Malibu Surfside News

Malibu Surfside News - MALIBU'S COMMUNITY FORUM INTERNET EDITION - Malibu local news and Malibu Feature Stories

Wednesday, July 25, 2012

Paradise Cove Public Safety Issues Get City Council Attention

• Concerns Include Traffic, Parking, Pedestrians on PCH and Problems for Residents in the Area
BY BILL KOENEKER

Although it was not on the agenda of the Monday night meeting, the Malibu City Council heard an informal report from City Manager Jim Thorsen about traffic congestion, parking and other problems at Paradise Cove this summer.
Overflow traffic, hundreds of walk-in visitors who park on the narrow shoulder of Pacific Coast Highway, and the closure of the road leading to the cove have created traffic jams and swarms of pedestrians at the intersection unlike those ever seen before, according to residents.
“I have received a lot of complaints about the parking,” said Councilmember Joan House, who noted complaints have also surfaced about the parking along PCH at the trail head to Escondido Canyon Falls.
“Near Paradise Cove on the ocean side, the cars are parked near driveways and the residents cannot get out,” House said.
David Saul, a member of the city’s Public Safety Commission, said people are upset about it since many beachgoers are walking along PCH. “It is very dangerous. It is an accident waiting to happen,” he said.
Councilmember Skylar Peak said he is also getting phone calls about it. “Maybe we should close off the parking lot,” he said.
Mayor Laura Rosenthal said she and Councilmember Lou La Monte are meeting with the state Secretary of Transportation next month and encouraged folks to sent photos or videos to the mayor’s office so that other officials can see firsthand the problem. “Lou and I welcome movies,” she said.
Thorsen said the staff has met with the Cove owners. “We went over a lot of issues,” said the city manager, who explained there will be a hearing before the planning commission in September on renewal of a septic system permit.
“We talked about the parking, the cabana rentals, alcohol on the beach, and the food service on the sand,” he said.
Peak wanted to know how the septic system could handle so many visitors. “Where are we at with the water quality? How can they possibly have that many people? How are we managing that?” he asked.
Thorsen said there were two issues at Paradise Cove concerning water quality. The first is stormwater flow. “It is a slow trickle [in the summer]. There is a high bacteria count [from the creek]. It goes through treatment and it’s clean. It is discharged [near the creek mouth] and within minutes it is dirty,” he said.
Thorsen said the wastewater issue is complicated by what appears to be a background of bacteria from natural sources. “There has been no study to determine [the efficacy of] wastewater treatment. High bacteria counts appear in high use, low use, summer and winter. They do use porta-pottys when there is high use. That is OK. It may be natural bacteria sources.”
House said she and her husband visited Escondido Canyon around 6:30 p.m. one evening and counted 184 people on the trail and in the canyon. “It was clean. It was nicer than I remember,” she said.
 Sacramento’s frenzy to make cuts to the state budget include funding cuts to the Brown Act noticing requirements mandated by the state law that were always traditionally paid for by the state.
Taking note of that activist Hans Laetz came to council chambers this week to ask the city to “consider an order, policy or procedure for support or commitment to the Brown Act.”
He said the city does a good job of adhering to the state law, especially when it comes to public noticing.
The law was enacted to create a more open government by requiring cities, counties and other government entities to enable the public to know when government business is going to take place. The law also refers to how decisions are made at government meetings by officials.
City Attorney Christi Hogin confirmed the state budget had stopped funding Brown Act mandates, but the city would continue to do so. “We have always gone beyond the Brown Act,” she said. “The posting of the agendas. We will continue to do that. We hope next year we will be reimbursed, but it does not cost that much,” she added.
There were also complaints heard by the council concerning sewage transfer trucks and a junk and trash removal truck which posts its advertising on a truck bed of trash.
Aaron Goodson told council members the trash truck has garbage spilling out in between its big sandwich board ads. “I thought that was illegal. Everybody will start posting signs. It is just inappropriate. I don’t know what is allowed.”
Ryan Embree told council members several septic pumping companies have been doing sewage transfer along Civic Center Way.
“I’m not sure it is legal. There is a new storm drain that goes to the beach. It is a serious issue.”
The septic pumping trucks are a regular fixture on Pacific Coast Highway near Heathercliff, so much so, there are giant potholes on the southside shoulder of PCH, which is dirt and mud.
There are also cars and trucks parked along the same section of shoulder displaying “for sale” signs, and several food trucks do a brisk business.
The advertising trash truck that Goodson complained about has been spotted in recent weeks making a home for itself amongst the other trucks along what some Point Dume residents jokingly refer to as the industrial zone of Point Dume.
Thorsen said code enforcement was aware of the advertising trash truck. “Hopefully we will have the truck removed,” he said.

Dewatering Phase of Malibu Lagoon Project Is Initiated

• City Asks State Parks to Suspend Pumping Operation for Annual Charity Surfing Competition

BY SUZANNE GULDIMANN

The dewatering phase of State Parks’ Malibu Lagoon Restoration and Enhancement Project was initiated on Monday.
“The contractors are working on refining the outflow [to reduce beach erosion],” State Parks’ Senior Biologist and project spokesperson Suzanne Goode told the Malibu Surfside News, in response to concerns over the volume of water currently being released. “We will be bringing in larger rocks to help dissipate the energy.”
Goode explained that the water being released is brackish. “We are not desalinating, we are chlorinating and then removing the chlorine, but not the salt. It’s eight parts [salt] per 1000,” Goode said.
Goode said that it will take several days of dewatering to lower the water level in the former western channels to the point where bulldozers can begin work.
“Dewatering will be continuous,” Goode said, adding that pumping will continue throughout the construction process to prevent the channels from refilling before work is complete.
“All of us down at Surfrider [Beach] are on pins and needles,” Surfers Coalition representative Monique Kehoe told the Malibu City Council later that day. “The discharge is happening. There are a lot of unhappy surfers. We know there is not much you can do, but the Call to the Wall [invitational charity surf competition] is happening this weekend. We were hoping the dewatering could have been postponed until next week.”
“We were notified at 11 a.m. that dewatering began,” Malibu City Manager Jim Thorsen said.  “We asked that State Parks desist for Call to the Wall. We hope they will respond correctly.”
“It’s a health hazard,” Councilmember Skylar Peak said. “I will personally call L.A County [Department of Beaches and Harbors] and request that they put health hazard signs there. I think it is ridiculous that they haven’t. They have to do it when the creek is open.” Peak added that he is looking forward to competing in the longboard division of the charity event this weekend.
Surfer’s Coalition member Sean Kehoe brought three “Big Gulp” soft drink containers full of what he described as “Lagoon-aid” to the podium, a reference, he said, to offers by lagoon project proponents to drink from the dewatering outflow pipe.
“We would like to see the test results now that they’ve started,” Kehoe said. [Contractor Mark] Abramson, Goode, [State Parks District Superintendent] Craig Sap, they all said they would drink the lagoon aid. We want to make sure results are being posted.
“We are the watchdogs,” Kehoe said. “It looks ok but I’m not a scientist, so I don’t know. I can’t test. I want to make sure we are safe, because we do drink the water. It goes in our noses, in our mouths. Let them put their money where their mouth is. We are all in this together.”
“When I did talk to Craig Sap I asked for preliminary test results so we could post them on our website,” Thorsen said. “Hopefully, maybe tomorrow we will we will get testing results and ask for them on ongoing basis.” Thorsen described the testing company as “a reputable company we have hired in past. They are an excellent firm and do a very good job.”
“We are talking about indemnity,” activist Ryan Embree said.
“If this document was written by the state or if we had a substantive input and if everything we want to say was said. Is this covering only the short time while they pump out pipe or is this enduring if they make such a mess that its going on for years?”
“Under the Clean Water Act, anyone who impairs quality of water is responsible,” City Attorney Christi Hogan said. “Nothing changes that. This indemnification was originally written by us and then negotiated. Indemnity does address issue of city incurring costs defending itself recover costs defending selves if held responsible by water quality problems caused by the project. It’s another tool in our tool box.”
The council voted unanimously to approve an indemnification agreement with State Parks.
Opponents of the project say they will continue to press for ongoing public access to water testing results.

Appeal of Alcohol Sales Permit Denial Is Continued

• ABC Says Las Flores Location Is in a ‘High Crime District’

BY BILL KOENEKER

The owner, MMK Enterprises, Inc., of the Circle K convenience store located at 21216 Pacific Coast Highway sought a continuance in his effort to appeal the planning commission’s decision to not allow the store to sell beer and wine.
The city council was scheduled to hear the appeal at its meeting on Monday night this week.
The planning staff has recommended the council deny the appeal and also deny the Conditional Use Permit for “the sale of beer and wine for offsite consumption as an accessory use to the existing Circle K convenience store.”
Schmitz &Associates representative Chris Deleau, who represents the Circle K owner, wrote to city officials asking for the delay.
The council agreed to hear the matter at its meeting on Aug. 27.
The proposal has been rejected by the planning commission on two separate occasions.
The appellant contends in the appeal that the basis for denial on the grounds there are a concentration of too many businesses selling alcohol for off-site consumption is not legal and cannot be implemented by the municipality.
“The city may not deny the [Conditional Use Permit] on the basis of ‘undue concentration’ or ‘saturation’ as it is preempted from making such a finding,” wrote Schmitz and Associates representative Chris Deleau.
However, the planning staff countered that in 1995, the state amended the code to require ABC  “to deny an application for a liquor license if issuance of that license would result in or add to an undue concentration of liquor licenses.
“Undue concentration is defined as occurring when the premises of the proposed license is located in an area that has 20 percent more reported crimes (which is classified as a high crime reporting district) than the average number of reported crimes for the reporting district as a whole.
“On June 28, 2012, ABC staff confirmed that the subject property is located within a high crime reporting district (District No. 1017).”
However, in the letter seeking the continuance, Deleau took issue with the planning staff on the ABC  determination.
“Ms. Hoffman [at ABC] confirmed that for Circle K’s application (and apparently others) she has been utilizing the 2009 crime statistics as the baseline for assessment under the government code. The code requires that the ABC utilize the most recent year of compiled crime statistics in order to make its evaluation (2011-2012). Therefore it appears that the ABC did not follow statutory protocol when making its assessment of the Circle K application,” Deleau added.
The Circle K spokesperson also took issue with ABC’s use of what is called the reporting district for Malibu, which “is inclusive of areas within the jurisdictional boundaries of several government entities. Thus, it appears that the ABC has also misapplied the terminology in the statute in order to arrive at its determination that the city is a ‘high crime reporting district.’ Additionally, the term ‘high crime reporting district’ does not appear to be a term defined in the statute. We desire to obtain further clarification in this regard,” Deleau informed the city.
The appeal letter also stated, “The planning commission’s finding that the proposed use would not be compatible with land uses presently on the subject property and in the surrounding neighborhood was not supported by substantial evidence in the record.
The staff response stated, “The commission considered the mix of uses in the area, the configuration of the lot and its primary use and found that the  request could not be supported based upon the use’s incompatibility with the land uses in the surrounding neighborhood.
“The appellant offered to include conditions of approval, which would require that the property owner retain a private security company to patrol. These self-imposed conditions were then reiterated by the appellant in his presentation to the planning commission, however the commission determined that these measures were simply not enough to ensure that the sale of beer and wine would be compatible with the existing surrounding uses in the neighborhood.”
The appellant also insists the planning commission’s finding that the proposed use would be detrimental to the public interest, health, safety, convenience or welfare “was not supported by substantial evidence in the record.”
The staff response is that the planning commission heard the matter twice and the commission “considered all evidence presented and concluded that the request would be detrimental to the public interest, health, safety, convenience.” The staff responded by saying the appellant is incorrect. “All CUPs must be consistent with the General Plan. The Malibu Municipal Code must also be consistent with the General Plan, but regardless, the specific implementation measures must be complied with.
There is another basis for the appeal, according to Deleau, who added.
“The record reflects a clear and direct bias against the applicant and its application based upon the fact that the sales location is a service station. The applicant contends that the denial of its CUP was discriminatory and in violation of this provision of law [and] that the commission’s decisions were politically motivated and not factually supported,” the appeal letter goes on to state. 

State Parks Agency Caught Hiding Millions from Sacramento

• Agency’s Flouting of Numerous Laws Seen as Indication of Disregard for the Public

BY SUZANNE GULDIMANN

As California Natural Resources Agency Secretary John Laird begins to conduct a massive review of the state Department of Parks and Recreation’s management in the aftermath of the discovery of an previously undisclosed $54 million surplus in Sacramento, opponents of the Parks Department’s Malibu Lagoon Restoration and Enhancement Project are calling for an audit on the local project.
The surplus revelation came as a shock to legions of park volunteers all over the state and a variety of charitable organizations who have been scrambling to raise $22 million to keep 70 state parks from closing.
The discovery follows on the heels of the disclosure of a $217,000 State Parks vacation buyout scheme that reportedly enabled  employees to cash in on unused vacation time using a system of creative accounting recorded on Post-It notes.
“It’s been very sad to see what was once my favorite state agency become so corrupted,” said Marcia Hanscom, Executive Director Wetlands Defense Fund
“First, by abandoning their principles and primary mission of protecting the flora and fauna, as well as the public bridges at Malibu Lagoon, and now to hear of this statewide financial scandal-it all points to why we need better light shining on the budgets and having checks and balances in government. Even the most revered public entities need this oversight.
“In light of this State Parks scandal we call on the State Controller and Attorney General to now initiate a complete audit and investigation of the 10-year long budget and management of the Malibu Lagoon project,” Hanscom said in an open letter.
“We have found numerous approvals of funds from various entities for the lagoon project that add up to far greater totals than the State Parks and Bay Commission report is their project budget. The numbers just don’t add up.
“When the Governor’s office provided former City Councilmember Pamela Conley-Ulich with a reply to her request for a full budget, we could only shake our heads as we could see State Parks provided only a sliver of the bond approvals we knew about.  We told the Governor’s office, but our concerns were ignored. Since the announcement about State Parks not revealing correct financial information in other instances, it’s time to get clear answers on the Malibu Lagoon project financial situation.
“No one has been able to piece together a complete budget. A forensic audit and investigation is the public’s only way to be assured of true transparency, which has been promised, but not forthcoming,” Hanscom said.
 Lagoon project spokesperson Suzanne Goode told the Malibu Surfside News that the funding for the lagoon project comes from bond money and is not connected in any way to the Sacramento surplus.
“Grants are not considered revenue,” Goode said. “We never have the money. We pay the contractor’s invoice and submit the invoice. The lagoon project is funded by Los Angeles Proposition A and Prop 50.”
Goode stated that the Sacramento surplus is comprised of State Parks and Recreation entry fees.
“It’s absolutely nothing to do with the lagoon project,” State Parks Angeles District Supervisor  Craig Sap told the Malibu Surfside News. The project is using no general fund money. It’s bond money.”
Hanscom responded that it is the principle that concerns her. “Ruth Coleman? I’m very disappointed in her. Her expertise was in finance,” Hanscom said, speaking of the State Parks director who resigned last week.
“It puts the whole thing in question. We are asking for disclosure. We are asking to see the lagoon project budget. We are officially calling for an audit. The public deserves to know.”

City Council Unanimously Approves Money for ASBS

BY BILL KOENEKER

The Malibu City Council, at its meeting this week, agreed to spend $110,000 from its undesignated general fund to be used to conduct a monitoring program along approximately the 11.7-mile coastline along the city’s western boundary designated as an Area of Special Biological Significance or ASBS.
City Senior Environmental Programs Coordinator Jennifer Brown explained the protected area declared by the state an ASBS refers to the diversity and richness of biological resources found in those waters along that part of the city’s coastline.
In order to help maintain natural water quality within some of the most pristine and biologically diverse sections of California’s coastline, the State Water Resources Control Board created ASBS. No pollutants are allowed to be discharged within these protected waters. Currently there are 34 such areas. Malibu is home to the largest ASBS, number 24 which was designated by the state in 1974.
ASBS #24 stretches twenty-four miles along the coast from Latigo Point to Laguna Point, beyond the county line, covering about half of the Malibu coast. Specific regulations or what the state calls “special protections” are mandated for the ASBS.
Brown told city council members one of the “special protections” afforded the ASBS is that no discharge of storm water is allowed into the ASBS.
The State Water Resources Control Board notified the city in 2004 about the prohibition and the city was and is required to request an “exception” to be able to continue the discharges, according to Brown.
Three years later, the SWRCB invited the city to participate in an ASBS regional monitoring program in exchange for reduced requirements under the then pending “special protections.”
Those regulatory conditions called “special protections” were adopted by the SWRCB on March 20, 2012, according to Brown.
The regional monitoring program includes water quality monitoring and biological resources studies in the Southland with various participating agencies sharing the costs.
In 2008, the council had allocated $98,300 to participate in the program.
Those studies, which were administered by the Southern California Coastal Water Research Project put the participating entities including the city at the forefront of the effort to assess the biological and water quality resources in the ASBS, according to Brown’s staff report.
“This information led to the state making a decision to grant the exception. Participation in the 2008 program also reduced the number of required storm events that the city will need to monitor for the special protection,” the staff report states.
The agenda item appeared before the Administration & Finance subcommittee, which gives financial matters its consideration since it involves an allocation over $25,000.
“The city must comply with state adopted ASBS special protections requiring that it conduct an individual program of water quality monitoring and biological assessments.
 Alternatively, the city may participate in a regional program that affords a reduced suite of monitoring requirements,” Brown said.
Now a deadline approaches, agencies such as the city must notify the state by Aug 1 of whether as dischargers they will conduct their own monitoring program or participate regionally.
The council unanimously agreed to participate in the regional study and spend the $110,000.
Why so much emphasis on the ASBS? The allegations by the Santa Monica Baykeeper and the Natural Resources Defense Council about the city violating the Clean Water Act at one time included accusations the city fouled the waters of the ASBS and was guilty of violations of the Clean Water Act..
Consequently, city council members are also looking at spending $113,000 for additional design services for the Broad Beach biofiltration project as required by the Natural Resources Defense Council/Santa Monica Baykeeper legal settlement.
The city recently finalized the terms of the settlement agreement between the city and the NRDC/Baykeeper and as a result of the agreement, the city is required to install biofiltration improvements at an additional drain along Broad Beach Road.
 The council has not yet acted on that allocation, but the matter has already been reviewed by the A&F subcommittee.
The adopted budget for fiscal year 2012-2013 includes $2,097,462 for the biofiltration system. Additionally         design services are needed as required by the settlement agreement.
An appropriation of $113,000 would come from the undesignated reserve fund. The projected fund reserve would drop down to $9.7 million by June, 30, 2013.
As a result of finalizing the agreement with the enviro groups, the city agreed to install biofilation improvements at an additional drain along Broad Beach. The drain was not included in the current design contract.
The current project calls for eight locations along the beach.
The cost to design the additional Broad Beach biofiltration improvements and  monitoring stations is $113,000.

Some Civil Lawsuits Now Are Filed at Santa Monica Court

• Small Claims Cases Also Moved Out

BY BILL KOENEKER

It may have gone unnoticed in April when the announcement was made, but the squeeze is on now that Malibuites have found out that all new limited civil, unlawful detainer and small claims cases within the jurisdiction of the Malibu courthouse must now file at the Santa Monica courthouse, Room 116, located at 1725 Main Street.
As of April 30, 2012, the Malibu courthouse no longer filed new limited civil, unlawful detainer or small claims filings, according to spokespersons at the Los Angeles County Superior Court.
The Malibu courthouse continued to hear previously calendared limited civil, unlawful detainer and small claims cases until June 15.
“All limited civil, unlawful detainer and small claims cases with a calendar date on or after June 18, 2012, scheduled at the Malibu courthouse will be recalendared for hearing at the Santa Monica courthouse with notification to follow from the clerk,” the announcement from the court stated.
All limited civil, unlawful detainer and small claims cases pending in the Malibu courthouse were transferred to the Santa Monica courthouse as of June 18.
Massive budget-cutting measures are attributed for the move. Many other budget cuts have also been absorbed by the courts.

Publisher’s Notebook

• DPRgate: Who Knew What When at State Parks •

BY ANNE SOBLE

Malibuites have spent much of the last two years hearing some local officials and proponents of state Department of Parks and Recreation projects describe the agency as a paragon of environmental virtue and commitment to natural resources at the same time that DPR was perpetuating a major scam on the people of California.
While State Parks personnel were castigating local critics of DPR policies as being self-serving and driven by personal financial interest, the agency had what was tantamount to a slush fund of $54 million that it failed to report to the Department of Finance for 12 years.
This week, Gov. Jerry Brown announced the state Attorney General’s office would launch a formal investigation into “significant budgetary irregularities at the California Department Parks and Recreation dating back to at least 2000.” Brown also directed the state DOF to conduct a comprehensive audit of DPR’s financial records. A review of State Parks management is also planned.
The scandal erupted after some outstanding public interest sleuthing uncovered illegal and secret DPR vacation time buyouts of more than $271,000. It turned out this malfeasance was the first indication of a pervasive attitude of disregard for the law afflicting DPR’s mindset.
State Parks had this cache of $54 million while cutting services and threatening to close parks because of a “shortage of $22 million”—less than half of the hidden funds. This behavior is seen as a blatant betrayal of dedicated volunteers who are upset they were lied to and encouraged to undertake efforts to raise funds to keep parks open.
A thorough financial audit is critical, as is determining who up and down the chain of command knew what was going on and when. As has been learned during the Madoff and other scandals, it takes quite a few people to doctor books, juggle hidden funds, and keep this much money a secret from staff and contractors who act as quasi-staff.
Now that some non-governmental organizations, which were once DPR watchdogs, serve as agency appendages, they require oversight as well. In traditional public administration theory, agencies are co-opted by the interests they are supposed to regulate. DPR is a case of mutual cooptation, as the agency co-opts NGOs with hefty contracts and grants.
In a recent public interview, the officer of one group noted it has gone from a living room-based volunteer public advocacy effort to a $6 million dollar entity. How many government contracts and grants are required to help meet the group’s budgetary needs? Is it time to ask what percentage of these NGO budgets is met by donations and what percentage by government largesse?
Isn’t this related to the ancillary question of how organizations that have become agency contractors, or service vendors, are able to keep their non-profit status? Does this give NGOs an unfair bidding advantage? Is there even a public bidding process? Some disgruntled citizens say they are looking into IRS rulings that may address this kind of non-profit metamorphosis.
The governor used the threat of park closures to illustrate the state’s financial crisis in his pitch for higher taxes, but there are concerns in Sacramento. Could the admission by officials that they didn’t know DPR had these funds undermine the call for voters to send additional tax dollars to the state capital?
One reason major wrongdoing could go undetected for so long is there are no longer any citizen watchdogs keeping an eye on DPR. No one is able to challenge the agency without fear of financial repercussions. The current situation cries out for groups to form whose hands are not in the agency’s pockets. Someone has to represent the public’s interest in California’s public lands.

Resident’s Decade-Plus Battle with Coastal Commission May Finally Conclude

BY BILL KOENEKER

A 14-year struggle between Grant Adamson, who heads the Mariposa Land Company and the California Coastal Commission over a rock rip-rap revetment on Malibu Creek may finally be coming to an end.
With a staff recommendation approving the permit, the Coastal Commission is expected to act on the request at its meeting next month in August when the coastal panel meets in Santa Cruz.
The matter began on February 20, 1998, when the coastal agency issued an Emergency Coastal Permit to place about 500 linear feet of rock rip-rap revetment along the west bank of lower Malibu Creek, about 300 feet upstream of the Pacific Coast Highway bridge, according to CCC officials.
The revetment consists of 1500 tons of half-to- eight-ton granite boulders placed on the slope 14-16 feet in height with a two-to-four-foot toe below the stream.
Adamson told coastal staff at the time the revetment was necessary to protect the subject property and an adjacent commercial development from further severe storm bank erosion in the face of potential continuing winter storms.
Prior to placement of the revetment, coastal officials maintain approximately 20 feet of lateral erosion occurred along the stretch of creek bank following a powerful storm that month.
As is the usual case, condition of approval required the applicant to apply for a regular coastal permit within 60 days in order to seek permanent authorization for the emergency work.
The permit application was to include an analysis of stream bank protection alternatives prepared by a qualified engineer, according to a CCC staff report.
In June, Mariposa Land Co. submitted a regular permit application.
However, the coastal staff maintained the application did not contain enough information to deem the application complete and told the applicant.
The commission staff insists follow-up letters were sent and a back and forth went on for another six or seven years.
“And in October 2007, the applicant revised the proposed project description to include planting of the rip-rap stream bank and top of bank with riparian and upland species and submitted a ‘Vegetation Restoration Plan,’ prepared by Impact Sciences. Inc.” the commission staff report states.
 On May, 21, 2008, the coastal permit application was finally deemed complete and commission staff tentatively scheduled the application for the CCC’s November 2008 hearing.
The commission staff contends that several months before the hearing it was brought to the attention of the commission that the as-built project plans were not based on a detailed survey and therefore “were not reliable depictions of the actual configuration of the rip-rap slope.”
Commission staff requested the applicant provide accurate, detailed surveyed plans of the proposal. The application was then scheduled for a February meeting in 2009. But before that happened, the applicant, according to the commission staff, withdrew plans and an April 2009 meeting was scheduled. At that meeting, the commission continued the item, directing the staff to provide additional analysis.
In August 2009, the commission approved the project with fifteen special conditions as per recommend by the staff.
The applicant then filed a lawsuit challenging the approved permit condition that required the rock slope project be re-engineered. The trial court ruled in the applicant’s favor, finding that the evidence in the record did not establish that the re-engineered revetment would be feasible.
The court issued a writ of mandate remanding the permit back to the commission with directions to hold a new hearing on the permit. The commission has appealed the trial court’s decision, but if it acts on the remanded permit, that action will render the appeal moot.
If the commission approves the permit with the conditions recommended by staff, the applicant has agreed to waive claims for attorneys fees and court costs. “The commission retains discretion to take an action different than the staff recommendation, so long as it complies with legal requirements and is supported by substantial evidence in the record,” the CCC staff report states.
This time the staff is recommending approval of the proposed development with eleven conditions.
The project area is within the City of Malibu, but falls within the commission’s area of retained original permit jurisdiction because the development is proposed on lands that are below the mean high tide line and/or on public trust lands.

Wednesday, July 18, 2012

Reserve Boundary Creates Confusion for Volunteer Stewards

• Enforcement Is Still a Learning Process for Wardens Charged with Patrolling the New MPAs

BY SUZANNE GULDIMANN

The network of Marine Protected Areas along California’s South Coast took years to plan as part of the requirements of the Marine Life Protection Act passed in 1999, the MPAs, including Point Dume State Marine Reserve and State Marine Conservation Area, only went into effect in January of 2012 and the Department of Fish and Game wardens charged with enforcing the new parks’ fishing restrictions are still developing their strategies and finding some unexpected challenges.
“The law was just enacted last year. We’re still going through education,” Lieutenant Rod Buckler, a supervisor for a California DFG warden squad, confirmed. “We do get a lot of calls of boats within the boundary. People want to be good stewards, but it’s hard to tell just by looking.
“From shore it’s very difficult to determine if the boat you are looking at is in the MPA,” Buckler said. “What we are seeing is boats that fish on the line, the geographical boundary. A chip with the boundaries is inserted into the boat’s plotter. You can zoom right in to show the boundary. They’ll fish within 40-50 feet of the line, which is legal.”
Rick Oefinger of Marina Del Rey Sportfishing identified the boat in the photo shown in last week's Malibu Surfside News that was described by Point Dume observers as possibly being within the boundary of the Point Dume SMR.
Oefinger stated that while the—sportfishing charter boat named the Spitfire—may appear to be in Little Dume Cove it is actually fishing outside the Marine Protected Area boundary line. “We would be busted in a minute,” Oefinger told The News. “Like it or not, the MPA closures are the law and we are not scofflaws.”
Oefinger explained that because the eastern boundary of the Point Dume MPA forms a narrow pie-shaped wedge close to shore, the boat, which he said was fishing adjacent to the protected waters in Little Dume Cove but not on the MPA side of the line, appeared to be within the confines of the MPA
“We have Garmin Chart Plotters with a special chip that shows all of the closed areas. There is no reason why we would cross that line,” Oefinger said, adding that the DFG has received numerous calls since the start of bass fishing season off of Point Dume. “We’ve had fish and game wardens on board. It’s not our policy to violate the law,” he said, adding that Marina Del Rey Sportfishing frequents the Malibu area year round and that they strictly adhere to all DFG regulations. “There is no reason why we wouldn’t,” Oefinger said. “This is our life. I’ve been here since 1970. When we aren’t out here with sportfishing parties we are out here whale watching. There are all types of dolphins right now and fin whales. They’re really dynamic. It’s a bonus.”
“Most of the commercial fishing boats are equipped with chips,” Buckler told The News. “Many of them participated in the MPA process. They know where the MPAs are. Recreational fishing boats are less likely to have the navigation software.”
Buckler said that citations are “totally up to the court,” but can result in a stiff fine.
On the commercial side, operators can face fines and a commission review that could result in a revocation of the operator’s license.
In May, a Riverside County man was the first person convicted of committing a resource crime in the newly created MPAs.
Marbel A. Para, 30, pled guilty to violating DFG code and received a $20,000 fine and a week in jail. Para and a companion were apprehended in an MPA with 47 California spiney lobsters, according to a DFG press release. 
The legal limit for lobster in areas where fishing is allowed is seven. All but five of the lobsters were undersize, according to the release.
To date, no Malibu violations have been prosecuted.

Malibu City Council Member’s Recent Behavior Is Subject of LASD Investigation

• April’s Top Vote-Getter Undergoes Medical Evaluation

BY ANNE SOBLE

Allegations of brandishing a weapon in a threatening manner, vandalism and erratic behavior by Malibu City Councilmember Skylar Peak are currently under investigation by the Los Angeles County Sheriff’s Department, according to Capt. Joe Stephen, the commander of the Lost Hills Station.
The allegations stem from an incident that occurred at the Point Dume Village shopping center parking lot on Wednesday, July 11, at about 9:45 p.m. Several witnesses, who include security guards on duty at the center, allege that Peak, garbed in what they describe as a “Speedo” swimsuit, was running around the parking lot, screaming, knocking over shopping carts, and wielding half of a pair of scissors as a knife.
Shawn Nowrooz, the CEO of State Organizations, Inc., the firm that provides security to Point Dume Village, told the Malibu Surfside News this week that Peak “tried to stab one of the guards.” Nowrooz said the center’s guards were concerned for their safety and the safety of the patrons.
Capt. Stephen indicated Lost Hills deputies were called to the scene. He confirmed the witness reports about Peak’s attire and actions, and added, “The witnesses are credible.”
Deputies then spoke with Peak who reportedly had returned to his Point Dume residence. Stephen said Peak “was not booked, but was taken to a hospital for evaluation.” Stephen said the federal HIPAA Privacy Rule precludes providing medical information, indicating, “Peak is a suspect in an ongoing investigation. I cannot say more than that at this time.”
When reached by The News on Tuesday, Peak said, “I was on a workout…running barefoot in a swimsuit and ran through the [parking lot].” He noted that he had a pair of detachable scissors in his waistband.
Peak added, “As I was running, I clipped my foot on a chair and cut it and yelled out.” He said he then ran up to Dume Drive and, there, the council member contends, “I was punched in the chest twice by a security guard and my rights were violated.”
Peak counterclaims, “I was assaulted. I’m going to Lost Hills this week to press charges.”
Peak confirmed that he was transported to Del Amo Hospital in Torrance for a behavioral health evaluation. He said he spent “five days [at Del Amo] and was released.” Peak said he now is “at home, working, and everything is back to normal.”
Peak, 28, is the youngest person ever elected to a Malibu City Council seat. He was the top vote-getter in the recent April election. The affable electrician-music promoter-surfer is a popular and colorful figure whose concerns about Malibu’s ostensible transformation into a cookie-cutter beach town, replete with all the trappings of suburbia, have won him a large and supportive following.
However, Peak is no stranger to headlines since a June 2008 paparazzi-surfer brawl at Little Dume Beach became a media maelstrom that ricocheted around the world.
Two years later, when a hung jury resulted in no action against Peak for his role in the physical altercation, a fellow surfer said the episode was “one more notch in [Peak’s] bad-boy belt.”

CCC Approves Peace Park Cease and Desist

• Owner Is Ordered to Remove Unpermitted Development

                         BY BILL KOENEKER

The California Coastal Commission, at its meeting last week in Chula Vista, approved an agreement or what is called a consent cease and desist order authorizing and directing the United World of the Universe Foundation and Canyon at Peace Park to cease and desist from engaging in any further unpermitted development including “removal of vegetation, grading of roads, construction of residences, placement of structures and installation of parking area in a riparian woodland” on properties on several parcels at 2900 Kanan Dume Road.
“The property owner is in agreement to what is proposed,” said Coastal Commission spokesperson Sarah Christi. “That is why we are calling it a consent. We have cooperated with them. They are not contesting it. They agreed.”
According to a CCC staff report, the violations include the conversion of the previously permitted pump housing, without permit, into a residential structure, the construction of a large unpermitted residence with garage, guesthouse and landscaping, construction of a residence within a designated Significant Oak Woodland, and installation of a residence without permit northeast of the women’s facility. The property is currently used as a addiction treatment facility.
The National Park Service and Heal the Bay praised the commission staff for the resolution of the matter.
“Furthermore, we are pleased that the property owners have been cooperating with the Coastal Commission staff to address the unpermitted development on the site and that they are in agreement to the terms of the Cease and Desist and Restoration Orders. We encourage the commission to approve the proposed orders and move forward with restoration as soon as possible,” wrote Sarah Abramson Sikich, Coastal Resources Director at Heal the Bay.
“Overall, we find the staff report’s recommendation to carry out the proposed Consent Orders would be consistent with NPS's management goals and objectives for Santa Monica Mountains National Recreation Area,” wrote Lorenza Fong, acting superintendent, of the Santa Monica Mountains National Recreation Area. “The coastal staff report provides an accurate description of the resource sensitivity within which the project lies entirely within the SMMNRA.”
The commission staff report lays out what is expected to cure the Coastal Act violations.
 “United World of the Universe Foundation and Canyon at Peace Park shall remove materials from areas impacted by subject unpermitted development, including but not limited to concrete, culverts, homes, graded roads and structures, and shall apply for an after-the-fact permit for a 4,971 square foot home. The consent order also resolves civil liability associated with unpermitted development addressed by the consent order,” the CCC staff report states.
The commission staff report describes United World of the Universe Foundation as the property owner  and The Canyon at Peace Park, as the renter and operator of  rehabilitation treatment facility.
The proposed consent order was approved and executed by Robert Waggener, of The Canyon at Peace Park and Michael Segal for the owner, United World of the Universe Foundation.
Various websites describe Fred Segal as the president of the foundation, though published reports indicate he has retired from the post.
Segal has talked often about the Peace Park in Ramirez Canyon, its opening when the Dahli Lama visited, and the use of the 240-acre property for a world class treatment facility.
In addition, the commission also approved a consent restoration order “to remove unpermitted development and restore portions of properties at the Kanan Dume Road address.
“Proposed restoration includes but not limited to restoring areas impacted by unpermitted development, mitigation for loss of habitat by creating or enhancing onsite coast live oak woodland, coastal sage scrub, and chaparral and purchasing acre credit in the Santa Monica Mountains Recreation and Conservation Authority’s mitigation bank. The consent order also resolves civil liability associated with the unpermitted development addressed by the consent order,” the CCC staff report states.
“We are actually very satisfied with the outcome as proposed,” added Christi. “They are to do a lot of restoration activity.”
Both the NPS and Heal the Bay expressed satisfaction with the proposed mitigation especially the creek restoration stating that armored stream banks are one of three major causes of downstream bank erosion and sedimentation.
The commission report indicates enforcement action was addressed by the coastal panel back in 1990.
At that time, a permit was issued that outlined how to bring the subject property into compliance and outlining where permitted future development could occur and by requiring restoration of several areas where permitted future development could occur.
The permit allowed the construction of a residence now known as the men's facility and a guesthouse within two of the prescribed development areas.
“The violations currently on site, and which are the subjects of these consent orders fall within three basic categories; previously undertaken unpermitted development, which was to be restored, but which remains intact, new unpermitted development within areas delineated as open space, and therefore specifically precluding future development and finally new unpermitted development within areas which were previously delineated as potentially appropriate for development, yet lacking the required coastal development permits,” the staff report concludes.
The commission staff report also notes the unpermitted development on the eastern 120 acres will be addressed in a separate forthcoming action.

Lagoon Dewatering Set to Start as Soon as Final Test Results Are In

• Indemnification Agreement Between State Parks and City Ready for Council Ratification on July 23

BY SUZANNE  GULDIMANN

Initial testing is reportedly almost complete and the dewatering phase of State Parks Malibu Lagoon Restoration and Enhancement Plan is expected to begin as early as Wednesday, after the Malibu Surfside News goes to press.
The City of Malibu received a response from California Coastal Commission staff on July 9 to a letter outlining the city’s dewatering plan concerns.
“Your letter raised several concerns about the details of the dewatering plan, including concerns regarding the adequacy of the seepage rate calculations and the water storage capacity of the temporary basins used to contain the lagoon water that will be treated prior to discharge to the Pacific Ocean in compliance with the National Pollutant Discharge Elimination System Permit approved by the Regional Water Quality and Control Board,” the CCC letter states.
“In response, we note that the seepage rate calculations, storage basin capacities, and pumping rates estimated in the dewatering plan were prepared and analyzed by the project engineers in order to ensure that holding capacity within the basins is adequate…in the event that unexpected conditions are encountered in the field that result in the need for increased capacity, the applicant would be required to sumbit revised plans for the review and approval of the executive director, to additional treatment filtration system components to handle pumping rates or add additional capacity to the storage basins.” 
The CCC staff letter dismisses concerns raised by the city regarding  the potential for tidal flows or surges to impact the dewatering outflow. “The pipeline will be located outside of the surf zone and is not expected to be acted upon by wave action,” the  letter states. “The water filtration system and dewatering operations will be continually monitored during dewatering operations by the applicant and/or project contractors to assure the system is operating properly and the discharge pipeline does not become dislodged.”
CCC staff rejected the city's request for twice daily testing at the discharge site if “disinfection monitoring results exceed the previous day’s monitoring results.” The letter states “In this case, the approved dewatering plan provides that the applicant will perform daily testing requirements for several constituents. Moreover, the testing frequency meets all NPDES permit requirements.”
The CCC letter states that alleged “new” project components, including a plan to place portions of several mature sycamore trees removed during the demolition phase of the project “on channel slopes along the eastern lagoon edge” is not a new project activity, “but was identified and discussed in the staff report for this project and was approved by the Coastal Commission on October 12, 2012.”
Project critics have stated that they are concerned that the logs, intended to provide “fish habitat and erosion control” have the potential to end up in the surf zone during winter storm floods, creating a potential hazard for surfers and property.
The city will, however, be indemnified by State Parks for the dewatering portion of the project. A report prepared for the city council by Malibu City Manager Jim Thorsen states that the indemnification agreement has been negotiated and will be ready for ratification at the July 23 council meeting.
The report states that the “mitigation and monitoring requirements may not fully reduce the risks associated with the release of harmful pathogens to a level of insignificance…failure to meet water quality standards in the creek and lagoon could subject the city to enforcement activities and financial penalties from the state or Regional Water Quality and Control Boards, and lawsuits from private citizens who are also authorized under the Clean Water Act to enforce the provisions on the NPDES permit.”
The agreement “provides that State Parks will indemnify the city for impairment to the quality of water that is discharged from the outlet pipe of the filtration system that State Parks is operating as part of the Lagoon Project.”
Members of the surfing community have repeatedly questioned whether the dewatering plan would be adequate to treat bacteria, including MRSA, that could potentially exist in layers of sediment at the bottom of the old lagoon channels that are being drained and dredged.
While some lagoon critics have indicated that they are encouraged that the revised dewatering plan appears more robust than the initial concept others continue to call for additional testing, including impartial third-party monitoring.
The dewatering plan and the indemnification agreement are available online at www.malibucity.com 

Circle K Owner Asks Council to Overturn Alcohol Ruling

• Claims Denial Was Unsubstantiated

BY BILL KOENEKER

MMK Enterprises, Inc., the owner, of the Circle K convenience store located at 21216 Pacific Coast Highway is appealing the planning commission's decision to not allow the store to sell beer and wine.
The city council is scheduled to hear the appeal at its regularly scheduled meeting next week on July 23.
The planning staff is recommending the council deny the appeal and also deny the Conditional Use Permit for “the sale of beer and wine for offsite consumption as an accessory use to the existing Circle K convenience store.”
The proposal was rejected by the planning commission on two separate occasions.
Commissioners were apparently swayed by public opinion that there were already too many outlets where alcoholic beverages can be obtained along that stretch of Pacific Coast Highway.
The appellant, who is represented by Schmitz and Associates, contends in an appeal letter that the basis for denial on the grounds that there are a concentration of too many businesses selling alcohol for off-site consumption is not legal and cannot be implemented by the municipality.
“The city may not deny the [Conditional Use Permit] on the basis of ‘undue concentration’ or ‘saturation’ as it is preempted from making such a finding,” wrote Schmitz and Associates representative Chris Deleau.
However, the staff counters that in 1995, the state amended the code to require ABC  “to deny an application for a liquor license if issuance of that license would result in or add to an undue concentration of liquor licenses.
“Undue concentration is defined as occurring when the premises of the proposed license is located in an area that has 20 percent more reported crimes (which is classified as a high crime reporting district) than the average number of reported crimes for the reporting district as a whole.
“On June 28, 2012, ABC staff confirmed that the subject property is located within a high crime reporting district (District No. 1017).”
The appeal letter also stated, “The planning commission's finding that the proposed use would not be compatible with land uses presently on the subject property and in the surrounding neighborhood was not supported by substantial evidence in the record,
The staff response stated, “The commission considered the mix of uses in the area, the configuration of the lot and its primary use and found that the  request could not be supported based upon the use's incompatibility with the land uses in the surrounding neighborhood.
“The appellant offered to include conditions of approval, which would require that the property owner retain a private security company to patrol. These self-imposed conditions were then reiterated by the appellant in his presentation to the planning commission, however the commission determined that these measures were simply not enough to ensure that the sale of beer and wine would be compatible with the existing surrounding uses in the neighborhood.”
The appellant also insists the planning commission's finding that the proposed use would be detrimental to the public interest, health, safety, convenience or welfare “was not supported by substantial evidence in the record.”
The staff response is that the planning commission heard the matter twice and the commission “considered all evidence presented and concluded that the request would be detrimental to the public interest, health, safety, convenience or welfare.
“The planning commission determined, as it had previously in 2007 under the original CUP application, that an undue concentration existed and approval of the CUP would be detrimental to the public interest, health, safety, convenience and welfare of the City of Malibu.”
The appellant also contends the planning commission's finding under Section 4 of the resolution (inconsistency with General Plan Land Use Plan Policy 4.1.5) and its basis for denial on such grounds is unlawful and inappropriate.”
The staff responded by saying the appellant is incorrect. “All CUPs must be consistent with the General Plan. The Malibu Municipal Code must also be consistent with the General Plan, but regardless, the specific implementation measures must be complied with.
“General Plan Land use Policy 4.1.5 states ‘the city shall prohibit undue concentration of businesses which sell alcohol for offsite consumption.’ To implement this policy, the city shall pursuant to Land Use Implementation Measure 73, require a conditional use permit for sale of alcohol for offsite consumption. An application must comply with the zoning ordinance and be consistent with the General Plan in order to be approved.”
In one instance, according to the appellant, the city "expressly found that General Plan Land Use Policy 4.1.5 could not be utilized as a means to properly regulate the number of establishments of the offsite sales of alcoholic beverages, the planning commission subsequently approved the other listed CUP applications for similarly situated properties/applicants without applying LUP Policy 4.1.5.”
The appeal letter contends that very policy was used to deny a permit for  Circle K
That violates the state Constitution, according to Deleau, who added that it also violates the applicant's equal protection and due process afforded it.
There is another basis for the appeal, according to Deleau, who added.
“The record reflects a clear and direct bias against the applicant and its application based upon the fact that the sales location is a service station. The applicant contends that the denial of its CUP was discriminatory and in violation of this provision of law [and] that the commission's decisions were politically motivated and not factually supported,” the appeal letter goes on to state. 
The commission hearing was for an application for a conditional use permit to allow the offsite sale of alcoholic beverages as an accessory use to the existing uses of the convenience store.
In May 2007, an application was received by the planning department for a CUP for store use, which included a proposal to sell beer and wine as well as the interior remodel of the existing service station.
At that meeting, commissioners heard from homeowners, attorneys and others who protested the opening of another location for the sale of alcoholic beverages given the proximity of so many other outlets in the area.
A second meeting was no different when some of that same group of critics came back to the commission to show opposition.
Critics have vowed to show up again at the upcoming hearing. “We are going to be there. We are not going to let them get away with this,” The staff carried out a reevaluation of the new CUP application and “determined that onsite conditions, which led the planning commission to the aforementioned conclusion, have not changed since 2007.”
During his presentation before the commission, the applicant's consultant Don Schmitz said they were willing to accept almost any conditions the commission or the public would want to impose for approval of the permit.
The applicant also unsuccessfully argued the sale of beer and wine “will be an incidental sale item to the nearly 5000 goods currently offered for sale at the market.”

USFWS Doubles Designated Critical Habitat for Threatened Shorebird

• Zuma Beach and Malibu Lagoon Are Both on New List for Pacific Coast Western Snowy Plover

BY SUZANNE GULDIMANN

The U.S. Fish and Wildlife Service has announced that it will double the amount of critical habitat area for the threatened Pacific Coast western snowy plover, a small shorebird that received federal protection in 1993 after extensive habitat loss left the species on the brink of extinction, with a population of just 1500 birds.
The revised habitat designation came in response to a lawsuit filed by the Center for Biological Diversity, which contended that the Bush Administration illegally reduced the shorebird's critical habitat from 19,474 acres granted in 1999 to 12,145 in 2005.
“Approximately 24,527 acres of critical habitat for the Pacific Coast WSP in Washington, Oregon, and California, fall within the boundaries of the critical habitat designation,” a press release from the FWS states. 
“This revised final designation constitutes an increase of approximately 12,377 acres from the 2005 designation of critical habitat for the Pacific Coast WSP.”
Two areas of critical habitat are located in Malibu: one at Zuma Beach; and a smaller area at Malibu Lagoon.
At Zuma Beach, the critical habitat “extends about three miles north along the coast from the north side of Point Dume to the base of Trancas Canyon,” according to the FWS report.
“This unit encompasses approximately 72 acres of Los Angeles County lands, and 1 acre of State land. This unit was occupied [by Pacific Coast WSP] at the time of listing and is currently occupied. It is an important wintering area with up to 213 Pacific Coast WSPs recorded during a single season over the last seven years.”
According to the FWS, Zuma includes several biological features “essential to the conservation of the species,” including “areas of sandy beach above and below the high tide line with occasional surf-cast wrack supporting small invertebrates and generally barren to sparsely vegetated terrain.”
The report notes that “the physical or biological features essential to the conservation of the species may require special management considerations or protection to address the main threats from nonnative vegetation, human disturbance, development, horses, and pets. Control of nonnative vegetation and enforcement of existing human-use regulations are needed to ensure the suitability of the unit. With time, we anticipate that the lower portions of this unit will be inundated by sea-level rise associated with climate change.”
Zuma, which is operated by the County of Los Angeles Department of Beaches and Harbors, is one of the most highly visited parks in Los Angles County and is groomed daily with mechanical beach-cleaning equipment that has been documented to negatively impact Pacific Coast WSP in research conducted by the FWS. Some researchers have begun to call for “islands” of “ungroomed” beach to conserve coastal strand ecosystems.
At the Malibu Lagoon, 13 acres will be designated critical habitat. The area extends “about .5 mile north along the coast from approximately 300 feet north of the Malibu Pier to Malibu Point,” the report states. “Approximately nine acres are within Malibu Lagoon State Beach. The ownership of the remaining four acres are not known; however, the State likely has jurisdiction over these lands.”
Plover use a “run-pause-snatch” technique for hunting kelp flies and other insects and invertebrates, snatching them out of the air or off the surface of the sand. Surf wrack is essential for their survival as a source of food and shelter for their nests.
According to the report, “this unit was occupied at the time of listing and is currently occupied. It is an important wintering area with up to 67 Pacific Coast WSPs recorded during a single season over the last seven years.”
Volunteers from the Audubon Society for the past four years have set up what is described as “symbolic fencing” at Malibu Lagoon, to increase awareness of the small shorebirds.
The Malibu Lagoon area also comprises “areas of sandy beach above and below the high-tide line with occasional surf-cast wrack supporting small invertebrates and generally barren to sparsely vegetated terrain.” A small portion of the newly designated critical habitat falls within the construction zone of State Parks’ Malibu Lagoon Restoration and Enhancement Project. Construction project spokespersons stated last week that “The Army Corps of Engineers has initiated a new consultation with USFWS to determine whether these areas actually do provide the constituent elements of critical snowy plover habitat. Until then no work is occurring within [this] area.”
State Parks is expected to make the case that the area, which appears to have included a portion of the one of the channels prior to demolition, was not and is not part of the shorebirds’ preferred habitat.
The drainage pipe for the dewatering portion of the project, which is reportedly scheduled to begin later this week is located outside the western boundary of the critical habitat, according to a project’s spokesperson.
The plover, which gets its name from the medieval French word “pluvia,” or rain, a rare success story, recovering from 1500 birds in 1993 to more than 3600 today, but wildlife experts warn that its future is still uncertain.

City Council to Decide on Allocating Money for ASBS

•  Funding also Required for NRDC Project

BY BILL KOENEKER

The Malibu City Council is poised at its meeting next week to spend $110,000 from its undesignated general fund to be used to conduct a monitoring program along approximately the 11.7 mile coastline along the city’s western boundary designated as an Area of Special Biological Significance or ASBS.
The protected area declared by the state an ASBS refers to the diversity and richness of biological resources found in those waters along that part of the city’s coastline.
Specific regulations or what the state calls “special protections” are mandated for the ASBS. One of the “special protections” afforded the ASBS is that no discharge of storm water is allowed into the ASBS.
The State Water Resources Control Board notified the city in 2004 about the prohibition and the city was and is required to request an “exception” to be able to continue the discharges, according to municipal officials.
Three years later, the SWRCB invited the city to participate in an ASBS regional monitoring program in exchange for reduced requirements under the then pending “special protections.”
Those regulatory conditions called “special protections” were adopted by the SWRCB on March 20, 2012, according to city officials.
The regional monitoring program included water quality monitoring and biological resources studies in the Southland with various participating agencies sharing the costs.
In 2008, the council had allocated $98,300 to participate in the program.
Those studies, which were administered by the Southern California Coastal Water Research Project put the participating entities including the city at the forefront of the effort to assess the biological and water quality resources in the ASBS, according to municipal officials.
“This information led to the state making a decision to grant the exception. Participation in the 2008 program also reduced the number of required storm events that the city will need to monitor for the special protection,” wrote Assistant City Manager Reva Feldman, in a staff report to the city’s Administration and Finance Subcommittee at a special meeting before the council session. The A&F subcommittee gave the matter its consideration since it involves an allocation over $25,000.
“The city must comply with state adopted ASBS special protections requiring that it conduct an individual program of water quality monitoring and biological assessments. Alternatively, the city may participate in a regional program that affords a reduced suite of monitoring requirements,” added Feldman, who noted the city could decide to continue to participate in the regional monitoring during a 2013 study.
Feldman indicated, in her report, that agencies “will have to arrange for individual contracts of collections and transport samples to the approved participating laboratories and for laboratory analyses, but SCCWRP will compile and process all of the data into a regional report.”
Now a deadline approaches, agencies such as the city must notify the state by Aug. 1 of whether those dischargers will conduct their own monitoring program or participate regionally.
Council members will be given the choice, not participate in the 2013 regional monitoring program which will increase the city’s costs for compliance with the special protections or participate in the programs which “will demonstrate the city’s commitment to collaboration, complying and protecting the ASBS.”
Why so much emphasis on the ASBS? The allegations by the Santa Monica Baykeeper and the Natural Resources Defense Council about the city violating the Clean Water Act included accusations the city fouled the waters of the ASBS.
Consequently, city council members are also looking at spending $113,000 for additional design services for the Broad Beach biofiltration project as required by the Natural Resources Defense Council/Santa Monica  Baykeeper legal settlement.
The adopted budget for fiscal year 2012-2013 includes $2,097,462 for the biofiltration system. Addtionally design services are needed as required by the settlement agreement between the city and NRDC and Baykeeper. An appropriation of $113,000 would come from the undesignated reserve fund. The projected fund reserve would drop down to $9.7 million by June, 30, 2013.
The funding for the Broad Beach project is coming mainly from a grant from the Safe Drinking Water, Water Quality and Supply,  Flood Control, River and Coastal Protection Bond Act of 2006 (Prop 84).
As a result of finalizing the agreement with the enviro groups, the city agreed to install biofilation improvements at an additional drain along Broad Beach. “This drain was not included in the current design contract
The current project called for eight locations along the beach. The cost to design the additional biofiltration improvements and the six monitoring stations is $113,000,” Feldman concluded in her staff report.

Coastal Commission Conservation Voting Analyzed by Sierra Club

• Some Malibu Agenda Items Play Role in the Study that Found a Drop In the Score

BY BILL KOENEKER

Sierra Club California recently announced the release of its 2011 California Coastal Commission Conservation Voting Chart.
The chart produced by the Sierra Club and the League for Coastal Protection is used to measure the pro-conservation scores of the commission as a whole and individual commissioners.
The 2011 report examined 23 separate votes or agenda items (several of those items were taken from Malibu agenda items), which were analyzed in consultation with coastal conservation activists based on their likely impact on coastal resources, their potential to set important statewide precedent and whether the project employed one or more paid lobbyists, according to the report.
Overall, the commission score dropped from 61 percent in 2010 to 56 percent in 2011.
The coastal panel reviews about a 1000 projects per year and approves most of them, according to the Sierra Club report.
“This voting chart is designed to highlight only the most important votes, where the environmental stakes are high, including several major issues of concern to the California environmental community,” the report notes.
For example, The Edge’s project high in the hills above Sweetwater Mesa was analyzed for how commissioners voted as well as the Malibu Valley Farms revocation hearing, approval of the City of Malibu’s LCP amendment dealing with lights at the high school and approval of the Los Angeles County Department of Public Works repair and restoration of lower Topanga Creek were included in the review.
In the instance of the night lights at the high school, the report noted: “During the 2009 deliberations, the commissioners described the detrimental effects high intensity night lighting had on the coast and on the wildlife that thrives there.
“During the 2011 deliberations, commissioners who had vigorously argued against nighttime lights in 2009 sat silent. New commissioners declared that this neighborhood in Malibu that lies 1500 feet from Zuma Beach and is defined by the absence of any street lights, sidewalks or curbs, where nighttime lighting of tennis courts is prohibited, was suburban and suitable for nighttime lights.”
In the case of lower Topanga Creek, the report insists, “Commissioners disregarded the environmental community’s pleas for a long-term management plan consistent with the larger restoration plan in this area, and approved indefinitely the myopic plan [sought by the county].”
Commenting on the Malibu Valley Farm revocation hearing, the report states, “Commissioners indicated that they had to rely on the staff’s recommendation to deny the revocation since most were not on the commission during the initial hearing on the permit. Staff’s out-of-the-blue claim in its report that the local zoning approval requirement had been waived is currently being litigated in the Los Angeles Superior Court.”
The commission denied the application sought by The Edge and his phalanx of attorneys and lobbyists for five mansions on a ridge high above Sweetwater Mesa.
 “This project did not conform to several important sections of the Coastal Act. The matter was complicated by the fact that the applicant hired too many lawyers and lobbyists and that those consultants and experts sacrificed their clients’ well-established environmental credentials in their illogical insistence on novel private property rights issues.”
Some of the key findings include:
The average conservation score for the entire commission dropped from 61 percent in 2010 to 56 percent in 2011. This follows a drop in 2009 from 66 percent.
Of the six “public” members, former Commissioner Sara Wan, who resides in Malibu, had the highest conservation voting score at 75 percent (down from her 2009 rating of 83 percent and her 2010 rating of 80 percent).
Commissioner William Burke in 2011 was absent eight times for the votes scored in the chart. “This represents more absences than any other commissioner based on the votes scored,” the report notes
The Sierra Club concludes there is still much to be valued by ongoing public involvement “to make sure the commissioners adequately and correctly review proposed projects against the California Coastal Act criteria.”
“With an average conservation voting score of 51 percent for the Coastal Commission over the past 24 years, Sierra Club California and activists from our eight coastal chapters are committed to continuing to fulfill this role along with our coastal allies.”

County Coroner’s Toxicology Test Results Due Soon—Expected to Confirm that Katie Wilkins’ Death Was Result of Heroin Overdose

• LASD Still Lacks Answers to Key Questions about the Night She Died at Family Home in Malibu

BY ANNE SOBLE

Toxicological test results are expected to confirm next week that Malibu resident Katie Wilkins died from a heroin overdose. The official results will not be announced until after the Department of Coroner’s Chief Medical Examiner Lakshmanan Sathyavagiswaran reviews the final report, but sources close to the case say they do not expect any surprises.
The Los Angeles County Sheriff’s Department currently has a security hold on all DOC information related to the case, but LASD Homicide Detective Tim O’Quinn, the lead investigator on the Wilkins case, said the hold will be pulled as soon as the official results have been reviewed.
Katie Wilkins, 25, was an attractive Malibu High School graduate who graduated with honors from the Art Institute of California last year and was excited about beginning a career in graphic design.
Those and any other aspirations came to an end three months ago on April 28, when Wilkins’ brother, Steve Wilkins, discovered her lifeless body on the floor of the garage at the family home in east Malibu.
Toxicology results explain the technical cause of death but LASD Detective O’Quinn said they do not address some of the most important questions related to Wilkins’ death.  He said, “We still do not have access to these answers because we do not have [access] to the person who might be able to provide them.”
Surveillance tape and fingerprint tests confirmed that Christopher Benton, 27, an acquaintance of Wilkins, was at the family home the night she died, but O’Quinn said, “We don’t know what occurred there.”
The detective indicated, even though the print discovery would be enough to call Benton in for questioning, Ronald Lewis, the noted criminal attorney who is representing Benton told the LASD, “[He] will not allow his client to make any statement.”
Emails sent to Lewis requesting comment do not receive a response.
Benton is the son of Pepperdine University president Andrew Benton. He resides with the family in the official residence on campus, and reportedly has not been seen in public since late April.
O’Quinn said, “I am not tracking [Chris Benton’s] whereabouts as I have nothing to hold him on.”
O’Quinn has said there won’t be much to build a case against Benton unless the ongoing “investigation indicates that Benton purchased the narcotics and brought them to the house and/or injected [Wilkins]. That would be grounds to explore involuntary manslaughter charges.”
The investigator said, “This will not be a rapidly evolving case from this point.” He is still awaiting DNA test results to address the issue of possible sexual assault on the partially disrobed Wilkins, but added, “Past experience tells me those results are probably at least eight weeks away.”
Steve Wilkins echoes O’Quinn’s concern about not having access to Benton. “I have taken efforts to reach Chris unsuccessfully. Chris’s choice of actions since Katie died makes clear the knowledge that he was not a friend to Katie, so it’s unfortunate he took advantage of some of her last moments on this earth. Though knowing Katie, I’m sure she gave Chris something to think about and consider.”
Other members of the Wilkins family also continue to try to urge Benton to share whatever he may know with the LASD.
Some are even attempting to reach out to the broader Pepperdine community. Wilkins’ aunt Kathleen Cashatt recently wrote a letter to member of the Pepperdine Board of Regents Edward Yang, in which she stated, “I believe that Andrew Benton has acted selfishly for his and his own family’s benefit. He has encouraged and enabled his son, Chris, to hide from telling what he knows about the circumstances surrounding the death of Katie Wilkins.”
She wrote Yang, “Since [Andrew Benton’s] silence continues, it appears that his actions are condoned by the board. As a board member, I believe you have a moral and fiduciary responsibility to the university, the Church of Christ, and the community, to ensure that the president’s actions are ethical by Christian standards, virtuous, honest, truthful, and filled with integrity.”

Wednesday, July 11, 2012

State Parks Spokesperson Discusses Latest Lagoon Project Details

• Test Phase Has Commenced Dewatering Plan Still Requires Final Written Approval from CCC

BY SUZANNE GULDIMANN

Testing has commenced for the dewatering phase of the Malibu Lagoon Restoration and Enhancement plan. Pumping will begin as soon as the dewatering plan is approved on paper by the California Coastal Commission, State Parks Angeles District Supervisor Craig Sap told the Malibu Surfside News.
“We understand that the scrutiny is very high,” Sap said. “At State Parks we have nothing to hide.”
Sap met last week with a group of concerned residents that included Mayor Pro Tem Lou LaMonte, water quality activist Wendy Werner and a dozen longtime surfers, including veterans Bill Parr and Bill Boyle.
“The surfers brought historic slides [of the lagoon and creek]. They were concerned about 20-year storm events,” Sap said. “They had concerns about interpretive panels that could end up on the beach [during a storm].”
Sap said that the steel and concrete interpretive features will be installed at the end of the construction process and that the contractors will have “some leeway” with the placement.
A concrete and steel shade feature designed to evoke a “kelp forest” was another controversial feature.
Sap said that the structure, previously described as “umbrellas” is actually more a “ramada.” “It was made to sound like a telephone pole with a mushroom cap, but that's not the case,” Sap said.
“It will provide thin, dappled light coming through,” Sap explained, adding that the feature was included to provide shade for visiting school children and that planting trees for shade in the area adjacent the parking lot is not an option.
“It’s not a native area,” Sap explained. “It’s a more developed area.” Trees would take a while to get to the right height and would not be sustainable. The root system would be disruptive if they were tall enough to provide shade.”
 “I’ve told everyone who has opposed the project that I appreciate what they are doing,” Sap said. “I rely on them to be protectors, future docents. They are passionate and I appreciate that.”
Werner told The News that the surfers also questioned the decision to place the trunks of several sycamore trees removed during the construction process in the reconfigured channels. “State Parks sees them as fish habitat. We're concerned that they are going to end up in the surf zone,” Werner said.
Werner said that the revised dewatering plan was an improvement over the previous plan.. “They did move the dewatering pipe off the sand and into the mean high tide line. The have a retention area and won't be dewatering everything at once.
“There are now four days of monitoring instead of three,” Werner said. “It should be tested two times a day until it's consistent, but at least they added some testing.  We should have independent testing. Maybe the city council could dedicate the $25,000 they set aside to study the project for monitoring,” she suggested.
The Surfers Coalition to Save Malibu Lagoon also continues to have water quality concerns. “We are all still quite concerned with the disturbance of the muck that has moved around from one end of the lagoon to the other. We are anxiously waiting the results of the 48-hour testing of the equipment,” an email from the group states.
According to a Santa Monica Bay Restoration Commission press release, “A lot of good things are happening at the Malibu Lagoon. Hundreds of small mammals and lizards were relocated to safe habitat on site, thanks to the diligent work of our biologists and equipment operators. The vegetation has been largely removed, except for plants around six duck nests that are being protected until the young have fledged and the mothers no longer use the nests. Five other nests that were also protected onsite, where young successfully fledged, have already been abandoned, with no impacts to the birds that were using them.”
According to the report, “Thousands of cubic yards of soils have been moved from the lagoon channels, and we have found virtually no life in them. There were very few clams, and no worms, insect larvae, or any of the aquatic invertebrates that we would normally expect to see living in a wetland. As expected, the channel sediments were nearly devoid of fauna due to poor conditions.”
The press release also states that the US Fish and Wildlife Service has issued “a critical habitat designation for the endangered western snowy plover, which includes a small portion on the southeast corner of Malibu Lagoon State Park.”
According to the SMBRC press release, “The Army Corps of Engineers has initiated a new consultation with USFWS to determine whether these areas actually do provide the “constituent elements” of critical snowy plover habitat. Until then no work is occurring within these areas.”

Planning Panel to Hear MHS Plan

• Light Pollution Impact Expected to Be Controversial

BY SUZANNE GULDIMANN

The City of Malibu Planning Commission is scheduled to hear an application from the Santa Monica Malibu Unified School District for permits and variances for the proposed Measure BB Malibu Middle and High School Campus Improvement Project.
The plans call for the demolition and construction of a new classroom-library-administrative building totaling 20,274 square feet of net new building area; approximately 12,509 square feet of interior renovation and modernization of existing classrooms; a new 150-space lighted parking lot; a reconfigured 119-space lighted parking lot with an onsite roundabout; a reconfigured 61-space lighted parking lot; a new student drop-off and pick-up lane; two new unlit tennis courts; new outdoor common areas; new fencing, landscaping, retaining walls, and grading; the relocation of the existing equestrian trail; upgrades to the onsite wastewater treatment system and drainage; and the renovation of existing facilities and infrastructure, according to the staff report.
A request for Conditional Use Permits “for the operation of a public educational institution and the expansion of more than 500 square feet in the Institutional zone; Variances for grading in excess of 1000 cubic yards, structures on slopes steeper than 2.5 to 1, impermeable coverage over 25,000 square feet; height up to 28 feet for the new administration building; a 50 percent reduction in the required front yard setback; and a permit for the demolition of the existing administration and library buildings are included in the application.
The final environmental impact report for the project identified several unmitigatable negative impacts that would result from the proposed project, including significant light pollution from the new and improved parking areas.
The EIR concludes that the members of  Santa Monica Malibu Unified School District Board of Education, none of whom reside in Malibu, “weighed the benefits of the proposed project, including specific economic, legal, social and technological benefits, against the unavoidable aesthetics and air quality impacts and determined that the identified benefits outweigh the unavoidable impacts. Accordingly, a Statement of Overriding Considerations was adopted by the board.”
Observers say that many Malibu Park residents are expected to voice views that differ substantially from those of the board on the issue of light and air pollution.
The staff report is available online at www.malibucity.org The meeting is scheduled for Tuesday, Aug. 7 at 6;30 p.m. at Malibu City Hall, 23825 Stuart Ranch Road.