are left with four.” Angel requested that the item be remanded to the planning commission. “How can such a donation [on the part of two planning commissioners] create likelihood of bias so great?” he said. “There is no precedent to support that it would.”
 “The environment needs and deserves protection,” lighting activist and MHS parent Pete Anthony said. “It’s an important thing to say is that we recognize that there are private citizens that have view impacts. We are not dismissing this. It’s important to point out that if you limit [the number of nights the lights could be used] further it becomes a question of if its worth it.”
Anthony said that the football field is used by boys and girls junior and varsity soccer, boys lacrosse, girls dance squad, singers, musicians, drum line, and two football teams.
“In the past we had lights. We had large crowds, a safe, healthy gathering place,” Anthony said, adding that at day games there are “more cheerleaders than fans. They are sparsely attended.”
 “I speak on behalf of our football team,” said incoming Junior Nick Anthony. “We work absolutely hard. These lights are utterly important to us, utterly important to our team. It makes it work. It’s an amazing, fantastic experience. A homecoming at home benefits not only my team but everyone there,” Anthony said. “That’s a really important thing. We lose players to other schools simply because of lights. It’s just a fact here. Not only does football lose them other teams lose them.”
“One of my family’s favorite things is to go to a night game,” MHS athlete Winston Churchill said. “My father works but he can always come see us play at night games. [It’s] one of the most fun things in the world to do.”
Special education activist Laureen Sills told the council how much the lights mean to her son Danny. “Danny has driven everyone crazy to support the lights,” Sills said. “Danny has Asperger’s. They don’t get invited to do the things that other kids do. Shy kids, kids who don’t like to do other things, it’s a place to go, an even playing ground. They can be part of the school spirit. There are lots of people in Malibu who are home alone. It gives lots of people a chance to be at MHS without an invitation to do something on Friday night.”
“Do you have the data you need to make a decision?” asked Malibu Township Council spokesperson Steve Uhring.“You don’t have independent lighting experts. You can’t tell us how far away its going to be seen. You don’t know how many views are going to be impacted. Little orange balloons turn into 12-foot arms with lights on them. How many homes will be impacted? If you don’t know the numbers, how can you make a decision?”
“Tell these people who have been living there for 50 years, who work and pay taxes,” Uhring said. “I don’t think it’s a good deal [for them]. They complained early and often. As a result from those complaints, [the school district] in a 1994 letter stated there would never be any light. Should their word mean something? They said there would be no lights and people relied on that and does that mean anything to anyone?”
“I’m a football dad. We are big football supporters but I live right by that field,” said Malibu Park resident John Ellis.
“Six lights on 55-foot poles, that was fine for the kids. When the city got authority from the Coastal Commission it wasn’t a blank check,” said Ellis. “The Mitigated Negative Declaration was based on five poles, 55 feet high. “[This proposal is an] increase in 60 percent in height, 50 percent in wattage. Football is a great program but the idea that it is going to make all the difference in the world to have four poles 70 feet high with 72000 watts is not feasible.”
 “I’m for it, obviously, not any secret,” Ray Humphrey, MHS head football coach, said. “I want lights for our kids. It just means a lot to the community. The school district came up with the biggest possible use, the most we are going to use is 70 nights.
“It’s not just for football. It’s very hard to watch the girls soccer team in the pitch dark in winter coming down the stairs. When you have to watch our kids get out at 1 p.m. it matters.”
“My kid has played football since he was six years old,” Point Dume resident Henry Holmes said. “I made wrong decision to live in Malibu. Scouts don’t come when there’s 100 people at a game.“
The council members had several questions for the consultants following public comment.
“We looked over athletic program [to get] the number of days,” MHS Principal Mark Kelly said, in response to a query about the number of proposed days. “Not all of those programs exist. If girls lacrosse doesn’t  come into existence we would not be able to fill all of those days.”
“Once you give a right its much harder to take it away,” said the city attorney. “It’s much easier to start small and give more later than it is to take it back.” 
A representative of the Musco lighting company stated that telescoping or hydraulic poles were not available in the US, and that 70-foot temporary lights were scarce and would have to be booked a year in advance.
“Is it possible to take lights down for summer?” asked Mayor Pro Tem Lou La Monte.
“It is possible to build the poles that way,” Marsh confirmed. “The change is the added cost to bring in equipment to do that,” the Musco representative stated, adding that the modification could cost an additional $12,000 per year.
“Besides concern about storing them I am much more concerned about $12,000 price tag,” school district financial officer Jan Maez said. “I don't have to go very far with the budget to know that we can’t [afford it].”
“I want them to come down,” Councilmember Joan House said, adding that the district can revisit the condition in a year.
The council voted 3-0 to approve 16 nights to 10:30 p.m and 41 nights to 7:30 p.m., and required the school to remove the crossbars and lighting fixtures from June 1 through Aug. 31.
The council also voted for a condition that prohibits amplification for practices and limited use to only school related practices and games.
“This has been very difficult on everyone here,” House said at 1:30 a.m., when the vote was concluded. “It’s an issue that people are very passionate about. There was a time when we had only seven million people in California. Changes always occur and are very difficult.”
One Malibu Park resident stormed out of the meeting shouting that he planned to challenge the decision in court.
Another told the council that the cost of hiring legal council represented a fraction of the loss in property value for area homeowners that he said would occur when the lights are installed.
Steve Uhring told the Malibu Surfside News after the meeting that the Malibu Township Council, on behalf of a number of area residents, is also planning a legal challenge.
“We believe we have a very strong case,” Uhring said, referring to the decision to bypass the planning commission.
“This plan needs to be sent back to planning,” Uhring said. “It didn’t get a full vetting.”
Lighting supporters say that they are optimistic that installation will be complete in time for the start of the fall semester.

Finalized Dewatering Plan Released as Next Stage of Lagoon Project Proceeds

• State Parks Spokesperson Says Work Continues to Be on Schedule

BY SUZANNE GULDIMANN

The long-awaited plan for the Malibu Lagoon Restoration and Enhancement Project has been released. The City of Malibu has posted the document on the city website: www.malibucity.org
State Parks Senior Biologist Suzanne Goode told the Malibu Surfside News that dewatering in the western portion of the lagoon is expected to begin next week. “We have to test it first,” Goode said. “We feel we are on schedule. The project is going very well. The dike is in place.
Goode explained that the earthen dike will provide access for visitors. I think it will be more pleasant,” Goode said. The current path is not ADA accessible, because of its surface, she explained, adding that the final access route will conform to all ADA specifications. “It will be completely ADA accessible,” Goode said.
“They’ve been removing fill. We’ve seen telephone poles, concrete, asphalt, we are starting to see native soils underneath. Our biologists were shocked that [the mud] was devoid of invertebrates. There were no clams, no tubeworms.”
Goode confirmed that animal relocation is ongoing. “We have biologists stationed around the brush piles. They have removed lizards and some rodents. The contractors are removing the brush slowly, nudging it first. They are trapping around the piles. It seems like there are sometimes more biologists in the field than contractors.”
Goode said that biologists have recovered and relocated six goby fish. Three of the fish were identified as arrow gobies, a non-threatened species, she said. One was positively ID’ed as the endangered tidewater goby. The other two were in their larval form and the biologists were reportedly unable to determine if they were arrow gobies or tidewater gobies, according to Goode.
Goode said the fish were placed in the main channel.
“They don’t dive into the mud when they are scared,” Goode said, refuting statements made by Georginne Bradley, the executive director of the non-profit Sea Save organization. “That’s simply false,” Goode said.
Goode also refuted project opponents’ concerns that the plan will transform the estuary, which is closed in summer and open in the winter, into a salt marsh. “It does not change that. We respect that,” she said.
Some plant material-including tulles, reeds and salt grass, according to Goode-has been salvaged. The project biologists have obtained permission to take plant cuttings in Mugu and Ballona wetlands to replant the disturbed area.
According to Goode, the only archeological find was a tool flake. She stated that more recent objects include a pellet gun, a purse containing a still-legible passport, and an assortment of children’s toys.
One thing they haven’t found and plan not to introduce is the invasive and destructive New Zealand mud snail. “All of the equipment is being steam cleaned,” Goode said.
Although the project appears to be moving forward rapidly, project opponents have not given up the fight. “There is something you can do now,” water quality activist Ted Vaill told the Malibu City Council on Monday. Vaill suggested that the city use the $25,000 earmarked for a study on the project that never took place to establish a reward fund for information on the cause of the recent lagoon berm breach that many observers claim was mechanical in nature. ”It clearly was man made,” Vaill said. “This reward could flush out a person. It’s your turn to act.”
Lagoon opponent Andy Lyon screened a video chronicling the lagoon demolition process set to the Counting Crows cover of the Joni Mitchell song “Big Yellow Taxi.” Members of the audience sang along with the refrain:  “They paved paradise and put up a parking lot.”
“I want to first say thank you to Lou [La Monte] and Laura [Rosenthal] for coming down to the Coastal Commission meeting,” Marcia Hanscom, whose Wetlands Defense Fund is one of three organizations pursuing legal action in an effort to stop the State Parks project “You promised and did. I am very disappointed that the others promised and didn’t.”
Hanscom asked the council to support her request to the Coastal Commission for a revocation of the project's permit. “There are still so many things wrong, but the heart of the lagoon is still there. They have not dug down into the ancient soils that are not fill. That are not baseball diamonds. You could stop it. There are many problems. You could help. You could ask for revocation or send a letter of support.”
The lagoon issue was not on the agenda and the council could not take action. However, Councilmember Lou La Monte stated that he planned to meet with project stakeholders meeting coming up next week, “to see if there are things we can do to mitigate,” he said. “Replace umbrellas with trees.”.
“I am here this evening to recommend a workshop on the importance of natural bacteria and the importance of kelp,” activist Wendi Werner told the council.
Werner, whose concern over the dewatering portion of the Malibu Lagoon plan has spread to encompass larger water quality issues told the council that Malibu is a microcosm of what is going on up and down state. “Current monitoring does not differentiate between natural bacteria and human,” Werner said.
“[Regional Water Quality and Control board] staff didn't want to listen to people and [hear how] having a natural bacteria exclusion effects us. Water quality problems with natural bacteria are not taken into consideration. They are imposing same restrictions on us as on urban areas. Help me to create a workshop to educate the community. Let the people know what these exclusions mean for us. It is a big deal,” she said.

SMMC Board and Council Contemplate Litigation over Municipal Skatepark Plans

• Time in Court Would Delay Project
 
BY BILL KOENEKER

Preparations for more discussion or possibly a showdown began this week as both the board of the Santa Monica Mountains Conservancy and the Malibu City Council met separately in closed sessions to talk about potential action in a courtroom over the municipality’s skatepark plans.
City Attorney Christi Hogin announced at the city council meeting Monday night the council took “no reportable action,” but did meet in a closed-door session “to discuss the threat of pending litigation.”
The council agenda item was tagged as “Anticipated litigation…dispute with the Santa Monica Mountains Conservancy over the deed restrictions for the Bluffs Park parking lot and the proposed temporary skate park.”
When asked after the executive session if she could elaborate on the closed meeting, Hogin said she was not able to talk about it any further.
Conservancy officials contend they own parking and use deed restrictions at Bluffs Park where the city wants to build first a temporary skatepark and construct a new “world class” facility.
The construction of even such a temporary skatepark at Bluffs Park may be stalled for much longer than anticipated by Malibu municipal officials if the two entities cannot reach some kind of understanding or a settlement and must proceed to court.
However, there seemed to be a glimmer of hope for municipal officials after the board of Santa Monica Mountains Conservancy met to have a discussion with counsel in closed session also on Monday night “regarding consideration of initiation of litigation: Santa Monica Mountains Conservancy v. City of Malibu regarding enforcement of parking and use deed restrictions at Bluffs Park.”        
SMMC spokesperson Dash Stolarz confirmed the board met in closed session.
Quoting the board’s secretary, the  Conservancy spokesperson said, “The report out of that meeting was ‘instructions were given to negotiators.’”
SMMC attorney Laurie Collins, who was not available for comment this week, had  previously said the reason for the meeting was to keep the board aware of what is going on at Bluffs Park.
“When the city acquired the property, it agreed to certain uses and deed restrictions. The plans for a skatepark raises several issues for the Conservancy,” said Collins, who said the agenda item will keep the board informed and keeps all options open.
Collins said because it is a closed-door matter, she could not discuss it in any further detail.
Currently, the city’s plans call for the interim skatepark to be located in an existing parking lot and the conversion of vacant land into an auxiliary temporary public parking lot, according to city officials.
The permitting process has been continued since May when the city’s planning commissioners were told additional time was needed for the staff to work with the Conservancy to resolve issues regarding the SMMC’s deeded use of the existing parking lot.
At that time Malibu officials seemed hopeful the matter could be easily resolved.
The city’s Planning Technician, Joe Lezama, at the time, said. “We hope to resolve the matter at that time and get the matter back on the agenda.”
The action comes after the city council approved a license agreement for parking to allow a temporary public parking lot on privately owned land known as the Crummer site, named after a former owner of the property.
However, until a recent letter was submitted from the Conservancy, there was apparently no knowledge about a SMMC easement.
Enthusiasts and municipal officials have pointed to Bluffs Park as the ideal for relocating the skatepark, but had been initially thwarted because of a lack of adequate parking, according to city planners.
“The feasibility of relocating to this site is dependent on the use of the privately owned property adjacent to Malibu Bluffs Park to offset the loss of the parking spaces,” wrote Parks and Recreation Director Bob Stallings, in a memo to the city council.
The agreement provides the city use of the property with the understanding that the landowner has plans underway to develop the land for single-family homes. Story poles on the site have shown what his tentative plans are.
A scoping session on an Environmental Impact Report was held recently for the proposed five-home subdivision.
The parking lot agreement, according to Stallings, contemplates a broad scope of indemnities and liabilities the city agrees to undertake.

County Coroner Rules that Guido’s Employee Hemorrhaged to Death

• Major Lung Infection Combined with Aftereffects of Carlos Ivan Rodas’ Prior Case of Tuberculosis Proved Fatal

BY ANNE SOBLE

Last week, the Los Angeles County Department of Coroner issued a statement that the cause of death for Carlos Ivan Rodas, the 32-year-old Guido’s kitchen employee who collapsed in a pool of blood outside the restaurant on March 18, was determined to be “hemorrhage from invasive pulmonary aspergillosis and sequelae of cavitary tuberculosis (treated).”
Invasive pulmonary aspergillosis is a serious lung infection by the pervasive aspergillosis fungus that can affect any human organ. Medical descriptions note that people with weakened lungs and compromised immune systems are particularly susceptible to this kind of infection, which is said to not be contagious.
Sequelae of tuberculosis are physical consequences or side effects of Rodas having had the disease, which the DOC report indicates had been successfully treated. In Rodas’ case, there was extensive lung scarring from the tuberculosis in which the fungus could readily take hold.
Dr. David Dassey, the deputy chief of the Los Angeles County Department of Health Services Acute Communicable Disease Control (ACDC) Unit, said Rodas died when a blood vessel burst and filled his lungs with blood that hemorrhaged so dramatically that those who cursorily looked at his body or just saw the large quantity of blood appeared to think the man might have been shot or brutally assaulted.
As a result, Los Angeles County Sheriff’s Department personnel first issued media reports to the effect that Rodas was shot, which led to a “murder in Malibu ” media maelstrom.
This initial report then was inexplicably changed to a scenario that Rodas had been severely beaten by multiple assailants. Both of these LASD statements were issued before anyone actually inspected the man’s body.
Not until the DOC examined the remains were these errors corrected and the issue of possible medical causation given consideration. The initial LASD confusion prompted a rebuke by City of Malibu officials and no small amount of embarrassment for the department, which sent representatives to apologize at a subsequent city council meeting.
The DOC deferred a ruling on the cause of Rodas’ death for over three months while intensive lab work and neuropathological analysis was being conducted, including brain tissue analysis.
The Guido’s employee’s manner of death is technically categorized as natural because, as the report states, “No trauma was noted and foul play is not suspected.”
Dassey said DOC and ACDC have a standing arrangement that all “unusual deaths” are flagged and referred to his unit, to which Rodas’ tuberculosis had already been reported—a standard public health procedure. The epidemiologist said Rodas had been treated for the disease and cleared before he became employed at Guido’s.
The ACDC deputy chief indicated Rodas’ TB was no longer active and his sputum tests were negative when he began working in the restaurant kitchen, even if his medical treatment was still being continued as part of a follow-up program.
Dassey said tuberculosis, an airborne virus, “requires intimate contact, such as being a member of the same household” for transmission.
He stressed there “never was a contagion issue” with Rodas while he worked at Guido’s. Rodas’ post-disease tests continued to be negative, as was post-mortem cultures for the disease.
The DOC statement also noted that no prescription or illicit drugs were detected in Rodas’ system at the time of his death.
The department anticipates that the final coroner’s report will be available for release within two weeks. The News will follow up with any additional information when the final report becomes available.

Council Affirms Intention to Form Community Facilities District for Sewer

• Will Commercial Property Owners Paying into the Process Provide Legal Basis to Force City’s Hand?
 BY BILL KOENEKER

It was past the midnight hour when the Malibu City Council this week unanimously adopted a resolution declaring its intention to establish a Community Facilities District for a Civic Center sewer plan.
At a previous session, the council approved agreements with a bond counsel, legal specialists and banking and underwriting officers for financing a CFD for the proposed Civic Center wastewater treatment system.
At this week’s meeting, the council adopted the resolution, which language includes  “to incur bonded indebtedness within such a CFD to finance the design of the proposed Civic Center wastewater treatment plant phase one.”
Council members were told another $6 million is needed to complete preliminary work on the design phase of the project including an Environmental Impact Report.
Assistant City Manager Reva Feldman told the council what they approved early Tuesday morning did not authorize the issuance of any type of indebtedness nor the formation of a CFD.
“Final approval of a CFD will require additional city council action and a vote by properties within the proposed district and will be brought forward to council at a later date,” Feldman said.
This week’s action does not form the district, but declares the city’s intention to do so and will declare what the city’s intentions to do with the CFD. To use the CFD “to incur bonded indebtedness within such CFD to finance the design of the Civic Center Wastewater Treatment Plant Phase One.”
Feldman told council members the consultants had already helped determine the special tax that will be levied on the commercial properties in the CFD and mentioned city properties cannot be a part of a CFD.
The CFD, if it is approved by the commercial property owners’ votes, will allow in 90 days after the vote, the CFD to sell municipal bonds. At that point the city would receive back the money already invested by the municipality.
City officials indicated the properties in such a district would include at this time only the commercial properties in phase one.
Council members had previously declared their intentions to have the commercial property owners start paying for the costs of the design of the wastewater system since they will be the beneficiaries. This is the formal process to do this.
Feldman said the hope of municipal officials is to have the CFD election in August.
Later a benefits assessment district would be established. “The city can be part of the benefits assessment district,” Feldman said.
John Mazza, representing the Malibu Township Council, urged the council to reverse direction. “It is a big mistake to drop efforts [demonstrating] that septics work,” he said.
 Mazza said there was still $1.5 million the city has not accounted for being returned and must be a gift to the CFD.
Julie Eamer said the reason the city was formed was to stop the sewers. “Why do we have to go down this path?” she asked.
Councilmember Lou La Monte wanted to know what would happen to the $1.5 million mentioned by Mazza and was told by City Manager Jim Thorsen the money would eventually be returned to the city. Thorsen said the estimate for the total cost of the wastewater plant is currently considered to be $20 to $30 million.
Thorsen was also asked if the CFD did not get authorized what would happen. He said the design would stop and the Regional Board could assert their authority.
Council members cited the history of how the municipality got to this point with the Regional Water Quality Control Board as the enemy
“I don’t want to demonize the Regional Water Quality Control board, but they have never lost on this,” said Councilmember John Sibert.
Councilmember Joan House said, “If we could walk away form this we would. But we have been put in harm’s way.”
Councilmember Skylar Peak did not join the conversation. When the motion was made to approve the staff recommendation, the council voted unanimously.
In 2009, a previous council approved $2.6 million for an agreement with RMC Water and Environment to provide engineering and design services..
Of the total approved $102,800 was used toward stormwater design and engineering services for Legacy Park leaving over $2.5 million for the design and engineering of a wastewater treatment facility.
Feldman, in her staff report, noted the design costs have increased because of the apparent dispersal process being considered—lower aquifer injection.
“All of the design and engineering work that has been completed to date indicates that the city will be able to proceed with a lower aquifer injection process. Exploratory test well drilling and groundwater extraction was successfully completed. It is anticipated that this assessment will be successful and allow the city to continue the project by constructing and testing a full-size well, the installation of six adjacent monitoring wells, and the completion of a final model,” Feldman wrote, in her memo to council members. That was never discussed by the council
What Feldman told the council was the total of funds needed is $6 million including final design and engineering for $1.5 million and additional $1.9 million will be needed for the development of the EIR, final construction drawings, bid documents and all permits bringing the total to $6 million. The funds provided by the city are expected to be reimbursed by the CFD. 
Given the late hour, it was almost 2 a.m. when the agenda item to allocate $1.5 million to RMC Water and Environment to provide engineering and design services for the wastewater component was continued.
“I don’t see any reason to spend city money on it,” said Peak.
The amount was not included in the adopted budget for fiscal year 2011-2012.
Public Works Director Bob Brager, in a memo to council members, explained funding did not include design and engineering for a completely, new and different dispersal process (lower aquifer injection).
“In order for the city to remain in compliance with the terms of the MOU, and to proceed with the design of the overall centralized wastewater treatment facility, additional funds are needed,” he wrote.
The council decided they could wait until a later date in the summer before they would approve the allocation of another $1.5 million.
Brager, who did not speak to the council, noted in his memo the stop gap funds were being requested for the approval of the $1.5 million in order to keep on schedule and allow for enough time for the CFD to fully fund the project design.
Thorsen said there was some leeway if the city got behind by a month or so, but explained to council members beyond a short time frame more delays could jeopardize the process.
Members decided instead to see what happened to the CFD before they allocated any more money from city coffers.

Publisher’s Notebook

• ‘Where Have All the (Malibu Lagoon) Wildlife Gone?’ •

BY ANNE SOBLE

The Malibu Lagoon has been the subject of some of this newspaper’s most beautiful wildlife front covers. Whether its inhabitants were four-footed or winged, the lagoon provided an opportunity for close contact with nature that was accessible to people of all ages and physical abilities.
Not surprisingly, one of my personal concerns when it was announced that part of the lagoon would be dramatically altered was how wildlife would be handled to assure the least amount of stress and mortality. When I inquired about procedures to ensure the wildlife survival as the planned construction work progressed, I was assured that trapping and relocation were carefully thought out.
Still, I couldn’t shake wondering whether this meant animals were all sent an official memo so they could pack up and leave before the work crews came. In keeping with the Disney-esque design of the new lagoon structures, were we supposed to envision all of the critters sitting around in a circle discussing evacuation strategy while “Zip-a-Dee-Doo-Dah” played in the background?
I was again less than assured when I watched volunteers play a game of “Hold that Lizard” that reminded me of giddy grade-schoolers at a grunion run. Those of us who have to regularly remove lizards from our living rooms may do a better job of netting them and putting them outside safely than appeared to be the case that day.
I was perturbed when I asked the senior environmental scientist and project spokesperson for California State Parks if I could accompany a relocation sortie from the lagoon to public lands where animals were being taken.
“We would rather not do that,” was the terse reply, accompanied by even more assurances that all of the evicted were being moved to the same exact habitat they had. But wasn’t Malibu Lagoon its own unique ecosystem?
Imagine the additional surprise when I asked for a catch count and was told it was “50 voles and about 100 lizards.” That was it? No other animals? No mammals? It seemed that even the weasel on the cover of The News two weeks ago, the one that lived under the third bridge, was able to elude capture despite repeated attempts.
As for the endangered tidewater gobies, the State Parks rep said only one was found, which was placed over the barrier into the main channel. Three other fish were found that “more than likely were common arrow gobies.” Two larval gobies were discovered but it was uncertain which species they are, and they were placed in the main channel.
The SES said the concerns for the ducks expressed on last week’s cover were unnecessary. There is supposedly a biologist monitoring work at all times to protect them, but no monitor is obvious in the photo. If work crews are paying attention to anything, it’s to the photographer.
Project critics have stated that public access trails will be closed during construction but SES counters that access will be provided by an earthen dam, however it is not ADA compliant. Apparently access for the disabled has not been a state concern at the lagoon, as neither were the three bridges, yet disabled visitors, even those in wheelchairs, were able to cross them.
If humans don’t like the provisions State Parks is making for them, they can speak up. I only can hope that all the wildlife that I was used to seeing and photographing at the lagoon also had viable options, but it’s not certain. Will we ever have an accurate count of what once lived there and how it is now faring? Why am I not optimistic?

City Adjusts Consultant’s Tab on Hotel Plan EIR

• Project Applicant Is Required to Reimburse Malibu for the Cost

BY BILL KOENEKER

Without discussion or comment, the Malibu City Council this week approved an amendment to an agreement with the Environmental Impact Report consultant for the Rancho Malibu hotel project.
Persuaded by public comment, the council had insisted that the consultant do a full EIR rather than the supplemental EIR proposed by the applicant Richard Weintraub, who will reimburse the city for all of those costs.
The cost for the preparation of the supplemental EIR was figured at $158,786.
“In order to complete the revised scope of work as directed by the council, the budget for the Rancho Malibu Hotel project EIR has increased. An additional 30 percent is added to the total project budget to cover costs for city staff management and administration which is also paid by the applicant,” wrote Senior Planner Stephanie Danner, in a memo to city council members.
The new costs include an additional charge by the EIR consultant of $14, 198 and an additional $4.259 for city administration fees bringing the current costs to $224,879.
The proposal calls for construction of a 146-room luxury hotel on a 27.8-acre vacant parcel located on the northeast corner of Malibu Canyon Road and Pacific Coast Highway.
Plans consist of about 274,936 square feet of development (gross square footage) both for the main hotel building and the 21 detached two-story casitas which house the majority of hotel rooms. About another 150,000 square feet is underground and is not counted by the city as developed space.
According to the latest project description, the hotel will include such facilities as retail shops, hotel restaurant, sundries store, lobby bar, library, ballroom, meeting rooms, fitness center and spa, pool, pool cabanas and lawns.
The plans call for drafting a tract map to create an airspace subdivision to allow each hotel room as well as two retail spaces, to be sold individually as commercial condominiums.
The owner of each unit will be limited to staying in the unit no more than 180 days per calendar year with consecutive stays limited to no more than 30 days.
When the unit owner is not staying at the hotel, the unit will be placed into the normal pool of hotel rooms to be rented out to the public.
Regardless of whether the owner or hotel guest is staying in the room, applicable transient occupancy taxes will be charged per night, according to the applicant.
The project includes the installation of an on site wastewater treatment system facility to serve the project.  The Regional Water Quality Control Board has exempted the proposed project from the Civic Center septic prohibition and has indicated it will  allow it to move forward with an individual OWTS facility.
One of the buildings is comprised of a 82,036 square foot basement, which includes the spa and fitness center and a first and second floor includes the lobby area, retail, restaurant, banquet and meeting facilities, according to planning officials.
The guestrooms and suites are located within the casita-type buildings totaling 133,873 square feet. Two swimming pools and 543 parking spaces are provided. The 165, 259 square foot parking structure will house the majority of the parking.
That is a total of 440,560 square feet of building space.
There is a 10-page synopsis, prepared by a city planner, of the history of the project as it has wended its way through the approval process since 1984.
The staff has determined that the Conditional Use Permit is still valid, but the site plan review has expired and a new SPR would be required to move forward on the project.
Currently, the project has a coastal permit issued by the California Coastal Commission.

Wednesday, June 20, 2012

Lagoon Project Opponents Vow to Continue Their Fight to Halt Plan

• Chorus of Criticism Continues to Swell as Community Absorbs Full Extent of Demolition at Site

BY SUZANNE GULDIMANN

Critics of State Parks' Malibu Lagoon Restoration and Enhancement plan blasted the parks department, California Coastal Commission staff, and the project's contractors this week for allowing bulldozing to commence without a final dewatering plan or a public access plan in place.
City of Malibu Planning Director Joyce Parker-Boyzlinski confirmed on Tuesday that the city has still not yet received the project’s final dewatering plan. 
Bulldozers began clearing vegetation last week. On Friday, seven mature sycamore trees, some of which reportedly predated the earlier restoration in the 1980s, were felled and a massive earthen dam was installed to separate the construction zone from the main channel.
On Monday, all of the vegetation in the western portion of the park had been cleared, including a willow woodland and portion of landscaping near the parking lot that was part of the first phase of the project. Several small areas of tule reeds where birds are reportedly still nesting were the only remaining traces of green remaining at the close of work on Monday. Work appeared to have halted on Tuesday, when the Malibu Surfside News went to press.
Project critics state that bulldozers were used in the main channel on Friday and point to tire tracks that reveal where heavy equipment repeatedly crossed through the channels.
 State Parks’ representatives have repeatedly issued assurances that no work would be done in the channels until the dewatering plan was finalized and that no construction of any type is permitted in the main channel.
Marcia Hanscom, executive director of the Wetlands Defense Fund, one of three organizations currently seeking to challenge the project in court, submitted a permit revocation request to the Coastal Commission on Friday.
In an open letter to CCC Executive Director Charles Lester on Tuesday she asked why there has been no response.
“When will a ruling be given as to whether or not our request for revocation hearing has been accepted?” the letter asks. 'When [previous executive director] Peter Douglas accepted previous requests for other project(s), he placed the project(s) on hold and immediately scheduled a hearing(s),” Hanscom wrote.  “I know the Coastal Commission is entwined with this project in ways that are very challenging politically, but that sort of circumstance rarely stopped Peter from doing the right thing. 
“With all due respect, Dr. Lester, we are getting no responses from the Ventura office [of the CCC] Hanscom wrote. “In fact, the only government official providing any response has been the city attorney from Malibu. How did this situation get so upside down?”
Hanscom told the News on Tuesday that Steve Hoye of Access for All, which is also currently involved in the project appeal, has reportedly asked repeatedly for the public access plan, but says that he was only able to obtain a partial plan. Hoye has expressed concern that the materials he obtained contain “no engineering, no explanations of how a sand bag dam became a 10-foot-wide solid soil dam, which was not approved by the Coastal Commission. 
“They now are turning [the dam] into a public access trail because,  as we predicted,  all current public access trails will be closed during construction- even though the Commission was repeatedly assured this would not be the case,” Hanscom said.  And there is no other analysis of this new part of the plan which at least required an amendment, and more appropriately and legally- a new hearing on this entire permit.
“There is so much wrong with this project,” Hanscom told The News on Tuesday. “The more work they do the more revealing it is how wrong and inaccurate the premises are.”  “Nothing in terms of wetland restoration on the Southern California coast resembles this.  It is a complete demolition with a Disneyland-type non-scientific attempt to re-make something that does not exist and never has there.  Malibu Lagoon is not a salt marsh.  Never has been.  Never will be. No matter how many times the landscape architect team of the Bay Foundation try to make it so.”
Urban Wildlands Director and Los Angeles Audubon Society board president Travis Longcore, who joined the opposition to the project last week, also criticized the plan to transform the estuary into a salt marsh—a type of ecosystem that he describes as a “closing estuary.”
Project opponents provided photographic evidence this week that the lagoon, prior to being demolished, was home to the South Coast marsh vole, a California Species of Special Concern, and a hunting ground for the white-tailed kite, which is also a  species with special protections.
Some opponents maintain that it is not too late to stop the project and that areas of critical habitat for animals like the South Coast marsh vole, which has remained mostly undisturbed due to nesting birds, can still be preserved.

Council Seeks to Establish Community Facilities District for Sewer

• Members Are Expected to Approve $1.5 Million Contract with Engineering and Design Company

BY BILL KOENEKER


The Malibu City Council is set to adopt a resolution declaring its intention to establish a Community Facilities District at its meeting next week.
At the same time, the council is poised to approve an agreement with RMC Water and Environment in the amount of $1.5 million to provide engineering and design services for the wastewater component of what is still being called the Malibu Civic Center Integrated Water Quality Management Plan.
The amount was not included in the adopted budget for fiscal year 2011-2012.
Public Works Director Bob Brager, in a memo to council members, states funding did not include design and engineering for a completely, new and different dispersal process (lower aquifer injection).
“In order for the city to remain in compliance with the terms of the MOU, and to proceed with the design of the overall centralized wastewater treatment facility, additional funds are needed,” he wrote.
At a previous session, the council approved agreements with a bond counsel, legal specialists and banking and underwriting officers for financing a CFD for the proposed Civic Center wastewater treatment system.
At next week’s meeting, the council is also expected to adopt a resolution to incur “bonded indebtedness within such a CFD to finance the design of the proposed Civic Center wastewater treatment plant phase one.”
Council members were previously told another $6 million is needed to complete preliminary work on the design phase of the project including an Environmental Impact Report.
“I agree this is a good idea,” Mayor Laura Rosenthal had said about creating and using a CFD for paying for the sewer plan designs. “This is an innovative way to pay for this not by the city. I understand the frustration about [how this] will affect development in the Civic Center.”
Councilmember Lou La Monte had said, “Everybody up here was opposed to this project. Ultimately everybody was against us. This is what this is about, money. We need to meet the deadline for design. I don't think we should invest half of our own reserves. The people benefiting from this should pay. We are obligated to the [Memo of Understanding with the Los Angeles Regional Water Quality Control Board].”
Assistant City Manager Reva Feldman, told council members the agreements they approved do not authorize the issuance of any type of indebtedness or the formation of a CFD.
“Final approval of a CFD will require additional city council action and a vote by properties within the proposed district and will be brought forward to council at a later date,” Feldman said.
Next week’s action does not form the district, but declares the city's intention to do so and will declare what the city's intentions to do with the CFD. To use the CFD “to incur bonded indebtedness within such CFD to finance the design of the Civic Center Wastewater Treatment Plant Phase One.”
City officials indicated the properties in such a district would include at this time only the commercial properties in phase one
However, there were protests from some homeowners who said they wanted “to be extracted from any district.”
Serra Retreat homeowner Ozzie Silna cautioned the city on how it proceeded. “We will be taking legal action against any and everybody on behalf of our self-interest,” he said.
In 2009, a previous council approved $2.6 million for an agreement with RMC Water and Environment to provide engineering and design services for what is called the Malibu Civic Center Integrated Water Quality Management Plan.
Of the total approved, $102,800 was used toward stormwater design and engineering services for Legacy Park leaving over $2.5 million for the design and engineering of a wastewater treatment facility.
City Manager Jim Thorsen talked about the need for meeting the MOU deadline, but did not talk about the design specifics.
However, Feldman, in her staff report, noted the design costs have increased because of the apparent dispersal process being considered, lower aquifer injection.
“All of the design and engineering work that has been completed to date indicates that the city will be able to proceed with a lower aquifer injection process. Exploratory test well drilling and groundwater extraction was successfully completed. It is anticipated that this assessment will be successful and allow the city to continue the project by constructing and testing a full-size well, the installation of six adjacent monitoring wells, and the completion of a final model,” Feldman wrote, in her memo to council members.
What Feldman told the council was the total of funds needed is $6 million, including final design and engineering for $1.5 million and an additional $1.9 million will be needed for the development of the EIR, final construction drawings, bid documents and all permits, bringing the total to $6 million. The funds provided by the city are expected to be reimbursed by the CFD. 

Malibu’s Two Marijuana Dispensaries Opt to Close Their Doors Preemptively

• Feds Issue Letters Threatening Prosecution and Forfeiture

BY BILL KOENEKER

There appear to be two casualties in Malibu in the war against pot pharmacies being waged by the U.S. Attorney’s office.
Both medical marijuana dispensaries are shutting their doors this week, according to individuals who answered their phones on Tuesday morning.
“We will be gone by Tuesday or Wednesday,” said ostensible store personnel, who declined to give their names, at both facilities.
The U.S, Attorney recently announced federal enforcement actions against commercial marijuana operations with warning letters and civil lawsuits targeting storefronts in Los Angeles County, including Malibu’s two medical marijuana pharmacies.
The two stores are the only facilities in Malibu. The city, by its own ordinance, allowed only two permits.
The permit required by the city to operate a pot pharmacy required a list of conditions the storefront must comply with and a hearing before the planning commission to obtain a Conditional Use Permit.
The city apparently derived a certain amount of sales taxes from the two stores’ operations which will be lost, but that figure was unavailable at press time.
According to a press release issued by the U.S. Attorney’s office of the Central District of California, which includes Los Angeles County, “Federal authorities filed two asset forfeiture lawsuits against properties housing three marijuana stores in Santa Fe Springs and sent warning letters to people associated with another 34 illegal marijuana operations in Los Angeles County. The warning letters and lawsuits target all known marijuana stores in the communities of Santa Fe Springs, Whittier, South El Monte, La Mirada, Diamond Bar, Artesia, Paramount, South Gate, City of Commerce, Agoura Hills and Malibu.”
A subsequent press release indicated six individuals associated with an Inland Empire marijuana operation that ran three stores were arrested on federal drug trafficking charges.
Two of the three stores were shuttered, but a third remained open after federal authorities executed two separate search warrants, filed an asset forfeiture lawsuit against the property housing the remaining open store and filed a second asset forfeiture lawsuit.
The six defendants were also indicted by a grand jury and charged with conspiracy to manufacture and to possess with intent to distribute marijuana. The indictment also charges all six with possession with intent to distribute marijuana.
These two charges each carry a mandatory minimum sentence of 10 years in federal prison and a maximum possible sentence of life in prison. Additionally, each defendant is named in at least one count of maintaining a drug-involved premises, a charge that carries a statutory maximum sentence of 20 years in prison, according to the U.S. Attorney’s press release.
The warning letters were mailed out recently to the property owners and operators of the 34 marijuana stores “that are either currently operating or were recently closed.”
“The warning letters give the operators and landlords 14 days to come into compliance with federal law or risk potential civil or criminal actions,” the press release goes on to caution.
The U.S. Attorney’s office reports that a total of 12 asset forfeiture complaints have been filed. “Three of those actions have been resolved with the closure of the marijuana stores and court-approved consent decrees in which property owners agreed that they would no longer rent to people associated with illegal marijuana operations or the property would be subject to an immediate forfeiture to the government.
“Federal enforcement actions have now targeted more than 220 marijuana stores and grows in the Central District of California. The majority of these stores are now closed, are the subject of eviction proceedings by landlords or have been the subject of additional federal enforcement actions such as search warrants.”

Crummer EIR Scope Session Draws Crowd

• Questions Are Raised about Site Adjacent to Malibu Bluffs Park

BY BILL KOENEKER

An Environmental Impact Report scoping meeting for the so-called Crummer site subdivision took place recently at Malibu City Hall.
The Crummer site, named for a former owner of the property, is located on the bluffs near Bluffs Park where story poles have been located for some time.
The poles are utilized to show the mass of the five houses planned for the site and the height of the two-story structures on the ridgeline, which is visible from many areas of the Civic Center and Pacific Coast Highway.
Almost 100 people were in attendance to hear about the project and comment.
Voices were heard from the Malibu Country Estates and Malibu Knolls from individuals who said the cluster of residential buildings would severely impact their view sheds.
Malibu Road property owner Joan Lavine, in written comments, indicated the story poles are visible from her home “affecting the ridgeline of the Malibu Bluffs.”
Malibu Knolls resident Steve Uhring, as he has at the other EIR scoping sessions, emphasized the important of accurate and current traffic counts.
Some audience members appeared taken aback when the EIR consultant seemed surprised that summer beach counts could vary tremendously from traffic counts the rest of the year.
Lavine, in her written comments, also indicated that after looking over the geotechnical report, the report shows three fault lines.
“I remember that a proposed GM facility was cancelled due to these fault lines and potential for catastrophic failure in a earthquake,” she added.
The project applicant Robert Gold wants to subdivide the 24-acre property into seven individual parcels for the development of five new single-family homes and accessory structures on the property located adjacent to the city-owned Bluffs Park.
Plans call for a new private, gated road with a guardhouse and dedication of approximately 1.74 acres of land to the City of Malibu for active and passive recreational use.
Much like every other meeting, traffic congestion because of all of the other projects being considered at the same time were utmost on everyone’s mind.
“Specifically, I ask that the scoping and EIR consider the impact of up to 220 SMC students and faculty…the proposed [Whole Foods Market]…Perhaps several hundreds of people a day added from a hotel at PCH, Pepperdine’s construction of a game forum across from the Crummer site. Gridlock on PCH most of the day appears to be a likely outcome. It is not only unpleasant. It may prevent safe evacuation from the local area in an emergency and is responsible for more traffic accidents,” Lavine concluded.
Lots one through five would be developed with single-family residences and various accessory structures.
Each residence would be two-stories high with a maximum height of 28 feet and would include a basement, attached garage, swimming pool and spa.
Lot five would be developed with a private gated street, a gatehouse, an onsite wastewater treatment system, landscaping and open space to be owned and maintained by the homeowners association.
According to planners, the OWTS will be designed with a stub-out box to allow for possible connection to a municipal wastewater treatment in the Civic Center area in the future.
New water service will be provided to the project site by the Los Angeles County Waterworks District 29 by way of a new 10-inch water line running approximately 3200 linear feet from the intersection of John Tyler and to Malibu Canyon Road connecting to the project site at the northwestern corner of Lot 6, according to a public notice.
The project includes the dedication of land to the city to expand Malibu Bluffs Park by the 1.74 acres to the east and northeast. The recreation component has yet to be designed and would not be developed as part of the housing subdivision, according to city officials.
Currently, municipal plans call for using the site for a parking lot for the temporary skate park. The developer and the city have signed an agreement.
For purposes of the EIR, the notice indicates several foreseeable alternative uses for the recreational area will be evaluated as part of the EIR.
The recreational area, as an example, could be used as a baseball or soccer field and a portion of Lot 7 could also be developed with a parking lot resulting in 50 new parking spaces for Bluffs Park, a city-owned maintenance shed and passive recreation uses such as public sitting area and picnic tables.

911 Call by Malibu Mechanic Helps Save Kidnapping Victim

BY SUZANNE GULDIMANN
 
A gas station mechanic at the now defunct Arco station on the corner of PCH and Heathercliff Road, reportedly played a key role in the rescue of a 17-year-old kidnap victim, on  June 12.
The victim signaled the mechanic and several bystanders that she was in distress, when her alleged kidnapper made her pull into the station for gas.
Los Angeles County Sheriff’s Department PIO Nicole Nishida confirmed that Alexis Fantauzzi, 28, was arrested in Malibu, and booked for multiple felonies, including kidnapping; kidnapping with the intent to commit another crime, annoy or molest a child; carjacking; vandalism; and attempting to escape arrest.
The victim’s ordeal began while she was on her way to school. Fantauzzi, described as a transient, reportedly forced his way into her vehicle while she was stopped at the traffic signal at Webb Way on PCH. According to Nishida, Fantauzzi drove around Malibu for several hours with the victim in the vehicle before he ordered her to pull into the service station where she was finally able to signal that she needed help.
Sheriff’s deputies from the Lost Hills Station were able to quickly locate and intercept the vehicle and rescue the victim.
The vandalism charge is reportedly related to damage done to the vehicle by Fantauzzi during the incident.
He is due to appear in court at the LAX Courthouse on June 28.
The incident happened on the last day the ARCO station was open for business. The station has been sold to a new company and the mechanics’ shop is now closed.
“It was pure good luck that things worked out the way they did,” one witness told the Malibu Surfside News.

Publisher’s Notebook

• Some Stories Never Die •

BY ANNE SOBLE

The saga of the Feb. 21, 2006 crash of the red Ferrari Enzo—one of only 400 built—on Pacific Coast Highway in western Malibu will likely live on forever. Though Malibu has had its share of spectacular PCH crashes with more deadly results, this one is the stuff of mythology.
All it takes to resurrect the colorful story in the media is anything remotely to do with its Runyunesque cast of characters, no matter how insignificant. This includes the Ferrari driver and his passenger who both managed to survive the 150 mph crash despite the virtual disintegration of the vehicle. As if that wasn’t enough spectacle, the duo were able to bluff their way into departing from the crash scene without being taken into custody or cited.
The driver of the ill-fated racing icon—Bo Stefan Eriksson—ultimately served three years in a California prison for embezzlement involving the $1 million-plus Enzo and other vehicles, DUI and other charges. No sooner was he deported from the United States than he got into trouble in his native Sweden and was back in the slammer on similar charges. No one appears willing to make book that Eriksson will not repeat this sequence of events in the future.
The now determined to be fictional German named “Dietrich,” who Eriksson attempted to place at the wheel of the Ferrari, may have been a figment, but there was a real-life passenger in the totaled racing car who was later identified as Irish-born Trevor Karney. Karney appears to have the same propensity for getting into trouble as Eriksson.
Arrested after a year-and-a-half manhunt, Karney pleaded nolo contendere, or no contest, to a charge of giving false information about the crash, did a brief jail stint, and then left the country. He remained under the radar until last week when he was arrested in Beverly Hills and charged by the DA’s office with felony evasion of law enforcement, misdemeanor counts of driving without a valid license, DUI, and possible U.S. reentry violations.
Karney was subsequently arraigned in Beverly Hills Superior Court where he pleaded not guilty. His preliminary hearing is set for next week.
Eriksson and Karney have assumed a peculiar cult figure status, especially among some of the racing car crowd, but Karney’s new woes may remind him that law enforcement is not too fond of those who make it look even remotely gullible. 
However, the myth will continue to feed off itself and its devotees will eagerly await the next interesting escapade.

Student Files Million-Dollar Claim against SMMUSD

• Alleges She Was Hurt and Humiliated

BY BILL KOENEKER

Dionne Evans, a 15-year-old ninth grade student at Malibu High School who reported she was slapped by her teacher in front of her classmates, has filed a claim with the Santa Monica-Malibu Unified School District through her attorney for over $1 million in damages.
Beverly Hills attorney Donald Karpel acknowledged a claim was made to the school district.
“We did file a notice of claim,” said Karpel, which gives the school district 45 days to respond. “Yes, it is for over a million dollars, but you have to put some number on the claim form. That is not necessarily the number we will use [if it goes to trial],” he added.
“We actually just received the claim today,” said school district Risk Manager Gary Bradbury. “The claim will be reviewed by our attorneys and the board will be informed of the claim if they have not already read about it.”
The story went viral not long after it became public.
Karpel confirmed there is a criminal investigation into the incident, which is going on at the same time.
The incident has been described in some media as the teacher modeling her behavior after a character in the movie “Bridesmaids.”
 “[The character] tries to slap some sense into the other character,” said Karpel, “but that was not a pat on the cheek [in the movie as described by the district].”
Karpel was asked if there is any racial component to the incident.  Evans is African-American. He said, “We have gotten letters from some of the students who expressed concern about the teacher’s motives.”

State Bill to Curb Local Government Land Use Power Killed in Committee

• If AB 2226 Was Supposed to Be a Special Interest Favor— Measure May Have Backfired Big Time

BY ANNE SOBLE

Assembly Bill 2226, which seeks to advance changes to the state Administrative Procedure Act, failed to clear the Senate Judiciary Committee on Tuesday by a 3–2 vote. Although committee votes are not finalized until the next day, the measure is effectively defeated.
The bill is an attempt to require state, county, and city agencies to accept as fact that the person holding the deed to a piece of property is the owner.
The wording of the key proposed changes is that “a presumption exists that the owner of the legal title to property is presumed to be the owner of the full beneficial title” and “this bill would apply in any proceeding before a city, county, or city and county, if the title to, or ownership of, property is in question.”
Most of the media headlines bannered the potential for AB 2226 to enable David Evans, a musician who performs as The Edge, to eliminate one of several issues that resulted in the California Coastal Commission in June 2011 constraining major development he wants to do on his Malibu property—titular ownership and actual control of the land.
When the CCC ruled against Evans, his legion of attorneys and consultants stated that he was not going to give up on the project.
But if the bill’s author, Assemblyman Ben Hueso of San Diego, a Democrat, wants to do something to benefit Evans, which he has not publicly stated that he does, AB 2226 has major implications for business and government throughout the state that exceed any singular project, even one of Evans’ magnitude.
The formal sponsor of the bill is the Sacramento-based California Business Properties Association, which describes itself as “the recognized voice of the commercial, industrial, and retail real estate industries in California representing over 11,000 companies.”
Hueso had to know he would face CCC opposition in this effort because he served on the commission for two years while he was a member of the San Diego City Council in 2007-2008. News reports indicate his appointment to the panel was controversial. Some environmentalists said he didn't have savvy or sensitivity for environmental concerns. Hueso responded that his critics were elitists.
If the Assemblymember, who is vying in November for a seat in a newly redistricted area, and CBPA perceived the bill narrowly as a special interest favor, they might have not even considered that nearly every county and city in the state might take serious issue with its wording.
Los Angeles County Supervisor Zev Yaroslavsky and many other California officials indicated that they viewed the measure as a land use authority power grab that could have critically tied local government’s hands.
On May 29, Yaroslavsky’s colleagues got behind his motion stating that “by demanding that the county meet a more stringent evidentiary burden under the theory that local agencies should use the same standards as a court when making certain land use determinations, AB 2226 would make the county’s land use decisions far more technical and less accessible to members of the public, and would subject the county to increased risk of expensive litigation. It would also make it harder for the county to make fair and correct determinations when questions of legal access or the validity of easements arise.”
The motion concludes, “Finally, the bill would make it easier for unscrupulous developers to hide from the county their true ownership interests in a property as part of an effort to evade the county’s land use controls. While such deception is likely rare, the county should oppose legislation that could make it easier to subvert the county’s land-use process.”
When bolstered by private and NGO opponents to the Evans project, the chorus of nays on AB 2226 became loud and clear.
But the opponents of Evans’ projects made the news, while the local governments and agencies toiled behind the scenes and flexed their political muscle.
Representatives for Evans did not respond to inquiries and his case did not appear to be mentioned during Tuesday’s hearing, but it appears unlikely that Los Angeles attorney Stanley Lamport, who is on the CBPA board of directors and indicated he was testifying in support of AB 2226 for the powerful lobby, was unaware of the implications for Evans because Lamport is also a member of the Evans legal team.
Supporters of AB 2226, including the California Chamber of Commerce, lamented the extent of the powers of public entities to curb development, especially in a down economy.
The current president of the Malibu Chamber of Commerce is the permit expediter for the Evans project and attendees at a recent local business meeting have indicated that he appeared to tout the measure at that session.
In addition to Los Angeles County, Santa Barbara County and numerous other local governments, local land use planning groups and environmental organizations expressed opposition.
The vote on AB 2226 was along party lines—with the three Democrats opposing the bill, despite Hueso being a Democrat.

Malibu High School Field Lighting Plan Draws New Criticism

BY SUZANNE  GULDIMANN

The Malibu City Council is scheduled to hear the request for a Conditional Use Permit for four 70-foot-tall poles equipped with 14-foot lighting fixtures that generate 73,000 watts and could potentially be used for 100-plus nights a year for games, practices and other activities, such as fundraising, on Monday, June 25, at Malibu City Hall. Observers anticipate that public comment at the hearing will be protracted and passionate on both sides of the issue.
As lighting supporters continue to near their goal of $600,000 in donations to fund installation of the lights, new opposition to the controversial plan has recently surfaced. The Malibu Surfside News learned as it was going to press that a late meeting on Tuesday night resulted in legal counsel being retained and there are reportedly sufficient funds and community concern for project opponents to proceed with a potential legal challenge depending on the outcome of Monday’s hearing.
Sperate opposition fundraising and petition drives are also underway.
Community activist Lynn Norton, who did not take a position on the issue during the complicated, four-year battle to bring the lights to MHS that included a Local Coastal Program amendment and two California Coastal Commission hearings, is one of the new project opponents.
“The current Mitigated Negative Declaration the study of ‘Design of spill light and glare control’ was done by the sales company that wants to sell lights to the high school,” Norton told the Malibu Surfside News.“Do you think their report might be influenced by whatever their client would like it to conclude?”
“The current MND concludes that changes from the original MND ‘would not result in new significant environmental effects or result in a substantial increase in the severity of previously identified significant effects, and a supplemental MND would not be required,’” Norton continued.
“Many people don’t understand that as the “Lead Agency” the high school was able to make the determination to do an MND instead of an EIR, for their own project—and now they say the changes to the project don't even require a supplemental MND, let alone an EIR. The changes from the project studied in the 2009 MND include changing from 53-foot temporary poles to 70-foot permanent poles, from 45,000 watts of light to 73,000 watts of light, and from 16 days to 75.
“The original 2009 MND concludes that the project will have insignificant impact, and therefore doesn't need an EIR, based on two things which aren’t true: the statement which was never true that there is already security lighting at Zuma and street lights along PCH and therefore this would not introduce sky glow into an area that does not already have light—this statement is simply dropped from the current MND even though the current MND points to the original MND to justify itself, and the fact that significance must include an evaluation of duration and the project was insignificant because it was only 16 nights.
“This is no longer true but the current MND doesn't seem to talk about duration and significance anymore,” Norton said.
“Most people don't seem to understand that this is not over until next Monday,” Norton stated. “They think it is all decided and barely understand that there’s still a decision to make. They don’t understand that Coastal only decided an outside limit and what Coastal’s purview is and, for example, that the city of Malibu and only the city of Malibu should concern itself with the benefits/impacts to citizens, including private views, noise to residents, etc.”
Malibu High School’s “Bring on the Lights” fundraising project to finance the field lighting moved closer to its $600,000 goal this week.
Gabrielle Morgerman and Kevin Morris joined Janice and Jeff Nikora in the top donation category, with a contribution of $40,000 or more.
Actor Charlie Sheen and the Malibu High School PTSA recently donated at the $10,000 and up level. They join the Malibu Bay Company, Micheal and Colleen Baum, Cindy Crawford and Rande Gerber, Henry and Lori Holmes, Scott and Patti Schwartz, and an anonymous contributor at that level. There is also an anonymous donation at the $25,000 and up level.
The June 25 meeting agenda and the city staff report on the item are available online at www.malibucity.org

Wednesday, June 13, 2012

Eleventh Hour Protests Continue as Lagoon Project Moves Forward

• Los Angeles Chapter of the Audubon Society Pulls Its Support for Controversial Construction Plan

BY SUZANNE GULDIMANN


Lagoon project opponents packed Malibu City Hall on Monday night to ask the city council once again to take action on the controversial State Parks plan to drain, dredge and reconstruct the western portion of the lagoon.
More than 40 speakers—not one in favor of the lagoon project—spoke for more than two hours, expressing their concerns and frustrations over the project.
Although State Parks still does not have its dewatering permit, fences went up this week at the park, limiting pubic access to the dirt road at the west side of the wetlands, and crews began trapping and removing animals.
In the early hours of Sunday, between midnight and 5 a.m., the sand berm at the lagoon breached at Second Point, releasing the water from the lagoon. There was reportedly no evidence and no witnesses to link the breach with the project, but that didn't prevent a groundswell of rumors linking the illegal breach to the project contractors.
 The swift installation of sandbags and plastic within the channels on Monday, despite assurances from State Parks that no work would begin in the channels until the dewatering permit was issued, fanned the flames of numerous conspiracy theories.
“The illegal breaching that happened yesterday was a crime,” 10-year-old lagoon activist Daniel Jones told the council. “Now the contractors can do what they want. I am tired and I feel defeated. I don’t know if all of you have done everything you could do.” Jones added that he can no longer surf at Surfrider. “My mom won’t let me.”
“[This is the] first time I felt like getting back to activism that was part of my youth,” west Malibu resident Joanna Burke said. “I felt compelled to come here today to say that the confusion, this boondoggle, needs to be cleared up. It’s a tragedy. Please do something.”
Julianne Weir, an artist visiting  from the UK, described the lagoon as paradise. “I cannot believe [this project is] permitted during nesting season,” she said, describing the great blue heron, night crowned heron, great egret and common egret she saw that day feeding in the lagoon's main channel. “Where nearby will they go when the lagoon is dewatered?” she asked. “I believe there are laws protecting nesting birds. Why can these laws be bypassed?”
“The lagoon is being dug up because of manufactured science,” activist Wendi Werner said. “[There is a] flawed dewatering plan. I am ashamed of the science. This plan is flawed.”
Malcolm Jenkins stated that he had only just joined the opposition effort. “To allow this project to begin during nesting season is an indictment of the lack of sincerity. Relocate these baby birds? Like their mothers are going to be able to find them. I question [State Parks] sincerity and most important, integrity.”
“We would really like to know who breached the lagoon,” surfer Sean Kehoe said. “We are very concerned about what's going on. [It’s] chaos for animals down there. We’ve been telling people not to go in the water. The rangers don’t tell them it’s hazardous to go in. If the bacteria level [after breaching] isn't that high why are we so concerned about restoring it? We want to live. We want to go surfing. We want to let the wildlife live. There has got to be a better solution than bringing in the lights, the bulldozers. We need you to stick with what you believe in.”
 “This is a place I’ve painted for 15 years,” said Malibu resident Cathey Cadieux. “When I saw the cages I was very concerned. ‘Which of my friends are you going to put in cages?’ I asked. ‘We can’t tell you that,’ [State Parks officials replied]. ‘Where are you going to take them?’ ‘We can’t tell you,’ they said. This has got to be against the law. I am asking you to acquire the revocation.”
“This is the nesting season,” said Georginne Bradley, speaking for the Sea Save Foundation. “You don’t have to be a scientist to know that. There have been no core samples from Malibu Lagoon. There is a lack of due diligence if we don’t know what we are digging up.”
Bradley also criticized the State Parks plan to remove Rindge Dam.
“Rindge Dam removed after this project? Tons of sedimentation downstream making it imperative to redo [the] project?
“This does not make sense,” Bradley said. “I would criticize the dewatering plan, but we don’t know what it is. They are removing animals, damaging habitat past the point of being able to save it. I’d like to know when we are going to get this plan. I see doors closing. I don’t know how many open doors are left.”
“Are you ready to act?” asked former councilmember Missy Zeitsoff. “We are at a crisis in this community you are supposed to protect.”
Zeitsoff made four requests.
“John [Sibert] and Laura [Rosenthal] resign from water commission,” Zeitsoff said. “Keep the lagoon on every agenda until the issues resolved; Tomorrow file for revocation; and the big one, sue. Everyone sues us, we can do it, too. And if you don’t we will get three new council members and you can guess who they will be.”
Marcia Hanscom, executive director of the Wetlands Defense Fund, one of three organizations involved in legal action against the project, read a letter from the Los Angeles Audubon Society to State Parks that stated that the board of the conservation organization had voted unanimously to withdraw support from the project. The San Fernando Valley and Pasadena chapters had previously voted to oppose the project.
“Look into and support revocation,” Hanscom said to the council.
“There are numerous things, misrepresentations made to the Coastal Commission,  things the Commission never allows an applicant to do. We would like you to come [to the CCC meeting in Huntington Beach] Wednesday, Thursday, Friday. “
“I’m a scientist, not a surfer,” said Wetlands Defense Fund’s Robert Roy Van De Hoek, “but I stand with surfers, and there are scientists coming on board each day.”
Van De Hoek asked the council to request a revocation. “If you appeal to them and ask them to appeal for revocation and you go to [CCC Executive Director] Charles Lester. Lester has a requirement by law if there is new science, new facts, some things that were false, he is required to put the project on hold. It’s temporary until a hearing can be held . It’s all about buying time. We will get a revocation on Wednesday if you come down there.”
“I am a nine-year-old surfer that loves Malibu,” said William Parma. “It’s habitat not only for birds, but lizards who come out at night, and the mice that hide in the reeds, and the goby who is endangered. Take back Malibu Lagoon for the wildlife,” he said.
“We elected you to represent us,” said Surfers Coalition to Save Malibu Lagoon representative Nece Mills. “If you do not, there is not a city official who isn’t subject to impeachment or recall. The paperwork will be filed by the end of week.”
 “Sampling should be done twice a day,” said activist Ryan Embree. “Absence could be a three-day delay of likely biohazard,” he said.
“I’m concerned that this has been acknowledged as an experimental project,” Embree added. “It’s a make work project.”
Craig Sap, State Parks district superintendent for the Angeles District was at the meeting at the request of Mayor Laura Rosenthal, to answer the council’s questions. He stated that State Parks had “no idea, none whatsoever, what happened with the breach.
Rosenthal asked why the project was taking place during nesting season.
“We have a permit,” Sap replied. “That’s the way the project was laid out. Within the timeframe the birds will be gone. It’s also the permit is only during this season, they won’t be able to be there in November. It works out best. [We are] taking every precaution for bird eggs, nests.”
“Why can’t you tell where you are taking the animals?” asked Rosenthal.
“We aren’t allowed to divulge,” Sap replied. “It’s within the permit [that] we aren’t allowed to divulge.”
Sap reiterated that the city would not receive a copy of the dewatering permit before it received final Coastal Commission approval. He added that he hopes to have the finalized permit by Wednesday or Friday.
When Rosenthal again asked if the city would be able to provide input, Sap replied, “Before approvals? No. It's been my intent that the second it is approved the city can see it. It will be some days before dewatering begins.”
“What’s the point of showing it once its approved?” asked Rosenthal.
“I can’t speak to that. I am not the one writing the permit,” said Sap.
City Manager Jim Thorsen said that the city met with a State Parks representative 10 days ago. The discussion included the dewatering plan. “On June 6, we learned that is was submitted to the California Coastal Commission, and not the city,” Thorsen said.
Thorsen said that the city is working on an indemnification clause. “State Parks is reviewing it,” he said.
 Thorsen added State Parks “did not agree with us on water monitoring requests and are sticking with their plan.”
Councilmember Joan House asked the City Attorney Christi Hogin about revocation. “Do we meet the standards?” she asked. “What are our options?”
Hogin relied that she didn’t have all of the facts but that the revocation request must show “intentional misrepresentation. There may be other triggers, conditions not properly implemented. I haven’t seen evidence yet.”
All of the council members said that they planned to attend at least one day of the three-day CCC meeting in Huntington Beach this week.
“What I’m trying to explain to State Parks and the Coastal Commission is it has split the town, it is a boondoggle,” said Rosenthal, in closing. “I plan to get there Wednesday morning. I will talk to everyone. You are all asking of us, but you are all as powerful and strong and you need to do what you are asking us to do.
“If you are passionate go to the Coastal Commission, call them, call the people on the water control board, too.”

Council Approves Firm’s Takeover of Malibu Lumber Yard Ground Lease

• Ohio-Based Realty Trust Buys Out Original Partners

BY BILL KOENEKER

The Malibu City Council, at its meeting this week, approved the sale of the ground lease of the Malibu Lumber Yard shopping center by Malibu Lumber LLC to Glimcher Properties Limited Partnership.
Before the council did so, they heard from the city’s consultant Allan Rotin on his assessment of the transfer said to be worth approximately $35 million but unconfirmed.
Officials from Glimcher, which is publicly traded, said they would be making a required filing this week and the price tag would become public knowledge, but they could not do so until that time.
Rotin said some of the questions he had in mind and that others might ask are:
Is Glimcher qualified financially and at a suitable management level?
Do they have a good plan for the Lumber Yard since it is not a typical shopping center?
What are the financial impacts to the city and the community?
Rotin said Glimcher has $1.8 billion in assets. “They have the money and the depth of management,” he concluded.
The consultant indicated he was impressed they would be using the same management company that Malibu LLC has been using.
He said property taxes should go up slightly because of the sale and the city should make the same amount of money or more.
Michael Glimcher was asked a few questions by Mayor Laura Rosenthal, including “How do you view this center?”
Glimcher said, “We view it as a gem. It is very well done. We think we can make it better, especially the common area by having more activities and doing improvements. The occupancy is at 80 percent. We think it could be 95 percent. We are sensitive to the local tenants because we know we need the right mix. We are moving our company upscale and think this has a huge growth profile.”
Partners Richard Weintraub and Richard Sperber, who make up the majority interest of Malibu Lumber LLC have declined to speak publicly for the past week or so as the deal waited for city approval.
Over the past few months, Sperber has made no secret of wanting out, but Weintraub has insisted he was in it for the long haul.
When a previous city council inked the original deal, much was made that both partners were locals, who lived with their families in Malibu, as a justification for  the 50-plus-years ground lease.
Glimcher Malibu LLC, a Delaware Limited Liability Company, is the affiliated entity of Glimcher Properties, which is expected to assume all of the obligations of Malibu Lumber LLC.
The council’s action, recommended by the staff, “is to authorize the city manager to execute all documents necessary or appropriate fir the transfer of the ground leasehold interest of Malibu Lumber LLC in such form as the city manager shall determine is appropriate,” according to the staff report.
Glimcher Realty Trust, which trades on the New York Stock Exchange, describes itself on its website as “a premier real estate investment trust and a recognized leader in the ownership, management, acquisition and development of malls, which includes enclosed regional malls, and open-air lifestyle centers, as well as community centers.”
Based in Columbus, Ohio, Glimcher was formed in 1994 “to continue and expand the business and operations of The Glimcher Company, which was founded by Herbert Glimcher, current GRT Chairman Emeritus and Trustee.
Glimcher Properties currently owns or manages a total of 26 properties in 13 states. “Of the 26 properties, 22 are regional malls or super-regional malls, many of which are located in the country’s top-growing metropolitan statistical areas,” according to its website.