Malibu City Official Stands by Legality of Using Permanent Outdoor Toilets

• Attorney for Neighbors of a Challenged Set-Up Questions the Municipality’s Stance

BY ANNE SOBLE

The official who heads the euphemistically labeled Environmental and Community Development Department, which ostensibly oversees building safety, planning and permits, continues to stand by his position that permanent portable toilets, outhouses by any other name, are legal in the City of Malibu.
However, legal counsel recently retained by Point Dume residents Cindy and David Emminger, who have waged an unintentional international media battle over such a unit on the property of neighbor Bob Dylan, questions the validity of Vic Peterson’s stance.
Frank Angel, a veteran of many major environmental battles in the community, also counters Peterson’s assertion that a portable toilet of however long placement is not development because “it is not bolted to the ground.”
Angel is researching the matter on the city, Los Angeles County and California Coastal Commission levels, and he has emails that indicate that the latter two look askance at permanent use of any kind of portable toilets.
The county building code is relevant because those regulations were largely adopted intact when Malibu incorporated, and it does not appear that the city opted out of that particular restriction.
The Coastal Commission may be relevant because Point Dume is within its purview. If it regards such a structure as development, a CCC permit would have been required. This might open a major can of worms for the multiple parcels Dylan has pieced together on the Point because there appear to be no record of permits for other new development on the site.
Is this all bureaucratic hair-splitting? Is it something that neighbors should ignore in the “live and let live” mindset that often dictates Malibu’s unwritten zoning code?
Not in this instance, say the Emmingers, who allege that the Dylan commode emits noxious fumes that exacerbate the respiratory illnesses of family members.
Some Malibuites quietly indicate that this is a matter that should have been resolved amicably sub rosa. Although it is no longer likely, Dylan may not have even been aware of the dispute, leaving such matters to staff, who not only are alleged to have ignored the Emmingers’ requests for remedy, but also refused to allow city personnel on the property to inspect the olfactory offender.
When pressed for more information on the specifics of the municipal take on the dispute, Malibu’s Peterson declines because it “is an open code enforcement case, and I don’t comment on those.”
Although some of the mainstream media treated the dispute over the portable toilet with broad-brush humor, the Emmingers emphasize that it is no laughing matter.
Cindy Emminger told the Malibu Surfside News that she wrote a letter to the editor last month as a last resort because her concerns were being ignored. She said the letter’s publication brought them to the forefront.
Angel said his clients have “been trying to resolve this dispute without creating a public media fracas; and our conciliatory approach has been snubbed.” He said he “never received the courtesy of a response” to multiple emails to Dylan’s representatives and attorneys.
The News also sent emails and left telephone messages with several reported spokespersons of record, but none of them were returned or acknowledged.
Angel’s emails took the basic format of “the Emmingers have been complaining for several months now about the hazardous and noxious fumes, gases and odors they are being exposed to, emanating from...a portable chemical toilet placed in proximity to the entrance to Mr. Dylan’s property for use by the guards [who are there 24/7] and other help...and [from] a wood-burning heating fixture (fire place or stove) inside the guardhouse.”
He states, “The fumes, gases and odors emitted by those uses have been causing Cindy Emminger and her seven-year old son David allergic reactions, breathing problems, burning eyes and headaches. The Emmingers are especially concerned for the health and well-being of David, who was diagnosed with autism at age two, has thyroid problems and undergoes immune therapy.”
Angel’s emails would continue, “We request that the chemical toilet be removed, and that no such use be maintained on Mr. Dylan’s Point Dume land parcels (all of which are zoned residential), and that the guards cease use of the wood-burning heating fixture. There are alternatives: guards and domestic helpers using existing bathrooms in other residential structures on bordering land parcels owned by Mr. Dylan (e.g., the small house on one of the parcels); or filing applications necessary for permit(s) to install appropriate sanitary plumbing in the guardhouse, connected to an approved on-site wastewater disposal system, and a heating fixture, to appropriately serve the guards and domestic helpers.”
He emphasizes, “The Emmingers have never heard back from any representative of Mr. Dylan. I [would] much appreciate [the recipient’s] assistance in apprising Mr. Dylan of these circumstances so actual action to remedy the situation can finally be taken. I am confidant that with a little understanding and good will, this nuisance can and will come to an end amicably, with neither delay nor legal fracas.”
Angel said his own review of the county code corroborates that “maintaining portable toilets on a residential property permanently is not a permitted use and would be cited by Los Angeles Regional Planning or Building and Safety (through their code). Portable toilets are only allowed during construction.”
Angel also told The News that his discussions with California Coastal Commission officials “confirm that the CCC considers chemical toilets and guardhouse structures ‘development’ within the meaning of the Coastal Act, if they are not associated with construction of a project or temporary events—especially if such structures are kept for a prolonged period of time.”
CCC staffers also indicate that the Proposition 20 timeline may apply to all of the conjoined Dylan parcels and “all development on those parcels since Feb. 1, 1973, requires coastal permits since the parcels are within 1000 yards of the mean high tide line.”
The Malibu attorney’s research might be the first indication of a possibility that the Dylan property staff’s refusal to amicably resolve a neighborly dispute over a porta-potty could escalate into a complicated web of state Coastal Act violations if any development on his Point Dume parcels turns out to have been undertaken without the required permits.