Metropolitan News-Enterprise


Tuesday, September 27, 2005


Page 1


Court of Appeal Rules:

Malibu Council’s Development Agreement Violated Brown Act


By DAVID WATSON, Staff Writer


The Malibu City Council violated the Ralph M. Brown Act by agreeing after a closed session to settle litigation by exempting a development project from some current and possible future zoning regulations, this district’s Court of Appeal ruled yesterday.

Writing for Div. Eight, Presiding Justice Candace Cooper said the Brown Act’s litigation exception, Government Code Sec. 54956.9, does not permit cities to agree in advance to make zoning decisions that would ordinarily require public hearings.

“It...appears compelling that the statutory allowance for settlements in closed session not override extrinsic requirements for public proceedings,” Cooper declared. “This would mean that a settlement approved in closed session could not include agreement to take governmental action that independently requires a public hearing, at least without holding one before that action is actually authorized or taken.”

Undeveloped Property

The ruling invalidates a agreement by which the city had hoped to settle a long-running dispute over the use of 35 acres of undeveloped property alongside Pacific Coast Highway near Broad Beach. Under the agreement, developer Trancas-PCH, LLC would have given most of the land to the city for public recreation and open space but would have been allowed to subdivide an 8.5 acre portion and construct 32 housing units on it.

Four of the units would have been restricted to low-to-moderate income housing.

The agreement called for the development to conform to zoning codes currently in effect “except any limitations on density.” Existing zoning for the property permits only one residence per five acres.

The city also agreed not to enact new zoning requirements that would prevent the planned development.

Even aside from the Brown Act violation, Cooper said, the city lacked the power to agree in advance not to make specific zoning decisions.

“We hold that the agreement, however well-intended, was invalid, because it impermissibly attempted to abrogate the city’s zoning authority and provisions,” she wrote.

Development of the property was first approved by the county in 1985, before the incorporation of Malibu. The city rejected Trancas’ proposed subdivision maps in 1993, and those proposals were the subject of court battles between the city, Trancas, and the Trancas Property Owners Association over the next decade.

The association, which has about 90 members who own homes adjacent to Broad Beach, opposes the development proposals, but its challenge to the settlement was rejected by Los Angeles Superior Court Judge David P. Yaffe.

Cooper cautioned that the appellate court was not saying the city could not reach an agreement under which some land would be swapped for the right to develop the remainder.

“Our conclusion that the S[ettlement] A[greement] is invalid as presently cast should not be taken as disparaging either the values favoring settlement of disputes or, in this case particularly, the public benefit that the city sought to reap through dedication of the larger Trancas tract,” she commented. “Agreements that satisfy the needs and interests of developers, concerned citizens, and the municipality that embraces their interests and those of the broader public, should be pursued and commended... — and such a result should yet be possible here. The limit that we necessarily recognize and enforce is that statutory procedures and protections of public involvement cannot be ignored, and established regulatory regimes such as zoning may not be deviated from solely on bilateral agreement.”

‘Promise to Abjure’

Citing Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, Cooper said a “promise to abjure legislative zoning action” is “unlawful.”

Pointing to the exception the city granted from its density zoning limits, she explained:

“[D]epartures from standard law require administrative proceedings, including public hearings..., followed by findings for which the instant density exemption might not qualify....Both the substantive qualifications and the procedural means for a variance discharge public interests. Circumvention of them by contract is impermissible.”

She said that despite finding the agreement invalid as an unconstitutional “surrender of the police power,” the court was ruling on the Brown Act portion of the association’s challenge anyway because the issue was likely to come up again.

“Whether or not the exemption for advice about pending litigation authorizes approval in closed session of a settlement agreement containing the dynamic features of the SA is novel question, potentially subject to recurrence,” Cooper averred.

The agenda for the closed session at which the agreement was discussed only listed the name, case number, and court of the litigation along with about 30 other lawsuits, the presiding justice noted.

“Section 54956.9 does not by its terms provide for entry into or approval of settlements in closed session,” she observed. “....The statute has been construed, however, to allow a city council decide in closed session to settle numerous types of litigation that cities face, with agreements not limited to the payment of or acceptance of money....But in determining the extent of this implied legislative exemption, the statutory rules and underlying policies that require certain municipal action to be taken after public hearings are at least equally vital, and require harmonization.”

Cooper added:

“In the present case, the city recognized that the SA...involved more than just a settlement of litigation....We believe it ineluctable that, when such a settlement extends to authorization or taking of action that by law requires public decision-making, section 54956.9 cannot and does not provide an exemption either from that mandate or from the public meeting norm of the Brown Act.”

The property owners association was represented on appeal by John M. Bowman of Jeffer, Mangels, Butler & Marmaro in Century City. The city was represented by Christi Hogin of Jenkin & Hogin in Manhattan Beach, while Trancas was represented by Century City attorney Alan R. Block and Andrea M. Gauthier of Horvitz & Levy in Encino.

The case is Trancas Property Owners Association v. City of Malibu (Trancas-PCH, LLC), B174674.


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