Malibu Surfside News

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

Wednesday, March 27, 2013

City Council Says MTC Allegations of Brown Act Violations Founder

• Self-Appointed Political Watchdog Organization Indicates Court Action May Follow Verbal Challenge

BY BILL KOENEKER

Malibu attorney Frank Angel, representing the Malibu Township Council—the community’s six-decades-old civic group, asked the Malibu City Council Monday night to cure what he called were violations of the Brown Act by “pushing the reset button.”
“We urge you to do the right thing tonight and take corrective measures we recommended in our Brown Act demand letter. Start anew on a clean legal slate,” he said. “If you do take a correction, there is no admission of a [violation].”
However, City Attorney Christi Hogin, in her staff report had recommended the city council, “decline to cure or correct in response to MTC’s allegations of Brown Act violations and direct a response letter to be sent to MTC after the mayor executes it.”
The Malibu Township Council, the oldest civic group in the coastal city, issued a formal demand citing violations of the Brown Act, asking the city council to nullify its action on Jan 14 directing the city attorney to negotiate a swap of Charmlee Wilderness Park for the 83 acres of Malibu Bluffs Park currently owned by the state.
The demand, in a form of a letter to the city clerk, is the first step in MTC filing a lawsuit for a judicial determination that the council’s actions setting in motion the land swap were taken in violation of the Brown Act’s open meeting requirement.
Angel said his client has directed him to file for judicial review as soon as he receives the letter from the city.
Monday night, after Angel had made his presentation, Hogin tersely replied, “I listened carefully to what Mr. Angel said, and I have not changed my recommendation.”
The city on Tuesday issued a press release that quoted Mayor Lou La Monte, who was not at Monday night’s meeting and is out-of-town as saying, “Frank Angel was way off base. The Brown Act does not prohibit two council members from exploring ideas and developing proposals to take to the whole council at a regular meeting.”
However, that clashes with SMMC executive director Joe Edmiston’s assertion that those meetings produced a “deal” before the full council ever met. The press release goes on to say the accusation of Brown Action violations are “baseless.”
Another line in the press release reveals what MTC members are calling “Christi Hogin’s Secret Memo.”
“The facts show that the city council was briefed in writing by the city attorney and that a staff report was released to the public well in advance of the Jan. 14, 2013 meeting. Because the Brown Act does not prohibit staff briefings or council members acquiring knowledge about an upcoming agenda item, the city council concluded last not [sic]  the MTC accusations are without merit.”
The MTC wants to see that memo that might figure into upcoming judicial review of the matter.
Council members voted 4-0, with Mayor Lou La Monte absent, to decline to cure or correct in response to MTC allegations. The majority of the council remained tightlipped and made no comments on the proceedings.
Councilmember John Sibert said, “We were notified by the city attorney prior to Christmas that there had been a meeting and what was discussed. Other than that, I spoke to no one else about it, the staff or other city council members. Certainly not to Mayor La Monte or Mayor Pro Tem House.”
In her staff report, Hogin had said, “After reviewing the tape of the Jan. 14 meeting,  reviewed the minutes from the meeting and considered carefully the arguments and information presented by MTC. After careful examination, I conclude that no violation of the Brown Act occurred,” wrote Hogin in her staff report.
Angel said the city attorney has reacted with “strong words, but not strong arguments,” to the cure and correct demand. “Just because the city council discussed the parkland swap and took a vote on Jan. 14 in an open meeting does not magically wipe out earlier official business transacted in secret,”
“Finding out about a meeting to discuss the proposed parkland swap is the same as finding out about the proposed swap itself. Especially considering that the swap proposal was put forth by Mayor Lou La Monte and Councilwoman [Joan] House, acquiring knowledge of a meeting to discuss their proposal and acquiring knowledge of their positions,” wrote Angel in the letter.
“MTC is incorrect. The Brown Act does not prohibit two council members from developing a proposal to present to the city council at an open and public meeting and the Brown Act is not violated when other council members become aware that the agenda item is being prepared for an upcoming meeting,” responded Hogin.
Angel countered Monday night, “While the Brown Act does obviously not prevent a quorum or a majority of council members to know facts about an item before it is discussed at a public meeting,
contrary to he city attorney, the Brown Act expressly prohibits her or for that matter, any other staff members from conveying to other council members, in this case, to the three council members who did not themselves meet Mr Edmiston to negotiate on behalf of the city at which the swap was discussed violates the Brown Act.”
Hogin responded. “These facts are both true and do not constitute a violation of the Brown Act. MTC’s novel theory is that the Brown Act is violated once a third councilmember ‘acquires knowledge’ about a pending matter of city business if two other council members are also aware of the item,” the city attorney said. “The Brown Act is simply not aimed at regulating thought at that level. The purpose of the Brown Act is to have the city council conduct its deliberations and take its actions openly. It does not take much scrutiny to reveal the absurdity of MTC”S position,” Hogan noted.
Angel replied, “The city attorney confuses reasonable inferences of a collective concurrence by a majority of the council members to place the swap on a future council agenda or of an agreement to agree to move in the direction of the swap, as she puts it, ‘rank speculation…divorced from fact’ of conduct violative of the open meeting law.  For a court, a reasonable inference of conduct that constitutes a Brown Act violation is evidence of a Brown Act violation. Reasonable inferences are based on relevant facts, often referred to as ‘telling’ facts.”

Council Members Are Reprimanded for Meeting on Important Jewish Holiday

• Previous Reschedulings Done to Create Three-Day Staff Holidays

BY BILL KOENEKER

Malibu attorney Frank Angel took on a second cause at Monday’s city council meeting when he stepped  up to the posium during the public comments segment and, saying that he was speaking on his own behalf, chastised municipal officials for holding a meeting on the first day of Passover.
“Many Malibuites cannot attend tonight because they celebrate the first day of Passover. Because they are Jewish, by holding your meeting this Monday, you force them to choose between, on the one hand, their constitutional and Brown Act rights to petition government for the redress of grievances and attend council meetings, and, on the other hand, their constitutional right to free exercise of their religion,” he told council members.
Angel said the municipal code calls for the regular meetings of the council to be held on the second and fourth Mondays of each month or if any such day is on a holiday, then the meeting scheduled on such a day should be held in the council chambers on the next succeeding day which is not a holiday.
“I find it insensitive, to say the least, to schedule a public meeting on the night of the first day of Passover when your code suggests,” the attorney added.
“I don’t mean this with any sectarian tilt. Personally, I believe the same holds true if Laylat al-Qadr, the night of power, fell on tonight,”Angel said.
The council was told the city always recognizes a half day on Christmas Eve and Christmas day, which are the only religious holidays the city respects.
“It is closed for business whenever these two days fall on a weekday? How is that? You favor Christianity over the other four major world religions, Judaism, Islam, Buddhism and Hinduism? Or is this endorsement imposed on you by city bureaucracy impervious to Malibu’s special cultural, intellectual and religious diversity? “Just because the majority of Malibu’s voters or residents may be Christian does not justify contempt of the First Amendment rights of the minority,” Angel said. “It would have been so easy to [to change the date].”
Councilmember Laura Rosenthal, who said she is the only Jewish person on the council, defended the city’s actions saying Passover is not a national holiday.
“Christmas is a national holiday. There are two nights of Passover. There was no purpose to exclude anybody. The Jewish holiday changes each year,” she said.
She concluded by saying she was not sure if a majority of Christians turned out to be the majority of voters in Malibu.
Councilmember Joan House said she had received a letter about the scheduling of the meeting on Passover.
“We missed Passover, and I explained that it would be nice if someone gave us a heads up,” she answered.
“I think we would have moved it. We have done so in the past. It slipped through the cracks,” she concluded.
No other council members commented on the Angel remarks.
At the outset of the meeting,  House, who was acting as mayor explained how few city officials were on the dais.
She said Mayor Lou La Monte could not attend the meeting because he was in Trinidad filming at night.
Councilmember John Sibert was in Mexico City and was attending the meeting by teleconferencing in a location there. He said at the outset of the meeting he was sick and did not know how long he would last.
House said City Manager Jim Thorsen was also sick, which explained his absence.
In 2012, the council meeting was changed from Monday night to Tuesday night on two separate occasions.
The regular meeting on May 28 was changed to May 29 and the November meeting on November 12 was moved to Tuesday November 13.

Four-Year Extension on La Paz Center Permit Being Requested by Developer

• Project Still in Loop at Other Agencies

BY BILL KOENEKER

The Malibu Planning Commission, at its meeting on Monday, April 1, will be asked to extend a coastal development permit and other entitlements for the Malibu La Paz commercial center for four years.
The staff recommendation is for granting the extension for the permits, a Conditional Use Permit to allow construction of a nearly 100,000 square foot commercial office and retail center.
“The applicant has requested a four year extension as this was the original length of time approved by the city council and due to the multiple agencies involved in complying with the conditions of project approval,” wrote city Principal Planner Stefanie Edmondson in a staff report.
“To date, the applicant has been working with the city and Caltrans on traffic mitigation measures and finalizing the wastewater treatment system working drawings. Additional time will be required to implement the traffic mitigation as well as submit the wastewater treatment system application to the State Water Resources Control Board and the California Department of Public Health for review and final permit approval.”
Edmondson indicated the project conditions and the zoning ordinance under which the approval was issued, have not significantly changed. Upon the planning commission’s approval of the time extension request, the approval set forth in the city council resolution will remain valid for four additional years.
In November, 2008 the city council approved two La Paz development entitlements. The first request was the .15 floor area ratio or FAR project for construction of 99,117 square feet of commercial office and retail uses. The second entitlement request was the .20 FAR development agreement project for a 100,000 square foot city complex. The .20 project provided the developer with an additional 12,941 square feet of commercial square footage and allocated 20,000 square feet to the city for a future city hall complex.
The applicant applied for both the .15 and the .20 projects since the .20 FAR entitlement required approval from the California Coastal Commission and could potentially be denied.
The CCC certified the required Local Coastal Program Amendment in June 2010. Subsequently, the .20 project is set to expire June 10, 2014.

MCRA Acquires 612 New Acres of Parkland in the Santa Monica Mountains

• South Side of Ladyface Mountain and Escondido Canyon Property Once Earmarked for ‘Yurt Resort’ Join SMMNRA

BY BILL KOENEKER

A 86-acre property located on Latigo Canyon Road in Upper Escondido Canyon, once slated for a hotel/resort complex comprised of yurts and other amenities, including swimming pools, tennis courts, fitness facilities and meeting rooms, was one of three major parkland acquisitions made by the Mountains Recreation Conservation Authority.
The resolution authorizing the acquisition was approved at MCRA’s February meeting.
The park purchase was announced last week by Los Angeles County Supervisor Zev Yaroslavsky.
The Latigo Canyon Road property was previously owned by Richard Weintraub, who along with Ron Goldman, wanted to build the upscale yurt resort in the canyon where there was once a nursery.
According to the Yaroslavsky, the county board of supervisors last week approved the MRCA acquisition of the property, which contains a creek, a stand of redwoods and alders and dense riparian cover on the undeveloped land made up of 34 separate parcels.
The purchase is being funded by what are called third district funds generated by Prop A, a measure approved by county voters in 1992 and 1996, according to the supervisor's office, which represents the third district.
In an irony that Yaroslavsky points out, the county had given approval for the yurt hotel and retreat before residents in the area were even aware of what was planned.
Yaroslavsky overruled staff and insisted the project needed an Environmental Impact Report.
At that time, the media reported that Weintraub purchased the land from Irwin “Red” Lachman, who had obtained many of the approvals.
Weintraub purchased the land with an approved building plot plan that went along with it for $1.45 million and planned to spend another $7 million to turn the bucolic canyon into a spiritual retreat for up to 400 people housed in the 95 yurt-like tent cabins.
After neighbors got wind of the plans and pending building permits, protests ensued. The supervisor’s office received a tremendous amount of pressure and a homeowners association hired attorney Frank Angel before the application was withdrawn.
Recently the land was offered on the open market for $8 million, until the government stepped in to purchase the acreage.
Some neighbors say they privately worry that the problems of access, parking and overuse of the canyon will disrupt their rural lifestyle much like the complaints that have surfaced from Winding Way homeowners, who say that lower Escondido Canyon is “being loved to death,” by the public creating immense parking problems on Pacific Coast Highway, access problems and littering.
“Have you been to the falls, lately?” asked one homeowner, who declined to give her name. “It is a trash heap. They say they don't have the money to take care of their parks they have, so why are they acquiring new parkland?”
Others expressed enthusiasm that the property, which was once home to the McCoy Christmas Tree Farm in the 1960s and '70s, owned by canyon pioneer Thurlow McCoy, who planted many of the non-native trees, will be preserved.
The purchase also includes the acquisition of 525 acres on the south side of Ladyface Mountain off of Kanan Dume Road in unincorporated Cornell, near Agoura Hills.
The distinctive mountain located at the top of Kanan has been on the Santa Monica Mountains National Recreation Area's priority acquisition list for many years. The 525- acres will protect almost the entire southern face of the mountain.
“In terms of interior, non-coastal acquisitions, there hasn't been anything this big in a long, long time,” said Paul Edelman, chief of natural resources and planning for MCRA, in a press release.
“Preserving the Ladyface Mountain property…means that a huge bloc of wildlife habitat will remain unaltered by development or other human activity. “It will always be there,” Edelman said. “It’s something we can count on.” The iconic views of the property, with its dramatic rock outcroppings, will continue to dominate the vista seen by those who travel along Kanan Dume Road.
“Beyond the unspoiled beauty of the landscape itself, placing the property under public ownership opens up vast new possibilities for how visitors will be able to use it,” Edelman said.
“It creates a trail opportunity that few people have ever even dreamed of,” he said. For the first time, he said, the Pentachaeta Trail in Westlake Village will be able to connect across Triunfo Canyon and into the heart of the mountains.”
“When this latest acquisition by the Mountains Recreation and Conservation Authority is completed, the vast majority of land around the mountain will be in public hands and immune to any such development proposals in the future,” the press release concludes.
The purchase of both properties, at a total cost of $8.3 million, is being funded by 3rd District funds generated by, among other sources, Proposition A.

Publisher’s Notebook

• Is There a Malibu Numbers Game? •

BY ANNE SOBLE

The Malibu blogosphere can be intelligent, witty and, on occasion, even reaffirm one’s faith in the species. But there are times when my email inboxes are so crammed to capacity that I have to selectively delete communications based on the subject line in order to pare the files down to a readable quantity.
At present, there are days when there may be as many as several dozen communications and cross-communications connected with aspects of California State Parks public policy and personnel and the ways that Malibu allegedly is being adversely affected by what are perceived as nefarious conspirings to obtain and benefit from local public policymaking.
Even though there are numerous card-carrying Bar members in the verbal fray, some of the digital discourse comes perilously close to allegations of manipulation of facts and law from which it appears that there are people who think that some Parks players in this game are benefiting financially. If numbers being bandied about are even approximately accurate, the financial benefit can reach the six-figure category.
That behavior in and of itself may be no different than what is acceptable as business-as-usual in the corporate world, but now more and more questions are being asked about people who appear to wear so many hats that they determine who is paid what and where those dollars come from.
There are also allegations that the admittedly already relatively ineffective checks and balances that are supposed to provide oversight on this flow of money by requiring public disclosure statements and other public access to accounting records are being openly ignored or misrepresented.
Journalists have some legal protections when doing this kind of detective work, but in this brave new world of citizen-journalism, these protections must be extended to citizens with the courage and time to take on governmental and non-governmental entities that might have lost their moral compass.
All of the Holmesian-like efforts—by journalists and citizens alike—need to be tempered by due diligence so there is no jumping to conclusions despite what might appear to be patently obvious indications of wrongdoing. If there are individuals abusing their place at the public trough, the time and patience spent developing a solid case will lead to accountability.
Persistent investigation may provide answers to what are still unasked questions. Too many people think there is much more to the State Parks resignations and other indicators of internal agency malfunction than has been revealed so far. The extent to which these circumstances have had an effect on Malibu policymaking should come out in the discovery process.

Sea Lion ‘Emergency’ Puts Pups at Risk and Taxes Rescue Groups’ Resources

BY SUZANNE GULDIMANN

Sea lions are an important part of Malibu’s marine ecology.
The rocks at Point Dume are home to a large colony of the marine mammals but residents and beachgoers throughout Malibu are often treated to the sight of sea lions sunning their fins as they float together in “rafts,” vying for a coveted spot on the rocks or body surfing the waves.
For most of the year, the California sea lion population is self-sufficient and robust, but this spring record numbers of sick and weak sea lion pups are becoming stranded on the shore, leaving marine mammal rescue organizations struggling to cope.
The Pacific Marine Mammal Center in Laguna Beach has declared the situation a state of emergency. The Marine Mammal Care Center at Fort MacArthur in San Pedro-where most Malibu-area rescues are sent for treatment, is also swamped with sea lions.
In Malibu, the California Wildlife Center’s marine mammal rescue team has been on almost constant call, responding to reports of stranded pups.
Malibu residents can help the rescue effort by reporting weak or sick pups to the CWC emergency line 310-458-WILD and by staying at least 50 feet away from the animal.
“One of the biggest problems we are experiencing is people are going right up to the animals, taking pictures, and stressing them out which forces them back into the cold water,” CWC spokesperson Victoria Hand told the Malibu Surfside News.
Hand described a rescue effort that reportedly failed because of spectator interference.
 “[The pup] was very underweight and coughing, but a couple refused to stay away from the animal and scared it back into the water after it was on the beach for three hours, and it was five minutes before the rescue team could get there,” she said.
Hand explained that it is a violation of the Marine Mammal Protection Act of 1972 to get too close, touch, pickup, feed or pour water on a marine mammal.
Hand says that dogs are currently a huge problem on Malibu beaches. In one recent incident on Malibu Road, a baby sea lion was apparently attacked by four dogs.
“It’s bad enough that they are starving, sick and cold; but then they have to contend with being attacked or frightened by dogs that are off leash, it just isn’t right,” she said.
An off-leash dog can  frighten, injure or even kill sea lion pups before the dog’s owner  has time to react.
Dog waste also impacts marine mammals. Research indicates that a number of bacterial infections, parasites and viruses, including the phocine distemper virus can be spread across species.
According to the Storm Water Center, one gram of dog waste can contain as much as 23 million fecal coli form bacteria.
Once hunted to the edge of extinction, California sea lions-Zalophus californianus-are the only species of the family Otariidae that is currently a conservation success story.
Since passage of the Marine Mammal Protection Act, California sea lions have rebounded, but their continued survival is precarious. Most other species are in decline, with less than 10,000 individuals, according to the Monterey Bay Aquarium.
As anyone living within a few miles of a sea lion colony knows, California sea lions are noisy, playful and inquisitive. They like to investigate surfers, swimmers and divers.
Adult sea lions are powerful and equipped with formidable teeth but attacks on humans are extremely rare and there are even anecdotal reports of sea lions saving distressed swimmers from drowning.
Sea lions have external ear flaps, strong, long front flippers and can use all four flippers to “walk” on land, unlike seals, which have limited mobility out of the water.
Males can grow to be eight feet in length and weigh up to almost 800 pounds, females are smaller, rarely weighing more than 240 pounds.
The species eats fish and squid, including the market squid that also attract  commercial  fishing boats to Malibu in the fall. Sea lions can hold their breath for more than 15 minutes and are spectacular swimmers, reaching speeds of up to 22 mph, according to the Monterey Bay Aquarium.
In the wild, California sea lions have a life span of 10-15 years. Individuals in captivity have lived to be more than 35.
Sea lions sun themselves to help regulate their body temperature and avoid becoming hypothermic in cold water.
Marine mammal rescuers speculate that the pups that are coming ashore are not able to maintain their body temperature and are stranding themselves in an effort to warm up. However, most are also seriously under weight and appear weak.
 Pups are born during the summer. The animals that are currently in distress are less than a year old and have few defenses other than attempting to blend in with rocks and be unnoticed.
All of the organizations dealing with the sea lion crisis depend on contributions. More information on the Marine Mammal Care Center is available at www.marinemammalcarecenter.org or 310-548-5677, the Pacific Marine Mammal Center's website is www.pacificmmc.org, more information on the California Wildlife Center is available at www.cawildlife.org
Sea lion pups in distress can be reported to the CWC at 310-458-WILD (9453). Details on the exact location of the animal and its size and apparent condition help emergency responders.

Malibu Group Campaigns for Sharks at CITES

BY SUZANNE GULDIMANN

Members of the Malibu-based ocean advocacy organization Sea Save Foundation recently participated in CITES—Convention on International Trade in Endangered Species of Wild Fauna and Flora, an international agreement between governments, which convenes every three years to attempt to ensure that international trade in specimens of wild animals and plants does not threaten their survival.
The conference took place in Thailand earlier this month and resulted in a landmark victory for sharks and manta rays.
The oceanic whitetip shark; three species of hammerhead shark-scalloped, smooth and great; the porbeagle shark; and the manta ray were added to Appendix II of the CITES treaty.
While the decision does not ban or restrict trade in these species, all 178 treaty countries will now be obligated to regulate and monitor international trade.
This was Sea Save’s first time at CITES, Sea Save founder Georgienne Bradley told the Malibu Surfside News. “We were invited to accompany the U.S. delegation,” Bradley said.
“There was a lot of debate but the science was sound. The agreement is due to be ratified on Thursday. It’s a real victory for sharks and manta rays.”
Bradley said that an estimated 100 million sharks are killed each year for their fins, which command high prices in China where they are the key ingredient in shark fin soup, a luxury increasingly in demand with China’s emerging middle class.
 “[Sharks] are being hunting to extinction to meet the demand for shark fins,” Bradley said. “Germany has been trying for nine years—three sessions of CITES to get the porbeagle shark on the list.”
“It’s putting unsustainable pressure on shark species,” she said. We’ve had a significant loss of marine megafauna. This is important. It’s critical international legislation that will raise awareness, as well as change international law to protect these species.”
Bradley added that Interpol and other international and national authorities will monitor any international trade.  Populations will be carefully studied and sanctions will be applied.
Bradley said that the celebratory mood following the CITES decision is tempered by the fact that sharks will continue to face increasing pressure from over fishing as long as the demand for shark fins continues to grow.
More information on the Sea Save Foundation is available at www.seasave.org. The new additions to CITES can be found at www.cites.org

Report Recommends Major Reorganization for Troubled Parks Department

• Proposal to Hand 130 of the State’s 280 Parks Over to ‘Other Entities’ Is Already Generating Heated Discussion

BY SUZANNE GULDIMANN

A controversial independent report issued by the Little Hoover Commission on the California State Park System paints a picture of a department that is out of touch, out of date, inflexible, uncooperative and increasingly unable to adequately manage and maintain its holdings.
The Little Hoover Commission, formally known as the Milton Marks "Little Hoover" Commission on California State Government Organization and Economy, is “an independent state oversight agency that was created in 1962 with the mission to investigate state government operations and—through reports, recommendations and legislative proposals - promote efficiency, economy and improved service,” the commission's website states.
The commission's report on the parks system identifies “several chronic conditions that threaten state parks with continued neglect, deterioration and a return to closures if not addressed:.”
According to the report, “ The Department of Parks and Recreation can't generate enough revenue on its own to replace continual reductions in taxpayer support; the current model of a highly centralized state-run park system is obsolete; the department’s staffing structure is ossified; bond borrowing has expanded the park system beyond the department's ability to staff and maintain it; relationships have deteriorated with many of the park system's most important partners and supporters.”
The report makes six main recommendations, including developing and communicating “a vision for the California Department of Parks and Recreation that articulates its mission, its evolving role and the importance of its relationships to other agencies, organizations and groups,” and “through a public process, should assess which parks  presently under state ownership have statewide significance and which parks serve primarily regional or local needs.  Parks that lack statewide significance should be transferred to local control.”
“We’ve got over $1 billion deferred maintenance because we can’t afford  to do it,” the department’s Michael Harris told commission staff in early 2012, according to the report. “What matters is that parks are falling down around our ears. Are we doing an adequate job?  The answer is, ‘No. We’re not,’” Harris said.
According to the report, California State Parks holds 339 miles of ocean coastline, 646 miles of lakes and reservoir shoreline, 327 miles of riverfront, 14,206 individual and group campsites, and 4522 miles of hiking, biking and equestrian trails, but is unable to determine how much it costs to operate each of its 280 units, according to the report.
The report states, “Former department Director Donald Murphy told Commission staff that approximately 150 parks can be considered the ‘core’ of the state system according to guidelines established by the 1928 Olmstead survey that guided early land acquisition. Mr. Murphy said the remaining parks - nearly 130 - might better be realigned to other entities or kept and managed by other partners.”
The report cites earlier transfers, including the budget deficits in the 1990s that resulted in the transfer of six state beaches, including Dan Blocker, Las Tunas, and Topanga—to Los Angeles County, and the transfer of ownership of  portions of Point Dume and Surfrider to the county in 1995.
“These transfers pioneered a mix of incentives and conditions that can provide guidance for a new assessment process.  The state committed to pay Los Angeles County $1.5 million annually for three years to help maintain the beaches. At the time the state also imposed conditions that restrict development at the sites and put an inflation-adjusted $250,000 cap on infrastructure projects such as restrooms, parking lots and maintenance or lifeguard  buildings.  Such conditions might need to be revisited. Some
Commission advisory committee participants said that even when adjusted for inflation, $250,000 doesn't build or renovate much in Los Angeles.” 
The report indicate “the state’s collection of cultural and historic artifacts likewise has not been scrutinized or assessed to determine which items are essential to telling the story of California. 
In testimony, Blaine Lamb, former chief of the department’s Archaeology, History and Museums Division, told the commission that only half of the system’s collection of one million artifacts is on display and the department lacks a complete inventory of its possessions.
The report finds that the department has focused almost entirely on promoting personnel with law enforcement backgrounds rather than individuals with management, education, conservation and other essential training.
“The new operating model will require a variety of skill sets, some of which do not currently reside within the Department of Parks and Recreation,” the report states. “The department should be given the flexibility to hire and promote employees who demonstrate the skills to manage and operate state parks in accordance with the mission of natural and cultural preservation, public access and education.”
“The state should establish the job classification of park  manager,” the report suggests. “These managers should not be required to obtain police officer standards and training certification.”
The report also recommends that the department “restructure the ranger classification to create a generalist park ranger classification with broad responsibilities and a park police ranger classification, which would focus on public safety in state parks operated by the department.  Rangers in  both classifications should be eligible for promotion into management.”
The report also finds that the department has resisted efforts to partner with other organizations to provide sponsorship or concession services, and has been reluctant to explore alternative recreational opportunities.
“The state must transition from a model of centralized state control to a more enterprise-based operating model that serves the mission of protecting natural and historical assets and increasing public access and enjoyment of these assets,” the report finds.
“The new model should have as its central goal the enhancement of the sustainability of the parks system as a whole...[and] recognize that not all state parks can be treated alike, and that parks have different cost structures and different capacities for generating revenue,” the report says. 
The new model should take advantage of experience with joint operating models and employ a greater degree of joint operations, or enlisting partners to take on responsibilities for operating units.”
“A new vision statement should include these components: State parks are a public good held in trust for current and future generations and deserve state support; the department is both a steward of important cultural and historic assets and a critical conduit of California's rich and diverse heritage to future Californians; shared management initiatives are essential to the future of the state park system; partners will be key players in decision-making and rule-setting; there is no one, single way to run the entirety of the state park system; and Californians have a right to have high expectations for their parks, and their sense of ownership should be respected.”
The report is available online at www.lhc.ca.gov

Artist’s Efforts Expand Environmental Awareness of Egyptian Wildlife

• Malibuite’s  Foldout Series Takes Travelers—Whether by Jumbo Jet or Armchair—on Fascinating Sojourns

BY ANNE SOBLE

A young Malibu artist and adventurer is involved in a colorful effort to make the diverse natural wonders of Egypt more accessible to the rest of the world.
American University in Cairo Press has published a new series called AUC Press Nature Foldouts, illustrated and written by Dominique Navarro.
Each foldout introduces a selection of Egypt’s animals and plants, from river wetland residents and desert survivors, to the wildlife of the ancients and prehistoric dinosaurs.
Navarro told the Malibu Surfside News, “Egypt is synonymous with desert tombs, mummies, pharaohs and revolutions, but there is another side to it that is vivid and invaluable: Egypt boasts a unique and exotic assortment of birds, mammals, fish and reptiles living everywhere from mountains to lakes to mangrove forests along the Red Sea.”
She said, “Egypt is full of surprises and remarkable beauty. What is exciting about this series is that it has something to offer everyone, whether they are a tourist visiting the ancient archeological sites, an animal or bird enthusiast, or simply curious about Egypt past and present.”
Navarro’s background is forensic art. She participated in an archeological dig near Luxor in 2011. For nearly two months, she worked at the excavation of a temple tomb, digging up hieroglyphic fragments and encountering images of birds and animals as depicted by ancient artists with each find.
Navarro said, “History is about learning from the past. I was inspired by the way the ancient Egyptians found their environment so invaluable that they depicted it in all aspects of their culture, from their architecture to their hieroglyphic writing.”
While living on the West Bank of Luxor, she said she was captivated by the landscape, especially “the desert mountains that conceal the Valley of the Kings, and the lush Nile River, which nourishes the vast agricultural fields and is the life source of the country.”
Navarro said she observed “a variety of birds thriving on the banks of the river as fishermen cast their nets from boats; and in the fields, farmers tilled the soil surrounded by cattle egret, while at dusk or dawn, one might catch sight of resident foxes hiding amongst the fields of sugar cane.”
The artist said she was “challenged to find information about the species she was encountering” and “conducted extensive research into the ecology of Egypt, consulting numerous scientific books and historical texts, asking experts, and exploring.”
She said she jumped headfirst into finding habitat of existing animals, but also discovered there were species that “some assumed were extinct” that were not.
While exploring, she “found two feisty, captive juvenile crocodiles in a Nubian village, but their fates were uncertain. [She] was told they would be returned to the wild, [but] it seemed more likely they would become dead souvenirs for a naive tourist.”
Navarro said, “Tourists have an impact on a country, for better or for worst. It is my hope that the AUC foldouts inspire people to think about the environment as a place we all share and must care for.”
She has completed the first two volumes of the series: “Egypt’s Flora & Fauna” with scientific consultant-naturalist Richard Hoath, and “Birds of the Nile Valley” with ornithologist John Wyatt.
She is currently at work on the next two in the series: “Ancient Egypt’s Wildlife” with renowned Egyptologist Salima Ikram; and Egypt’s Prehistoric Fauna, with paleontologist Matthew Lamanna, who helped discover the sauropod Paralititanstromeri, one of the largest dinosaurs known, in Egypt’s Western Desert in 2001.
The AUC foldouts are compact and laminated for outdoor use. They contain photographs, maps, illustrations of dozens of species, general text and scientific information. Navarro said the series will become available in the Arabic language to help “inspire school children and others in Egypt, and encourage environmental programs and promote ecotourism.”
The longtime Malibuite who grew up in Malibu Park and attended local schools said, “Despite the recent revolution and political turmoil, millions of tourists continue to travel to Egypt from around the world. People feel innately drawn to Egypt’s ancient civilization; they contributed so much to science and art, and continue to be a source of awe and inspiration.”
Navarro concluded, “The relationship of ancient Egyptians with nature is something we can learn from as well.” She added, “While we continue to admire and preserve the antiquities of the past, it’s vitally important that we also encourage the conservation of Egypt’s natural heritage and ecological future.”
AUC Press Nature Foldouts are available online from booksellers, including the publisher AUC Press at www.aucpress.com, or Navarro’s website at www.dominique navarro.com, or from Navarro’s blog, “Nature Unfolding”: http:// natureunfolding.wordpress.com/

Wednesday, March 20, 2013

City Attorney Says Council Members Did Not Violate State Brown Act

• Interpretation Hinges on Who Knew What When and Policy Being Established without Public Notice

BY BILL KOENEKER

Malibu City Attorney Christi Hogin is recommending the city council at its meeting next week, “decline to cure or correct in response to Malibu Township Council’s allegation of Brown Act violation and direct the response letter to be sent to the MTC after the mayor executes it.”
The Malibu Township Council, the oldest civic group in the city, issued a formal demand citing violations of the Brown Act, asking the city council to nullify its action on Jan. 14 directing the city attorney to negotiate a swap of Charmlee Wilderness Park for the 83 acres of Malibu Bluffs Park currently owned by the state.
The demand, in a form of a letter to the city clerk, is the first step in MTC filing a lawsuit for a judicial determination that the council’s actions setting in motion the land swap were taken in violation of the Brown Act’s open meeting requirement.
“I watched the video of the Jan. 14, 2013 meeting, reviewed the minutes from the meeting and considered carefully the arguments and information presented by MTC. After careful examination, I conclude that no violation of the Brown Act occurred,” wrote Hogin in her staff report.
The MTC letter, written by attorney Frank Angel, who represents the group, alleges that Councilmember John Sibert is the pivotal member in the Brown Act allegations.
The Angel letter quotes Sibert as saying, “I did find out before Christmas that there was a meeting to discuss the swap.”
“Finding out about a meeting to discuss the proposed parkland swap is the same as finding out about the proposed swap itself. Especially considering that the swap proposal was put forth by Mayor Lou La Monte and Councilwoman [Joan] House, acquiring knowledge of a meeting to discuss their proposal and acquiring knowledge of their positions,” wrote Angel in the letter.
“MTC is incorrect. The Brown Act does not prohibit two council members from developing a proposal to present to the city council at an open and public meeting and the Brown Act is not violated when other councilmembers become aware that the agenda item is being prepared for an upcoming meeting,” responded Hogin.
Angel noted that because three council members form a majority of the five-member council, Sibert’s acquiring knowledge before Christmas of the meeting at which the swap was discussed violates the Brown Act.
Hogin responded. “These facts are both true and do not constitute a violation of the Brown Act. MTC’s novel theory is that the Brown Act is violated once a third councilmember ‘acquires knowledge’ about a pending matter of city business if two other councilmembers are also aware of the item,” the city attorney countered. “The Brown Act is simply not aimed at regulating thought at that level. The purpose of the Brown Act is to have the city council conduct its deliberations and take its actions openly. It does not take much scrutiny to reveal the absurdity of MTC’s position: MTC claims that a majority of councilmembers cannot ‘know facts’ about an item before it is discussed at an open and public meeting.”
Hogin goes on to say that the Brown Act prohibits council members from discussing items that are not posted on the agenda of the meeting. Because the council members must receive the agenda in advance, all council members will have “acquired information” about agenda items before they are discussed at meetings.
“MTC does not even suggest that councilmember [John] Sibert discussed the matter with another Councilmember outside the meeting. And he did not. He said he did not at the January 14, 2013 meeting.,” the city attorney stated.
“In addition, as MTC points out, the Santa Monica Mountains Conservancy staff had produced comments on the proposal. Possession of this information was not a violation of the Brown Act. It was a necessary step toward being prepared to deliberate at the open and public city council meeting at which this item would be discussed.”
The city attorney also commented on MTC’s concern over “nonpublic fact finding’ saying it finds no footing in the Brown Act, insisting every staff report for every item on every city council agenda at every open and public meeting “since the city incorporated reflects ‘nonpublic fact finding.’”
“That is what the staff report does; It gathers information outside the public meeting and reduces it to writing for presentation to the council at a properly noticed city council meeting,” added Hogin.
“Not withstanding MTC’s attempts to paint a nefarious gloss on the events, MTC presents no facts—and none exist—to support its baseless accusation. This was one perfectly valid approach: see if the SMMC staff was receptive to the idea before asking the city council if it was interested, In preparing the proposal for presentation to the city council, the city manager and the city attorney are well within their Malibu City Attorney Christi Hogin is recommending the city council at its meeting next week, “decline to cure or correct in response to Malibu Township Council’s allegation of Brown Act violation and direct the response letter to be sent to the MTC after the mayor executes it.”
The Malibu Township Council, the oldest civic group in the city, issued a formal demand citing violations of the Brown Act, asking the city council to nullify its action on Jan. 14 directing the city attorney to negotiate a swap of Charmlee Wilderness Park for the 83 acres of Malibu Bluffs Park currently owned by the state.
The demand, in a form of a letter to the city clerk, is the first step in MTC filing a lawsuit for a judicial determination that the council’s actions setting in motion the land swap were taken in violation of the Brown Act’s open meeting requirement.
“I watched the video of the Jan. 14, 2013 meeting, reviewed the minutes from the meeting and considered carefully the arguments and information presented by MTC. After careful examination, I conclude that no violation of the Brown Act occurred,” wrote Hogin in her staff report.
The MTC letter, written by attorney Frank Angel, who represents the group, alleges that Councilmember John Sibert is the pivotal member in the Brown Act allegations.
The Angel letter quotes Sibert as saying, “I did find out before Christmas that there was a meeting to discuss the swap.”
“Finding out about a meeting to discuss the proposed parkland swap is the same as finding out about the proposed swap itself. Especially considering that the swap proposal was put forth by Mayor Lou La Monte and Councilwoman [Joan] House, acquiring knowledge of a meeting to discuss their proposal and acquiring knowledge of their positions,” wrote Angel in the letter.
“MTC is incorrect. The Brown Act does not prohibit two council members from developing a proposal to present to the city council at an open and public meeting and the Brown Act is not violated when other councilmembers become aware that the agenda item is being prepared for an upcoming meeting,” responded Hogin.
Angel noted that because three council members form a majority of the five-member council, Sibert’s acquiring knowledge before Christmas of the meeting at which the swap was discussed violates the Brown Act.
Hogin responded. “These facts are both true and do not constitute a violation of the Brown Act. MTC’s novel theory is that the Brown Act is violated once a third councilmember ‘acquires knowledge’ about a pending matter of city business if two other councilmembers are also aware of the item,” the city attorney countered. “The Brown Act is simply not aimed at regulating thought at that level. The purpose of the Brown Act is to have the city council conduct its deliberations and take its actions openly. It does not take much scrutiny to reveal the absurdity of MTC’s position: MTC claims that a majority of councilmembers cannot ‘know facts’ about an item before it is discussed at an open and public meeting.”
Hogin goes on to say that the Brown Act prohibits council members from discussing items that are not posted on the agenda of the meeting. Because the council members must receive the agenda in advance, all council members will have “acquired information” about agenda items before they are discussed at meetings.
“MTC does not even suggest that councilmember [John] Sibert discussed the matter with another Councilmember outside the meeting. And he did not. He said he did not at the January 14, 2013 meeting.,” the city attorney stated.
“In addition, as MTC points out, the Santa Monica Mountains Conservancy staff had produced comments on the proposal. Possession of this information was not a violation of the Brown Act. It was a necessary step toward being prepared to deliberate at the open and public city council meeting at which this item would be discussed.”
The city attorney also commented on MTC’s concern over “nonpublic fact finding’ saying it finds no footing in the Brown Act, insisting every staff report for every item on every city council agenda at every open and public meeting “since the city incorporated reflects ‘nonpublic fact finding.’”
“That is what the staff report does; It gathers information outside the public meeting and reduces it to writing for presentation to the council at a properly noticed city council meeting,” added Hogin.
“Not withstanding MTC’s attempts to paint a nefarious gloss on the events, MTC presents no facts—and none exist—to support its baseless accusation. This was one perfectly valid approach: see if the SMMC staff was receptive to the idea before asking the city council if it was interested, In preparing the proposal for presentation to the city council, the city manager and the city attorney are well within their authority to make whatever inquiries and hammer out whatever details their respective professional judgment suggests is warranted,” the city attorney opined.
Hogin noted that MTC claims that the city council initiated negotiations over the land swap largely based on MTC’s speculation that neither the city manager nor the city attorney would devote time to any matter without it being given direction by a majority of the city council. “This assumption may be based on a lack of understanding about the fundamental roles of the various public officials in the city manager form of government. Suffice it to say that MTC is incorrect that such council direction was required for the city officials to undertake the initiatives they did prior to the January 14, 2013 meeting.
“Finally, MTC holds out as proof of a secret pre-meeting agreement the fact that the mayor boldly suggested that additional  ball fields were a primary motivator of interest in the land swap. If MTC thinks that the city’s belief that it lacks adequate playing fields first arose in secret meetings over Christmas, MTC has fallen out of touch with the community. Providing more playing fields is a long-standing priority of the city. When the mayor asserts that acquisition of the state’s portion of Bluffs Park is attractive if the city has the potential to install additional ball fields, he speaks not just for the current council, but echoes the sentiment of council after council before him and numerous members of the community.”

Planning Panel Reverses Its Earlier Stance on MHS Parking Lot Lighting

• Sparsely Attended Meeting May Have Been an Indication that Complicated Compromise Was Anticipated

BY BILL KOENEKER


Santa Monica Malibu Unified School District officials, who had successfully sought delays for a Malibu Planning Commission hearing since last year, were successful Monday night in convincing a majority of the commissioners to allow lights on the proposed upper parking lot, with modifications.
The modified project includes a redesigned lighting proposal for the new 150-space parking lot and upper walkways that access it, according to a city planner. “Lighting along the new access road leading up to the new 150-space parking lot was eliminated from the original design.”
After nearly three hours of public testimony and commission deliberation, with newly installed chair Jeff Jennings recusing himself, it appeared the commission was locked into a two-to-two tie.
Commissioner John Mazza reminded his colleagues that a tie vote on the motion would be the same as a losing one and the matter could be tied up for years if it was appealed to the city council and to the California Coastal Commission.
Panelists then began in earnest to deliberate and debate sometimes heated in an effort to see if they could come up with a compromise.
As at the previous meeting in August, commissioners were focused on lighting issues on a 150-space parking lot and whether it should remain unlit.
When the dust settled, the commissioners devised a complicated scheme in which they allowed the lights to be built, but placed numerous conditions to control the timing and nights the lights can be used, what section of the parking lot is usable and upgrades to lighting standards on other parking lots.
The 150-space lot will be open at night for the same 16 nights when the athletic field lights are in use and an additional 15 nights for special events.
Lots A and B will operate as close to what is called “Light Zone One” as possible, to be determined by the planning director with a one year review.
The district had already offered a lighting proposal, which was different than the one proposed in August that “utilizes advanced lighting technology with light emitting diode fixtures, three occupancy/motion-sensitive areas in the new 150-space parking lot, and redesigned pole heights, styles and orientation that adhere to the most recent version of the International Dark Sky Association/Illuminating Engineering Society Model Lighting Ordinance,” according to the district.
Another modification the district promised was that 217 existing exterior lighting fixtures at the school campus, which comprises all exterior lighting fixtures currently in use will be replaced.
The district has started replacing the fixtures with IDA-compliant, 26 watt LED fixtures with full cut-off performance. Priority is being given to the fixtures that pose the greatest lighting impacts to neighbors, according to school officials. Perimeter lighting will be replaced within six months, the commissioners were told.
Another modification involved the Morning View Drive right-hand turn lane. The modified project also includes an approximately 700 foot long, dedicated, right-hand turn lane along the south side of Morning View Drive from Merritt Drive to the entrance of the new 150-space parking lot access road and restriped. It will further help alleviate congestion by moving arriving vehicles to the campus, district officials explained.
It was the oft-repeated phrase school officials offered planning panelists in explaining the configuration of the driveway and parking lots.
During the last hour of debate between the commissioners, Mazza initially said he could not make the finding for approving the lights.
Planners told commissioners, the revised lighting proposal builds upon the mitigation measures identified in the project’s Final Environmental Impact Report in order to reduce the effects of the parking lot on sky glow.
Mazza noted the project would still result in a new source of light associated with the addition of lighting in the 150-space parking lot proposed in an undeveloped portion of the campus.
While sky glow would be substantially reduced as compared to the original proposal, according to a city planner, as compared to the original proposal, a new source of sky glow would still be introduced and the impact would remain “significant and unavoidable with respect to the impact of the project EIR.”
“I can’t support that,” Mazza said.
While the development of the parking lot and upper walkway without lighting would completely eliminate the significant and unavoidable effect of sky glow, such a condition would result in added neighborhood parking impacts by rendering the parking lot unusable during after 3 p.m. uses, district officials argued and many of the public comments were directed at the darkened lot.
Several speakers told the commissioners that they were concerned about the danger to their young daughters.
“A dark parking lot is not a safe place for a high school girl,” said Colleen Baum.
Newly installed Vice Chair Mikke Pierson said he did not think what happened at  the upper parking lot affects the quality of education. “One thing that concerns me is that lot is isolated. My primary concern is the safety of a young lady. I don’t know if I’d want my daughter walking up to that lot,” he said.
The new application is to redevelop portions of the MMHS campus with a new classroom/library/administration building totaling 20,274 square feet of net new building area; approximately 12,509 square feet of interior renovation and modernization of existing classrooms.
The commission approved the new 150-space lighted parking lot; a reconfigured 119-space lighted parking lot with an onsite roundabout; a reconfigured 61-space lighted parking lot and outdoor lighting.
The school district also got approval for a new student drop-off and pick-up lane; a right-hand turn lane for about 700 feet along Morning View Drive; two new unlit tennis courts; new outdoor common areas; new fencing, landscaping, retaining walls and grading; relocated equestrian trail and the renovation of existing facilities.
During the previous hearing many public comments endorsed the staff recommendation about reduced lighting.
However, district officials reiterated their concern about the unlit parking lot and told commissioners they were also bound by code and safety requirements. The big issue, commissioners were told, is the parking lot lighting and walkway lighting.
The standards, according to school officials, are not .established by the district but are adopted by other agencies requiring the district to meet those mandated safety and liability standards. A school campus requires a certain kind of lighting, according to the district.
After hours of questions and deliberations, the commission tentatively approved the staff recommendation of the unlit parking lot, some traffic changes and for two new unlit tennis courts, new outdoor common areas.
The Conditional Use Permit is for operation of a public educational institution and the expansion of more than 500 square feet in that zone.
Variances were sought for grading in excess of 1000 cubic yards, and constructing structures on 2.5 to one slopes and impermeable coverage over 25,000 square feet.
The school district, which is the lead agency, issued a FEIR last fall.
An FEIR describes the project as approximately 76,694 square feet of new construction, some of it replacement building since 15,041 square feet of old buildings are earmarked for demolition while other buildings will be upgraded.
The FEIR, which was approved by the school district prepared for the proposal, acknowledges that the project would not be able to avoid adverse impacts related to increased sky-glow because of night lights.
Although the debate over the high school parking lot lighting issue has been heated, it appears that the majority on both sides of the issue are comfortable with the compromise.

Commercial Property Owners in Malibu Civic Center Area Take Aim at Draft Formula Retail Ordinance Being Circulated by the City

• Group Sees Some of Its Concerns Reflected in October 2012 Memo to Council Members by City Attorney

BY ANNE SOBLE

Commercial property owners in the Malibu Civic Center area announced this week that they intend to respond to the City of Malibu draft formula retail ordinance that began circulation for public review on March 12 with wide-ranging legal and political counterattacks.
Attorney David Waite, the point man for the shopping center owners most directly affected should an FRO become law, fired the first volleys on Monday in a pair of letters to City of Malibu Senior Planner Joseph Smith who is overseeing the ordinance drafting and development process.
Waite joined partner and spokesperson for the Malibu Country Mart Michael Koss in a joint interview with the Malibu Surfside News this week. The coalition of commercial center owners perceives the draft FRO as a misguided effort and asserts that the “city council should have the courage to stand up to a small vocal minority of people who are asking them to do something against free enterprise and the best interests of the Malibu community.”
Waite told The News the group of commercial property owners thinks “the ordinance would substantially and impermissibly regulate and limit the presence of formula retail establishments in the broadly defined Civic Center area” to the detriment of the commercial property owners and local consumers alike. 
Koss said the draft FRO process is based on an erroneous perception of the makeup of the city’s commercial core where “no more than nine percent citywide and 16 percent in the Civic Center area is formula retail.” He said it is important to “understand that without these firms, there would be a “lot more vacancies and this would not only impact other tenants but begin to affect home values.”
The linchpin of the anti-FRO argument is that its “goal is protectionism” and any notion of rural character is “disingenuous.” Both men contend that the ordinance is predicated on discrimination against national retail chains.
Waite asks why Malibu consumers should not be allowed to decide where they want to do business with their pocketbooks. Instead, the attorney said, “City regulators would be given the power to pick the [local business] winners and losers.”
Concerns have been expressed that the system being explored by the city could lead to personal favoritism for campaign donors, friends and family members, and even create an atmosphere that encourages miscreant behavior.
Koss said that if there are business issues that need to be addressed, that need not be done with “a blunt instrument because there are incremental alternatives to this Draconian ordinance.”
Koss said the draft doesn’t include a definition for the “community character it is supposed to protect.” Waite added, “Let’s have a discussion about community character. We see no nexus between preserving rural character, or small town feel, and regulation of formula retail chains.”
In a letter to Smith dated March 18, Waite stated, “As currently constituted, the ordinance violates the dormant commerce clause [derived from the U.S. Constitution] and is therefore unconstitutional. Further, the ordinance will so inhibit the ability to lease retail space in substantial portions of existing retail centers that it will work a regulatory taking on property throughout the Civic Center.”
Waite added, “Finally, as a policy matter, the ordinance will not accomplish what it purports to achieve. Heretofore non-existent local businesses will not miraculously spring forth to fill new or vacant retail space. Rather, were the ordinance to take effect, it would create two results: (1) substantial retail vacancies in currently thriving retail centers and (2) a tremendous diminution in the value and desirability of these centers.”
The owners indicate that they intend to present “substantial evidence of the ordinance’s many detrimental effects, and detailed legal analysis of the ordinance’s specific legal flaws.”
As similarly noted by Malibu City Attorney Christi Hogin in an Oct. 12, 2012 memorandum to the city council members that they are treading in murky legal waters with a formula retail ordinance, “the dormant commerce clause prohibits economic protectionism—regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.”
Waite contends that courts are particularly wary of laws that evince a protectionist purpose and sees the record as “replete with evidence from members of the public and Malibu officials demonstrating that the primary motivation behind the ordinance is the protection of local merchants.”
He wrote, “The city purports to want to maintain Malibu’s ‘relatively rural nature’ and ‘small-town feel’ and to avoid the ‘sameness and familiarity’ that formula retail allegedly brings. The most obvious way to address these concerns is to impose aesthetic standards on all retail in the city. The city could develop standards that maintained and enhanced its (allegedly unique) retail environment without arbitrarily singling out formula retail. There is no connection that demonstrates how placing substantial regulatory limits and barriers on formula retail will serve to preserve the city’s claimed rural, small town feel. Nondiscriminatory alternatives must be evaluated.”
The communication continued, “In addition to impermissibly favoring in-state local merchants, the ordinance would work a regulatory taking on property throughout the Civic Center. Thus the ordinance will dramatically reduce the value of affected centers (by tens of millions of dollars), while directly interfering with the owners’ reasonable investment-backed expectations, as all of the owners purchased, planned and developed their properties before the concept of a formula retail ordinance ever existed. Further, as discussed above, the character of the governmental action is highly suspect and almost certainly borne of an impermissible desire to protect local merchants.”
In addition, the assessment of the FRO asserts that “the entire structure of the ordinance suffers from deeply arbitrary and wholly unsupported definitions and distinctions. While the city has discretion to enact legislation, an ordinance that is arbitrary, capricious, or entirely lacking evidentiary support will be overturned.”
Waite emphasized that the ordinance does not apply to “the very areas of the city that are more rural, such as Pt. Dume and Trancas, despite stating that its entire purpose is to protect the city’s rural character. The Civic Center is in fact the most developed portion of the city. The Civic Center is the heart of the city’s civic life and the center of commercial activity and commerce, and is the most urbanized area of the city.”
Waite noted that what is seen as most incredible to the owners is that the “definition of formula retail itself is arbitrary. The ordinance presents no logical rationale behind its threshold of seven or more establishments. Why not ten, or twenty, or a hundred? The ordinance exempts grocery stores, presumably because the city recognizes that the grocery store market is almost completely dominated by formula outlets, but does not exempt drug stores, which are similarly dominated by formula chains. Each business provides essential staples that must be available locally. What is the rationale for the distinction?” 
However, more troubling for Waite are mandated Conditional Use Permit findings, which invest the city planning commission with “completely unfettered, standardless discretion. For example, the required finding that a “formula retail establishment will not be incompatible with surrounding uses” provides no basis for how “incompatible” will be determined, thus permitting the planning commission to deny a CUP for entirely protectionist purposes.”
The Civic Center commercial owners point to a market analysis submitted to the city by Stanley Hoffman Associates, Inc., confirming what Koss stated that formula retail comprises 15.9 percent of the retail square footage in the Civic Center area, which is perceived by the group as  “a very low percentage of formula retail, particularly in comparison to the percentages present in many other centers in surrounding areas.
The attorney overseeing the owners’ response also contends that ordinance proponents claim there has been “a specific increase in the number of formula retail establishments being introduced in the Civic Center  but offer no evidence for this claim. Rather, the empirical evidence reveals that absent regulation, the free hand of the market has created a diverse and healthy retail environment without an overabundance of formula retail.”
According to Hoffman’s analysis, “not a single covered shopping center in the Civic Center has more than 50 percent of its retail square footage rented to formula retailers. What, then, is the motivation for the ordinance?  Given the focused political effort by some Malibu residents who explicitly want protectionist legislation, coupled with the comments of sympathetic council members, it appears that all of the purported justifications for the ordinance amount to little more than a smoke screen to mask unlawful economic protectionism.”
The overall contention is that the draft ordinance’s “legal flaws are manifest [and the commercial property owners] strongly urge the city to rethink its approach and attempt to achieve its goals in a legally sustainable manner. [The owners indicate that they] remain hopeful that [they] can work cooperatively and constructively with the city in the coming weeks” to address what they perceive as the draft measure’s shortcomings.
COMMERCIAL OWNERS
CALL FOR AN EIR
Calls for more stringent Environmental Impact Reports are often anathema in the commercial development process, but Waite’s second communication to Smith this week indicates that the group of commercial property owners in the City of Malibu concerned with the city’s proposed formula retail ordinance sees the need for additional oversight on the measure now under public review.
 Waite wrote, “Based on a review of the scope and requirements of the ordinance undertaken by this office and leading real estate market research and planning firms retained by the law firm—Jeffer Mangels Butler & Mitchell LLP—on behalf of the owners, a fair argument can be made that the ordinance may have a significant effect on the environment, requiring preparation of an EIR.”
The concerns cited for this stance include transportation and traffic impact, economic impacts and “physical decay” (the ordinance’s likely impacts on the overall economic health and vitality of the Civic Center, and the attendant spillover effects on remaining retailers, especially smaller tenants), and land use conflicts (state mandates that cities not interfere with or create barriers to visitor-serving uses along the coast as called for by the California Coastal Commission and other issues related to the specific nature of a beachfront community.
Additionally, Waite’s call for an EIR is predicated on the potential for “causing what could turn out to be a substantial reduction in the value of the commercial properties in the area.” As a result, he wrote, “On behalf of the owners, we respectfully request that the city properly study the multiple potential environmental impacts the ordinance may cause.”

Publisher’s Notebook

• Time to Act on Malibu Rodenticide Ban •

BY ANNE SOBLE

The City of Malibu will commemorate the forty-third anniversary of Earth Day with a month-long celebration through April. In addition to uttering platitudes such as “Every day is Earth Day in Malibu,” city officials should promote environmental awareness through implementation of meaningful policies that empower Malibuites as environmental stewards.
These officials can make an Earth Day statement that resonates soundly by moving speedily to address a request to take action on a resolution to limit use of rodenticides throughout the community.
A proposal is advocated by the Malibu Agricultural Society and others who urge the Malibu City Council to take a strong stand in opposition to the sale and purchase of rodenticides that are deemed an unreasonable risk to children and pets, and are decimating wildlife.
There is widespread citizen and scientific consensus that second-generation anticoagulant rodenticides spread toxic chemicals into the ecosystem. The federal Environmental Protection Agency is initiating regulatory action to cancel and remove from the market certain consumer-use mouse and rat poison bait products but it is fought at every turn by unlimited funding from the profit-reaping pesticide industry.
In California, a coalition of environmental and public health groups is urging the Department of Pesticide Regulation to reject registration renewals for brodifacoum, bromadiolone, difethialone and difenacoum.
The DPR is analyzing the effects these rodenticides have on wildlife in partnership with the University of California at the request of the Department of Fish and Wildlife. It is hoped that stringent measures to protect wildlife will be the end result.
Other California counties, cities and public agencies have put limits on the use of these rodenticides. Albany, Berkeley, El Cerrito, Emeryville, Marin, Richmond and San Francisco are some of the entities that have passed resolutions opposing the use of these poisons.
Malibu includes and is surrounded by thousands of acres of parkland, as well as other natural areas that sustain diverse wildlife despite growing human encroachment. Shrinking habitat is exacerbated by the toll of these poisons working their way through the food chain.
The city should adopt a resolution urging local businesses to stop carrying these rodenticides. The local owners of Malibu Hardware have stepped up to the proverbial plate and other establishments have indicated   they plan to follow suit. The rest need some prodding. And residents must become educated on alternative pest management so they will stop purchasing rodenticides.
A Malibu City Council ban must also encompass curbs on the use of these rodenticides by the city itself, as well as efforts to pressure the local school district and other public agencies that are currently heavy chemical users to turn to pest management alternatives.
State Senator Fran Pavley has been a vocal critic of these chemicals. When she was in Malibu last Sunday, rodenticide ban advocates were able to speak briefly with her and they say she was supportive of their efforts.
These advocates have been trying to get the two city council members who could spearhead action to meet with them since Jan. 18. Their requests have received perfunctory postponements. When one looks at some of the other issues that have been steamrollered at City Hall in recent months, one has to wonder where the politicians’ environmental commitments are.
I regularly run a public service announcement reminding humans that Malibu’s wondrous species of raptors “prefer their meals poison free” because the humans may “call them rodents, [but the raptors] call them dinner.” Nature can stay in balance with our help. Malibuites need to take action on rodenticides if they want to consider themselves good environmental stewards and keep this Earth Day from becoming another hollow exercise in self-serving PR.

Paradise Cove PCH Parking Ban Proposal Gets Approval from State Agency

• Local Music Group Plans Benefit Concert to Aid Family of Towtruck Driver Killed in  Accident

 BY BILL KOENEKER

Malibu City Manager Jim Thorsen announced at last week's city council meeting the State Department of Transportation has agreed to put up no parking signs along Pacific Coast Highway near the entrance to Paradise Cove.
“They are putting up the signs along a 1000 feet of PCH,” said the city manager. “It should take three to four weeks.”
The city manager added the signs would be placed along the guard rails on both sides of the coast highway.
“It is a start,” said Councilmember Laura Rosenthal.
The safety problem escalated last summer when beachgoers parked along the highway and walked into Paradise Cove.
The mix of parked vehicles, pedestrians and summer beach traffic created a nightmare for PCH safety proponents and city officials, who were asked to come up with a solution.
In another attempt to promote safety on PCH, the council voted unanimously to direct the staff to bring back an ordinance requiring valet companies using the public right-of-way in Malibu to wear reflective outerwear at all times and to direct staff to work with county staff too amend the county code to require similar safety precautions for the issuance of a business license to a valet operator.
A  suggestion that recommended requiring valets to wear blinking lights on was turned down.
“I am glad not to see blinking lights [not a part of the ordinance],” said Councilmember Joan House, who said they might be a distraction for motorists.
The council also heard from the Cimorelli Sisters, a  local singing group, who gave a brief performance, and explained that they are seeking to find a venue for a benefit performance in support of the family of the tow truck driver who was fatally injured on PCH when he was trying to assist one of the women in the band.
Katherine Cimorelli said she was in the car that broke down that was getting an assist when the driver was killed.
“He was killed right before me. It was horrifying. I went to the funeral. He left behind a widow and three young children.
“We want to have a huge fundraiser for the family. We have a place in Newbury Park, where the family lives and are looking for a Malibu location. I experienced first-hand the horrors of PCH,” she said.
The mayor and council members were quick to offer city facilities. “Will this room work for you?” asked Mayor Lou La Monte, speaking about council chambers.
Other council members suggested other Malibu facilities, including Bluffs Park, as  potentially bigger venues.

CCC Finalizes Beach Access Order

BY BILL KOENEKER

The California Coastal Commission at a public hearing in San Diego this month took the final action on a consent agreement and cease and desist order on a proposed amendment to a previously issued cease and desist order concerning the removal of unpermitted development directed to Lisette Ackerberg in her individual capacity and as trustee of the Lissete Ackerberg Trust for property located at 22466 and 22500 Pacific Coast Highway.
The cease and desist order was previously issued and held up by the courts for attempts to block vertical and lateral public access easements and ordering the easements to be opened up by removal of unpermitted development on those easements.
The consent agreement and order requires Ackerberg to remove the unpermitted development from public access easements on the property, construct a public accessway and pay for the operation and maintenance of the public accessway for 10 years, in addition to paying fines and penalties to resolve Ackerberg's civil liabilities, according to CCC documents.
The order agreed to by Ackerberg in the consent agreement also requires her to pay the Mountains Recreation and Conservation Authority $35,000 a year for ten years to cover the costs of operating and maintaining the vertical accessway and pay another  $350,000 to the violation remediation account to go toward the improvement, enhancement and maintenance of public access elsewhere in Malibu.
Ackerberg must also pay $160,000 for each year or proportional amount for any fraction of a year through the date when the public access is open and pay $170,000 as a full, complete and final reimbursement to the commission for all attorney’s fees and costs.
An appellate court upheld the legality of the Coastal Commission’s cease and desist order of Ackerberg’s attempt to forestall the Carbon Beach Coastal Accessway
Ackerberg lost her appeal to stop the opening of the accessway adjacent to her property when a state Court of Appeal upheld the action by the Coastal Commission that will ultimately provide new public access to Carbon Beach.
The Second District Court of Appeals had affirmed a Superior Court decision that the coastal agency properly ordered the Lisette Ackerberg Trust to remove unpermitted development blocking a public access easement on Ackerberg’s property including a nine-foot-high wall across the accessway, large boulders, a concrete slab and generator, fence and more.
The permits issued for building the Ackerberg mansion required the property owner to record two public access easements across the property.
For years, the coastal agency contends it attempted to work with Ackerberg to resolve the violations, but those efforts never produced the results sought by the state agency.

Watershed Project Proponent Organization Releases Report

BY SUZANNE GULDIMANN

The water quality advocacy organization Heal the Bay has released “Malibu Creek Watershed: An Ecosystem on the Brink,” a document summarizing 12 years of data collected by the organization’s “Stream Team” and “Stream Walk” programs, both comprised of professional staff and volunteers who have mapped the 110-square-mile watershed and gather monthly water quality data at sites throughout the Santa Monica Mountains.
The report, co-authored by Sarah Sikich, Katherine Pease, Sarah Diringer, Mark Abramson, Mark Gold and Shelley Luce, is intended to be a call to action to limit future environmental degradation and remedy existing concerns, and a tool for developing policies to protect and restore the watershed.
Longtime Malibu residents will not be surprised to learn that the watershed faces impacts from channelization and other construction, agricultural and urban pollutants, invasive species and illegal dumping. Many of the most serious issues facing the watershed are located outside of the City of Malibu but they still impact the city because all of the water in the watershed enters the bay in Malibu.
While the document is called “On the Brink,” many of the watershed impairments discussed in the report have been present for decades, predating the environmental movement and subsequent policies that protect waterways and have lead to increased water quality awareness.
According to the report, development has slowed considerably in the watershed in recent years.
“Analyses comparing the 2001 and 2005 SCAG [Southern California Association of Governments] land use data indicate that land use designations in the Malibu Creek Watershed changed by less than one percent over this time period,” the report states.
“Despite its location in one of the largest urban areas in the world, the 110-square mile watershed is dominated by open space. Over 75 percent of the Malibu Creek Watershed is undeveloped,” the report finds.
“The Malibu Creek Watershed contains a wide variety of diverse habitats including coastal strand, oak and riparian woodlands, chaparral, coastal sage scrub, native grasslands, sulfur springs, and brackish water lagoon,” the report states.
“The watershed is home to several threatened and endangered plants and animals. Few natural areas globally can rival the extraordinary biological and habitat diversity of the Malibu Creek Watershed and greater Santa Monica Mountains, especially in close proximity to such a dense urban area. Even though the watershed is less populous than the rest of the Los Angeles area, the impacts of urbanization on the local natural resources are prevalent.”
The report raises concerns over stream barriers, including extensive areas of concrete, riprap, culverts, bridges, and concrete channels.
“We found that areas with 6.3 percent impervious cover show major signs of biological degradation,” the report states. “This finding is surprising, given that it is a much lower level of impervious cover that causes negative has been shown in previous studies.”
In recent years Heal the Bay  has contracted to  assist in the removal of barriers that include a Texas crossing in Malibu Creek State Park, but the report identifies many additional obstacles in the watershed, ranging from dams to culverts.
A removal plan for Rindge Dam, which was built in the 1920s, and is  one of the oldest structures in Malibu Creek, is currently being developed by State Parks.
The project to remove the 100-foot tall dam is currently estimated to have an $80 million price tag and is complicated by the location of the structure deep in Malibu Canyon and the hundreds of tons of silt, stones and debris impounded behind the dam and spillway.
“It would open up more than 10 miles of habitat to steelhead trout,” Shelley Luce told the Malibu Surfside News during a press tour of the watershed. The southern steelhead trout is a federally listed species.
The report also details numerous additional obstacles farther upstream.
Invasive species were another issue addressed in the report. Giant cane, arundo donax, a bamboo-like European water plant, creates an impenetrable thicket that displaces native plants, clogs waterways and does not support native animal or insect populations.
Animal invaders in the watershed include the crawfish, which consume native amphibians and their eggs; bullfrogs, which compete with native species; and the New Zealand mud snail, a tiny freshwater snail that arrived in 2005, is spreading  through the watershed and is thought to be transported from creek to creek on  visitors’ shoes.
Increased agricultural use is another issue addressed in the report. “Heal the Bay staff expect to see an increase in viticulture within the watershed, as well as an increase in equestrian facilities in the middle and lower areas of the watershed,” the report states.
“It’s great having locally produced wines, but we don’t really know what the impact is yet,” Sarah Sikich told The News.
 “Protecting streams and riparian buffers from modification and development, and restoring altered streams are critical actions for protecting the long-term health of the Malibu Creek Watershed,” the report concludes.
“Local governments within the Malibu Creek Watershed should adopt stream health protection ordinances to guard streams and riparian buffers from degradation due to development and human encroachment, with a purpose of creating buffer zones or setbacks for all development next to soft-bottom streams and to restrict streambank modifications.
“Additionally, restoration activities, including stream barrier removals, must remain priorities in the Malibu Creek Watershed.”
“There are a lot of problems, but there is also hope,” Sikich told The News.”
The document is available online at www.healthebay.org