Council Listens to Bid for City to Make Gift of Public Funds for a Private Road

• City Attorney Cites Legal Constraints

BY BILL KOENEKER

Las Flores Canyon residents, who recently got a permit to build an emergency access road to reopen Rambla Pacifico, came “hat in hand,” as one resident put it, to ask the Malibu City Council Monday night for funding for the nearly $3.5 million private project.

Homeowners argued that the law and court cases were on the city’s side on a government entity funding a private project to help them gain an access for emergency vehicles and an exit for residents during a disaster.

However, upon the advice of the city attorney, council members, who expressed an interest in helping, declined to do so for legal reasons.

City Attorney Christi Hogin, who reminded the audience she has been involved for years in seeking a solution, said the city is stuck in a conundrum.

“I have been involved in the issue since 1990. This is a house of cards,” she said. “The city cannot put money in a gated road. That is a private road versus a public road. The biggest problem is the road standards. The problem is, it is an active landslide. We have to put up gates to limit access to make the road possible,” she said.

There were 46 residents who wanted to speak, some gave their time to others. They urged the council to come up with some kind of funding, though they knew, they said, the city was already into deficit spending. There seemed to be a consensus that at the least the city could spend $200,000 to help homeowners pay for nearly $1 million in permit fees and geological studies that amounted to a nine-foot high stack of reports.

The main problem that looms over all of the discussion are laws that prohibit governments from giving gifts to private entities.

One resident said there is plenty of case law on the city’s side that allows a city to give money if there is an “incidental benefit” to other residents.

However, Hogin rejected that claim and said the resident had not done his homework and there were other court decisions that would not allow the city to do what residents wants it to undertake.

Hogin explained that while everybody in council chambers favors city action, the matter is complicated because there are other homeowners that do not like the road and have already successfully litigated certain actions of the city.

Hogin reminded everybody the city had lost in a lawsuit when it tried to issue an emergency permit and the court found in favor of the litigant.

Without saying so, Hogin brushed aside the arguments about moral imperative. “We are a land of laws, not passion only. We have faced a lawsuit by neighbors who don’t like the road,” the city attorney said.

One council member completely agreed with Hogin.

“If we gave you the $200,000 now, it would not stand up in court like the emergency permit. We have to come up with something else” agreed Councilmember Pamela Conley Ulich, who is an attorney.

Council members were told each household would have to pony up $50,000, which would be a hardship for many families. Area resident Graeme Clifford reminded the council every previous council had promised help and supported the homeowners. “This is not a private road through a gated community,” he noted. He said many need financial help. “This is a public safety issue,” he added.

Former Councilmember Ken Kearsley insisted the matter is a moral issue. He cited a list of former council members who had promised the residents help. He also insisted he knew the current council would help.

Kearsley said the city built up the reserve fund just for such an emergency. “The benefit far outweighs the legal issue,” he added.

Councilmember Lou La Monte said he understood the issues. “We just have to find a way to help you,” he added.

Councilmember John Sibert, said he has friends that live up in the canyon, including the late David Kagon. He noted that he had reviewed the issue as a planning commissioner six years ago. “We have to find a way to help you guys. We are looking for the right way,” he added.

Councilmember Laura Rosenthal asked many speakers questions, wanting to know how many belong to the road association, how many other households are involved and expressed shock at how long it has taken to come up with a final solution. “Any land you could sell to the city to get through the legal issue?” she asked.

Council members talked about how they could “buy” something from the homeowners. “We will work out a solution,” said City Manager Jim Thorsen.