A state appellate court has rejected the City of Malibu’s argument that the state Legislature could not require the California Coastal Commission to adopt a local coastal program (LCP) for Malibu. The court also ruled that the Coastal Commission-prepared LCP is not subject to a local voter referendum.

The court showed little patience with the city, stating that “Malibu stood head and shoulders above other entities in the burden it placed on the Commission.”

The Coastal Act required all cities and counties with land in the coastal zone to adopt LCPs many years ago, but some jurisdictions — including Malibu, which incorporated in 1991 — have never adopted a plan. When a jurisdiction lacks an LCP, the Coastal Commission must make nearly all land use decisions within the jurisdiction’s coastal zone. All of Malibu lies within the coastal zone. Over the years, the Commission has commonly had to devote one full day every month only to applications from Malibu. From 1997 to 1999, the Commission received 976 applications from Malibu, far more than from any other city or county.

Weary of having to conduct “Malibu days,” the Commission sponsored state legislation in 2000 (AB 988 – Hertzberg) that required the Commission to write an LCP for Malibu. The successful bill amended the Coastal Act.

In 2001, after years of intense battles and apparently spurred by AB 988, the city adopted an LCP. However, the Commission declined to certify the plan because of the state legislation. A year later, the Commission adopted an LCP for Malibu. By October 2002, opponents of the Commission’s plan had gathered enough signatures to force a local referendum onto the ballot. With the referendum pending, the City Council declared the Commission’s plan invalid and said the Commission should continue to process development applications. The Commission responded that the LCP was in effect and that the city should use the LCP to process applications. The standoff has prevented the issuance of any coastal permits in Malibu for two years.

Of course, the city and the Commission went to court. Los Angeles County Superior Court Judge Alan Goodman ruled for the Commission, ordering Malibu to process applications and prohibiting a referendum. The city appealed, and a three-judge panel of the Second District Court of Appeal, Division Eight, upheld the lower court.

On appeal, Malibu argued that AB 988 was unconstitutional special legislation that, with no rational basis, singled out the city. Many other coastal cities have not adopted LCPs, Malibu noted.

The Second District rejected this argument because of the extraordinary burden Malibu had placed on the Commission. Similar sized and even larger cities generated far fewer applications for the Commission to weigh, the court pointed out. “Contrary to Malibu’s contention, the Legislature was entitled to select Malibu from among cities that had not implemented an LCP because the state is entitled to solve a problem incrementally, starting with the worst offenders first,” Justice Laurence Rubin wrote for the court.

The city further argued that the state could not pre-empt local land use control and that the Commission is an administrative agency that may not exercise unfettered legislative authority.

As for the pre-emption argument, the court ruled that the state may pre-empt local regulation in matters of statewide concern. Citing Yost v. Thomas, (1984) 36 Cal.3d 561, 571, Rubin wrote, “There is ‘no doubt that the Coastal Act is an attempt to deal with coastal land use on a statewide basis.’”

As for the Commission’s legislative authority, the court found that “the Coastal Act provides sufficient guidance to the Commission.”

The court then turned to the question of referendum. Malibu argued that the LCP enacted local laws, to which the citizens’ right to referendum applied. The court, however, said that the City Council’s failure to act had cost the citizens’ their right.

According to the court, The Legislature may “withdraw a local community’s right of referendum” in at least two ways: By stating it intends to pre-empt the discretion of the local legislative body, or by delegating legislative power “exclusively to a local governing body [so] as to indicate its intent to preclude the citizens’ otherwise coextensive right of referendum.” Both of those circumstances were present in the Malibu case, the court determined. The legislation required the Commission-prepared LCP to take effect immediately, permitting no time for a referendum. And, the legislation assigned the power to enact the LCP solely to the Commission.

Added Justice Rubin, “Good governance cannot permit local voters to override a state decision with a local referendum … to permit voters to overturn state enactments would upend our governmental structure and invite chaos.”

If Malibu voters want change, they should have the City Council petition the Commission for amendments to the LCP, or even lobby the Legislature to regain power to write a new plan, the court suggested. Although both of those things may eventually happen, it appeared the city’s first move would be to ask the state Supreme Court to review the case.

The Case:
City of Malibu v. California Coastal Commission, No. B168229, 04 C.D.O.S. 7805, 2004 DJDAR 10519. Filed August 23, 2004.
The Lawyers:
For the city: Christi Hogin, Jenkins & Hogin, (310) 643-8448.
For the Commission: John Saurenman, deputy attorney general, (213) 897-2702.