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The city of Malibu is changing the way it evaluates outdoor signs after a Latigo Beach couple claimed in a federal lawsuit that certain regulations violate the First Amendment.
A 3-1 vote by the Planning Commission on Monday, with one member abstaining, is the first step in removing from various planning guidelines language that essentially gives the city what’s been described as “unbridled power” to control content when deciding to issue a permit for a sign.
Next stop is the City Council.
As reported by Surfside News, in 2018, Dennis and Leah Seider placed on the beach side of their home “a simple, truthful sign” demarcating the boundary between their property and a public benefit access easement, the latter described as the last 25 feet of the beach before the mean high-tide line.
The California Coastal Commission stepped in and ordered the sign removed, saying it violated the property’s 1976 deed restriction as well as a section of Malibu’s Local Implementation Plan.
The Seiders complied and then asked the city for permission to put up a sign that could be deemed in compliance. When that request went nowhere, they sued in U.S. District Court in Los Angeles claiming certain LIP criteria violate free speech and property rights.
On Monday, the judge dismissed two claims, saying the couple could amend the complaint if they “join the California Coastal Commission, which is a necessary party.” Two other claims were dismissed because the Seiders did not identify an immediate threat or injury, while the fifth — a claim over state law — was dismissed until the plaintiffs establish that the court has subject matter jurisdiction.
That same day, after the Seiders notified the court they did not intend to amend their complaint, the judge dismissed without prejudice the first two claims (meaning they could be amended later), left in place dismissal of the third and fourth claims based on “ripeness” — that is, faking to show an immediate injury — and dismissed without prejudice the state law claim, declining to exercise supplemental jurisdiction.
The judge further ordered them to reimburse the city for expenses associated with the lawsuit.
At Monday’s meeting, Assistant City Attorney Trevor Rusin explained to the Planning Commission why they were being asked to weigh in.
“The City Council, when this was brought to their attention through the lawsuit, made the decision that these provisions … would be constitutional and by our analysis in conformance with the Coastal Act,” he said.
“They’re asking for your opinion whether they are compatible with the LIP.”
At issue are two sections, the first prohibiting “Signs which restrict access to state tidelands, public vertical or lateral access easement areas, or which purport to identify the boundary between state tidelands, and private property.”
The other section focuses on sign permits and criteria, in which three items are proposed by city staff to be removed. One of these items pertains to size, shape, color and placement; another stating a sign should not be detrimental to “the public health, safety, or welfare;” and the third which says the design of a sign in close proximity to a residential district and its location should not adversely affect the quality or character of the residential area.
“The city has previously been challenged on these sections as an unconstitutional content-based regulation of speech in violation of the First Amendment,” said Justine Kendall, associate planner. “The criteria by which sign permit applications are reviewed has also been challenged as inherently subjective.”
“Specifically it was contended that these paragraphs … give city officials unbridled discretion to deny a sign … and thereby result in an unconstitutional prior restraint on speech,” she said.
For consistency, Kendall told the Planning Commission, city staff was recommending making the changes not just in the LIP but to other c city planning regulations.
Staff at the California Coastal Commission had earlier told the city the changes might result in signs that intimidate the public from gaining legal beach access, which would go against the Coastal Act.
Commission member John Mazza was concerned that without the existing language, people wanting to put up signs would have unbridled leeway.
“So, if I were a store, I could go put up 20-foot by 10-foot sign saying, ‘Buy your Coke here?’”
Kendall replied that other criteria remain regulating size, shape and color that are not as subjective as the language subject to the proposed changes.
The only member of the public to comment was Barry Halderman, who was concerned about the free speech implications of the city’s existing language.
“This is a precondition to speech,” he said. “You can’t limit speech beforehand. What this does is it allows, eventually, the Coastal Commission to prevent somebody protecting the area of the beach that they legitimately own.”
He urged the city to make the changes.
Before the vote, the commission had some comment.
“The right of fee speech isn’t absolute,” said Kraig Hill. “It’s subject to reasonable restrictions.”
The ideal would be to go to the Coastal Commission and say “no signage,” he said. An alternative to individual signs would be for each beach access point to have a posting briefly describing how the mean high tide works and visitors need to respect the distinction and not enter private property.
Jeff Jennings, Planning Commission chair, said the chances of the Coastal Commission accepting the changes are zero.
“This has been drafted by the lawyers in the context of the litigation that we’re faced with,” he said.
Mazza then asked rhetorically whether he could out up a sign that says, “My neighbor sucks.”
Any type of restriction on content or a prior restraint before a sign’s even permitted, Rusin said, “could be problematic.”
The city hopes the Coastal Commission accepts the changes, Rusin added.
Mazza then asked whether the changes release the city from the Seider lawsuit.
“No,” said Rusin. “There’s no settlement agreement in place.”
Rusin cautioned about getting too far into the lawsuit, given it’s still alive.
Hill offered that the changes were basically city saying it doesn’t want to spend the money defending the lawsuit, let the Coastal Commission deal with it.
Rusin said no, calling the move an amendment “that we believe is compatible with the Coastal Act and that too should be certified by the Coastal Commission. It’s not an empty action here.”
The Coastal Commission staff may have weighed in against it, Rusin continued. “But the Coastal Commission themselves makes any decisions on this item and this is the action we need to take for them to act on certifying the change.”
Voting yes were Jeff Jennings, the commission chair, David Weil and Dennis Smith. Hill voted no and Mazza abstained.