TRANCAS PROPERTY OWNERS ASSOCIATION v.

CITY OF MALIBU

Filed 3/30/06 Opinion following rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

David P. Yaffe, Judge. Reversed.

Jeffer, Mangels, Butler & Marmaro, John M. Bowman and David R. Daniels for Plaintiff and Appellant.

Jenkins & Hogin, Christi Hogin and Gregg Kovacevich for Defendant and Respondent.

Horvitz & Levy, Barry R. Levy, Andrea M. Gauthier; Law Offices of Alan Robert Block, Alan Robert Block and Michael N. Friedman for Real Party in Interest and Respondent.

Dennis J. Herrera, City Attorney (San Francisco), and Paul Zarefsky, Deputy City Attorney, for California League of Cities as Amicus Curiae.

Involved in litigation with developer Trancas-PCH, LLC (Trancas), over the validity of Trancas's final subdivision maps, which it had disapproved, the City of Malibu (city) entered into a written agreement with Trancas to rescind the disapproval, eventually to approve one of the maps, and to exempt a downsized Trancas development from certain present or prospective zoning restrictions. In exchange, Trancas agreed to dedicate three-fourths of its acreage to the city, and to dismiss the pending lawsuit. The city council approved the agreement in a closed session.

We hold that the agreement, however well-intended, was invalid, because it impermissibly attempted to abrogate the city's zoning authority and provisions. Addressing a further issue that could well recur, we also hold that adoption of the agreement in a closed council session violated the Ralph M. Brown Act, Government Code section 54950 et seq. (Brown Act), even though the agreement included a settlement of litigation.^[1] For both reasons, we reverse the judgment denying the petition of appellant Trancas Property Owners Association (Association) for a writ of mandate to set aside the agreement.

FACTS

Trancas owns approximately 35 acres of undeveloped land in the city (property), situated upland of Pacific Coast Highway, near its intersection with Trancas Canyon Road. South of the highway lie Trancas Beach and Broad Beach, adjacent to which the Association's roughly 90 members own homes. Trancas acquired the property in 1998 from a previous owner-developer, Trancas Town, Ltd., which was in bankruptcy. Trancas having succeeded to Trancas Town's rights and obligations, for simplicity we refer to both owners as Trancas.

Efforts to subdivide the property extend back over 20 years. Before the city's incorporation in 1991, its territory, including the property, was an unincorporated portion of the County of Los Angeles (county). In 1985, the county approved two tentative subdivision (or tract) maps for the property, which indicated a proposed subdivision of 15 single-family lots on an approximately 26.5-acre tract, and 52 condominium town houses on the remaining, 8.5-acre tract. The tentative maps were approved subject to various conditions, which, under the Subdivision Map Act, section 66410 et seq. (Map Act), had to be satisfied before Trancas could obtain approval of final tract maps, and thus be authorized to subdivide. (§§ 66426, 66458, subd. (a); see Soderling v. City of Santa Monica (1983) 142 Cal.App.3d 501, 509 [construing § 66473].)

In 1993, Trancas submitted proposed final subdivision maps for consideration and approval to the city, which now had jurisdiction over the property. The city, however, refused to consider them, asserting that the preliminary maps had temporally expired. In this regard, a tentative map generally expires two years after its approval or conditional approval (§ 66452.6, subd. (a)), subject to extensions by the governing body (id., subd. (e)), and to tolling during a development moratorium (id., subds. (b), (f)). Such expiration terminates all proceedings under the Map Act, and precludes filing of a final map until a new tentative map is processed. (Id., subd. (d).)

Trancas petitioned the superior court for a writ of mandate, which the court granted, finding the city's position not well taken. In May 1995, Division Two of this court affirmed that judgment, ruling that a combination of an extension by the county and tolling because of development moratoria (including one imposed by the city at its creation) had preserved the tentative maps' vitality to September 1993.

Although Trancas thus retained the ability to file its final maps, their approval by the city remained forestalled by a number of factors, including questions regarding the status of other governmental approvals, on which the tentative maps had been conditioned. One of these was a coastal development permit, which Trancas had obtained from the California Coastal Commission. The question arose whether that permit had expired, under the commission's regulations, because Trancas had failed timely to commence development.

The Coastal Commission's general counsel informally opined that the permit would be considered subsisting if Trancas obtained final subdivision map approval. Plaintiff Association then brought suit for a declaration that the coastal permit had expired. The trial court ruled against the Association, but the Court of Appeal, Division Six, reversed. In an unpublished decision rendered December 18, 2001, the court rejected the commission's counsel's views as nonauthoritative, and stated that city approval of the final maps could not be granted so long as regulatory conditions of the tentative maps remained unfulfilled.^[2]

The city resisted further processing Trancas's final maps, because of claimed failures to satisfy tentative map conditions. Taking issue with these contentions, in 2002 Trancas sued the city, to enjoin it from disapproving the maps. After unsuccessful settlement efforts, the action was reinitiated in January 2003, but Trancas's requests for temporary restraining order and preliminary injunction were denied, leaving the city free to act pending trial.

On March 24, 2003, the city council unanimously adopted Resolution No. 03-15 (the resolution), disapproving Trancas's applications for approval of its final maps. The resolution cited both section 66473 and section 16.16.060 of the Malibu Municipal Code (Municipal Code or M.C.), as requiring the city to disapprove a final subdivision map if the applicant did not satisfy conditions that were applicable when the tentative map was approved. The council found that numerous conditions of the tentative maps had not been satisfied, including requirements for a coastal development permit and for approval by the Regional Water Quality Control Board of the project's proposed septic wastewater disposal system. The resolution characterized each of these shortcomings, and the overall failure to satisfy conditions, as a sufficient and independent basis for disapproving the final maps. Finally, the resolution alternatively found and ordered that, owing to the expiration of Trancas's tentative maps in 1993 or at the latest 1996, all proceedings on the subdivision maps were terminated, under section 66452.6, subdivision (d). Contemporaneous with the resolution, representatives of the city and Trancas recommenced discussions to explore settling both Trancas's pending lawsuit and the overall subdivision matter. On April 14, 2003, before its regular meeting, the city council met in closed session to discuss numerous lawsuits, of which Trancas's was the last one listed on the agenda.^[3] That evening, apparently following this session, the city's mayor and a representative of Trancas executed a short â€