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Malibu Developer Gets Reduced Setback for Beachside Development

The Malibu Bay Company (MBC) owns the last undeveloped beach front parcel in Malibu, a 2.08-acre, 200-foot-wide parcel. In order to accommodate its proposed division into four parcels, MDC proposed an amendment to the Local Implementation Plan of Malibu's local coastal plan in order to create a new zoning district which would allow for lot widths of 45 feet, a decrease from the, then existing, standard of 80 feet. Despite opposition from neighbor Deane Ross, MBC's request to subdivide the property was ultimately successful following the ruling of the Second District Court of Appeals in Ross v. California Coastal Commission. 

As the application advanced to the City Council, council staff ultimately recommended that the required width for all parcels in same district as MBC's property was located in, be reduced to the 45-foot standard. Altogether, this change would impact 733 parcels, although as staff noted, a majority of the existing parcels were already substandard to the 80-foot width standard. Staff further determined that only five parcels (including MBC's) were capable of further division under the proposed 45-foot standard. Two of the five were subject to additional legal limitations precluding further re-division, leaving only two parcels in addition to MBC's. Staff concluded that any further re-division of those parcels would require a coastal development permit and CEQA review. 

Concluding that there would be negligible direct and cumulative effects on aesthetics, biological resources and land use and planning, staff recommended acceptance of a negative declaration. Due to the presence of an environmentally fragile sand dune area, and based further upon a dune study submitted by the applicant's biologist, mitigation for dune species was required. The City Council eventually approved a revised mitigated declaration, and conditionally granted the approvals, subject to Coastal Commission approval. Neighbors opposed the approval of the entitlements, and submitted a biologist study indicating potential impacts to sensitive species.

Further review at the Commission resulted in conflicting recommendations from applicant, city and commission staff biologists as to the desired setback from the sensitive area, which is a habitat for the Globose dune beetle, which is considered a "species of concern" by the federal government. Commission staff eventually recommended a less aggressive setback then that proposed by its own consultant, based, in part, on a restoration requirement. The Commission staff also recommended a change to the view corridors as well. Neighbors continued to oppose the project at the Commission level. Immediately prior to the Commission hearing, Commission staff issued an addendum staff report, and recommended a further change to the LCP plan amendment. The Commission approved the amendment on a 10-1 vote in June of 2008. The matter was remanded to the Town of Malibu who adopted concurring revisions, and Commission staff ultimately certified compliance with the Commission's approvals, and the approvals took effect. 

The neighbors filed suit. The trial court granted partial relief.

On appeal, the appellate court reversed, ruling in favor of the town and the Coastal Commission. In the published portion of the decision, the appellate court addressed a number of procedural and substantive issues. 

The first substantive issue dealt with the setback for the dunes, an environmentally sensitive area. The town's general plan specified a 100-foot setback, whereas the local implementation plan of the local coastal plan allowed for a reduced setback. As there were reports in the record from the applicant's and town biologists on this subject, the court found substantial evidence in the record to support the Commission's imposition of a 5-foot setback. As to the application of these two different standards, the court held that the Commission's interpretation was entitled to deference. 

The court then addressed the CEQA claims, in the context of a certified equivalent CEQA process as authorized by CEQA and the Coastal Act. The first matter for consideration was whether or not CEQA's review period for EIRs (30 days; Public Resources Code section 21091) applied, or in the alternative, the 13-day review period utilized by the Commission was sufficient. The appellate court held that the Commission's certified regulatory program was exempt on the basis that the Secretary of the Resources Agency had certified the Coastal Commission's regulations which included the shorter, seven-day time period. It was too late to challenge the validity of the shorter review periods under the Coastal Act. 

The Commission also successfully argued to the appellate court that under CEQA procedures, it acted as a responsible agency, and therefore the many requirements and steps necessary for preparation of the appropriate CEQA document did not apply. The appellate court also upheld the sufficiency to the responses to the general public comments by the Commission. 

The opponents also challenged the trial court's decision regarding the underlying analysis to the cumulative impact analysis, which analysis concluded that only two other lots were capable of additional division. In the face of the argument that owners of other lots may in the future combine them and seek re-division, the court, as had the court in Save Round Valley Alliance v. County of Inyo (2007) (see CP&DR Legal Digest Vol. 23, No. 2, Jan. 2008), concluded that the agency was not required to speculate as to what might happen in the future and, in any event, such development would be subject to regulation under the local coastal plan. 

The final CEQA issue pertained to the trial court's decision requiring that CEQA required a concurrent examination of the two existing lots which were capable of further division. Reversing, the appellate court observed "It is unreasonable to require the commission, city or developer to conduct a biological assessment on developed property they do not own and for which there is no reason to expect will be subdivided. Should these two developed lots be subdivided in the future, their owners will need to obtain a coastal development permitů"  

The Case: 

Ross v. California Coastal Commission B225796, 2011 DJDAR No. B225796. Filed and ordered published, September 9, 2011. 

The Attorneys: 

Elkins Kalt Weintraud, John M. Bowman and Reuben Gartside for Plaintiffs and Appellants.

Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, John A. Saurenman, Assistant Attorney General, Christina Bull Arndt and Wyatt E. Sloan-Tribe, Deputy Attorneys General, for Defendant and Appellant California Coastal Commission.

Christi Hogin, City Attorney, Jenkins & Hogin and John C. Cotti for Defendant and Appellant City of Malibu.

William W. Abbott is a partner in the firm of Abbott & Kindermann, LLP, of Sacramento.