Malibu City Council
December 11, 2023

coastal cities and the Coastal Commission to adopt Local Coastal Plans (“LCP”), and the city could discourage, disincentivize, block and delay the construction of small one story ADUs throughout the entire city by relying on all the standard anti-development “nimby” provisions in Malibu’s existing LCP. That is what BBK has drafted and put in front of the City Council for adoption: the Illegal Mazza ADU Ordinance you are considering tonight is designed to rely on all the “nimby” restrictions in the existing LCD, and if adopted it will discourage, delay, and prevent the construction of small-scale ADUs. Instead, and if adopted, you will be supporting the construction of more absentee-owned mansions in Malibu.

II. HOW AND WHY THE ILLEGAL MAZZA ADU ORDINANCE VIOLATES BOTH MALIBU’S GENERAL PLAN, AND VIOLATES THE STATE ADU
STATUTE AND VIOLATES SENATE BILL 9.

On reading the Illegal Mazza ADU Ordinance, 1 decided to take the time to speak with the drafter himself, Todd, a BBK partner. Todd and I spoke for around 30 minutes on the topic. Todd was forthright and candid about how the basics of the statute were put together. Todd was not familiar with Malibu’s topography, or its seven distinct neighborhoods. Todd was not aware that the average home sale price in the Escondido Bluffs was between 20 million and 80 million dollars, or that raw land deals and tear downs in Point Dume now range between 6 million and 20 million dollars or that Malibu Park lots range in sale price from 3 million to 6 million dollars. Similarly, Todd was not familiar with the fact that the average lot sizes in Malibu Park, Point Dume, and the Escondido bluffs are between 1 to 3 acres, and some lots are as large as 4 to 6 acres. Todd was surprised at the lot sizes in these distinct neighborhoods, and was very surprised at the recent sale prices for lots and homes in these three neighborhoods, which contain among the largest number of housing units within the entire city of Malibu. When I inquired whether Todd had relied on ADU ordinances he had drafted for other cities, in the “one size fits all” way that law firms sometimes do this work, the answer was yes. The Illegal Mazza ADU Ordinance is a somewhat primitive amalgamation of language and nimby tactics from other more dense urban cities and highly dense coastal cities, without much effort to (a) differentiate among and between Malibu’s seven distinct neighborhoods, or (b) customize the proposal based on Malibu’s unique needs, goals, and topography.

This failure on the part of BBK in terms of drafting is not entirely BBK’ s fault, because the City Council gave its outside law firm zero direction. Both the City Council, and the Planning Commission, quite literally, did nothing, and gave no real guidance to BBK. The only audible “voice” in the “wilderness” of municipal governance that spoke on this issue was Mazza, who is quite clearly committed to no ADUs, no nothing, no approvals, no affordable small scale one story housing, anywhere in the city.

III. THE CITY ALREADY LOST THE RIDDICK CASE, AND IS GOING TO LOSE ITS APPEAL, WHICH WAS ARGUED LAST MONDAY, NOVEMBER 20, 2023,

TO A THREE JUDGE PANEL THAT WAS OVERTLY HOSTILE TO THE
CITY’S ILLEGAL STANCE ON ADUs.
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The City lost in front of the trial court on the Riddick ADU, a small scale ADU (less than 700 square feet) in Malibu West. Rather than adjust course and comply with California law, the City and BBK filed a losing appeal, which was argued last Monday, November 20, 2023. The central argument raised by BBK in its appeal is that the City ofMalibu can hide behind its LCP, the notion being that the ADU Statute does not pre-ernpt or control the Coastal Act, and instead, that the Coastal Act supposedly “pre-empts the field” and controls and negates the ADU Statute. This purported local LCP “legal position” is incorrect as a matter of law and entirely misses the point.

This argument by the City and BBK is not just silly and embarrassing, it is also (a) destructive housing policy for the City, and (b) expressly rejected by the Coastal Commission and the HCD.

It would be an understatement to say that the three judge appellate panel was unreceptive to the City’s “hide behind our ‘nimby’ LCP” central argument, and the Court of Appeal is highly likely to see the City’s effort to hide behind its LCP for the sham “nimby” anti-development tactic it is, for reasons explained below.

IV. THE COASTAL COMMISSION EXECUTIVE DIRECTOR HAS ALREADY REJECTED MALIBU’S EFFORT TO BLOCK ADU DEVELOPMENT BY

HIDING BEHIND ITS LCP, AND HAS INSTRUCTED MALIBU TO

HARMONIZE ITS LCP TO ENSURE THAT ADU DEVELOPMENT IS

STREAMLINED AND SUPPORTED IN WAYS THAT PROTECT COASTAL
RESOURCES.

Malibu is one ofmany exclusionary coastal enclave cities that has a long history of self destructive anti-development “nimby” politics. The effect of these policies in Malibu has been particularly damaging to Malibu and its local residents and children. Indeed, in the three categories that small municipalities are ranked and graded on, Malibu is zero for three: Malibu does not control or employ its own police department. Malibu does not control or employ its own fire department.

Malibu does not control or employ its own school district. Instead, Malibu pays the County Sheriff and County Fire Department millions of dollars per year on “service contracts,” which leaves staffing and control in the hands of decision-makers in downtown Los Angeles, while the School District is controlled in Santa Monica. This lack of local control is among the many reasons that the Woolsey fire was allowed to bum property and homes: the decision was made by people outside ofMalibu and, in downtown Los Angeles, to “let it bum,” the notion being that there would be no loss of life and replacement cost insurance was sufficient for the city of Malibu to recover afier the Woolsey fire burned itself out.

The resulting housing stock in Malibu is now self evident: the city is chock full of largeish mansions in the 5,000 to 8,000 square foot range, many owned by absentee non-residents. No coordinated or focused effort to incentivize, support or streamline small scale one story affordable housing stock has ever happened in Malibu. This is not just the case with bad statutes like the Illegal Mazza ADU Ordinance, which is clearly designed to prevent any ADUs from being built.

The City’s entire development history has been tilted toward the construction, development and approval ofnothing but mansions, and all one has to do is drive throughout the city to confirm this fact. Some of these historic mistakes are due to the lack of experience: two current commissioners (Mazza and Hill) and two current council members (Ubring and Silverstein) are unemployed and retired, and they do not appear to have ever developed any sort ofhousing, and they have no known 5351496.3
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experience with housing policy. This lack of experience has been exacerbated by “nimby politics,” in which council members Uhring and Silverstein hope that pandering to the “Malibu Toddler Council” for election votes in 2024 will be viewed as an actual housing policy. Council members Uhring and Silverstein, and their appointees Hill and Mazza, do not understand that the consequence of discouraging, blocking and delaying small scale ADUs will simply be more mansions, the demolition of the few remaining small homes within the city, resulting in more overall density, more fire danger and less safety. This issue is not complicated, and in fact is so simple and obvious that the HCD and Coastal Commission have already rejected the fake and contrived efforts by white coastal nimby cities that try to hide behind labels like “high fire severity zone” and arguments like “road not wide enough” and “two roads needed.” V. THE COSTAL COMMISSION’S JANUARY 21, 2022 GUIDANCE

MEMORANDUM ALREADY INSTRUCTS THE CITY OF MALIBU TO
REJECT THE ILLEGAL MAZZA ADU ORDINANCE.

The passage of the ADU Ordinance and Senate Bill 9 (the “Duplex Statute”) caused the white exclusionary coastal enclave cities like Malibu to immediately resort to stalling, followed by more or less standard “nimby” anti-development tactics. Malibu in particular has an informal group of confused citizens called the “Malibu Toddler Council,” which routinely attempt to misuse stalling tactics and empty phrases such as “neighborhood character” and “clustering to minimize fuel modification” to limit and destroy the ability of Malibu’s rural neighborhoods to rebuild themselves and recover from the Woolsey fire. The Malibu Toddler Council (which calls itself a “township” council) was so thoroughly committed to delaying and derailing all residential rebuild projects within Malibu Park and Point Dume, that the city’s recovery from Woolsey and its General Fund tax revenue base was crippled during the 2019 through 2023 time period. The majority of the City Council during 2018 through 2022 (Messrs. Grisanti, Farrer and Pierson) had so much on their plate dealing with the Malibu Toddler Council, that they were unable to propose, let alone adopt, a legal ADU Ordinance. The current majority of the City Council, represented by Messrs. Grisanti, Riggins and Stewart, has also thus far been unable to recognize that current proposed ADU Ordinance is in fact an illegal effort to violate the ADU Statute and Senate Bill 9, and block ADU development city-wide. This dysfunction within small cities like Malibu is not that unusual. The Malibu Toddler Council routinely stoops to empty and vacuous gamesmanship through fake and contrived efforts to pander to fools, with fake distractions such as the recent meritless “FPPC complaint” and the vapid and idiotic “Wagner affidavit” from 2020.

Thankfully, the more serious government entities that actually control certain key decisions have already instructed Malibu to throw the Illegal Mazza ADU Ordinance in the garbage, and to start over. This could not be any more obvious.

The Coastal Commission gave very specific direction to coastal cities like Malibu in two lengthy memoranda, both dated January 21, 2022, in connection with the importance of cities adhering and respecting their obligation to streamline and incentivize the construction of small scale housing under the ADU Statute and Senate Bill 9, to wit:
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“The Coastal Commission recognizes the particularly critical shortage of affordable housing in the coastal zone and has strongly supported strategies to increase access to affordable housing near the coast. To address housing shortages in the coastal zone over the long-term, new residential development must be built in locations and with designs that ensure it will be safe from hazards, have access to adequate public services and will minimize coastal resource impacts.”
“The Coastal Act Act has a variety of provisions directly related to housing. Relevant here, the Coastal Act does not negate local government compliance with state and federal law “with respect to providing low and moderate income housing, replacement housing, or any other obligation relate to housing imposed by existing law or any other law hereafter enacted” . . . [and] The creation of new J/ADUs in existing residential areas is one of many strategies that aims to increase the housing stock, including creating additional housing units of a type and size that can be more affordable than other forms of housing in the coastal zone, in a way that may be able to avoid significant adverse impacts on coastal resources.” There is no factual or legal support for the meritless argument that Malibu’s existing LCP and its “nimby” anti-development restrictions are valid or “pre-empt” the State ADU law or Senate Bill 9. Just the opposite is true: the City of Malibu has been told to change its LCP to harmonize it in a manner that complies with both the ADU Statute and Senate Bill 9, in order to ensure that ADUs are built that do not harm coastal resources. The practical effect of this directive is clear:
roughly 70% ofMalibu’s current residential lots easily lend themselves to the construction of small scale ADUs that would be compliant with the State ADU Statute, with zero impact on coastal resources. For those 70% of buildable residential lots, an ADU that is compliant with the State ADU Statute can be built withing 60 days of submission ofa completed application, without regard to whether the planning department, planning commission or city council approves or denies the ADU application.

VI. THE CITY’S STAFF HAS ALREADY INFORMED THE CITY COUNCIL THAT

THE RECENT NIMBY ARGUMENTS OF UHRING/SILVERSTEIN FROM THE

LAST CITY COUNCIL MEETING ARE ILLEGAL AND WILL BE REJECTED BY THE COASTAL COMMISSION AND BY THE HCD.

At the last City Council meeting, Malibu Toddler Council members Uhring and Silverstein trotted out two fake arguments that have already been recognized as illegal and rejected by the Coastal Commission and the HCD. The two fake arguments raised by Uhring and Silverstein are:

1. That the “high fire severity zone” label justifies that all current LCP “nimby” provisions must still be misused to delay and block all ADU development, even if ADU development has no impact on coastal resources; and

2. That “two road access” or “extra wide road access” should be misused as a “nimby” tactic to discourage, block and delay all ADU development within the city of Malibu. 5351496.3
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In typical fashion, these two Malibu Toddler Council members pretended that their suggestions were about “fire safety” and ensuring safe ingress and egress into and out of the city during the next fire event. Sadly, the majority of the City Council (Messrs. Stewart, Riggins and Grisanti) appeared to be confused by these two ridiculous arguments, and several soft statements of support were made by the majority members of the Council. Again, this is not complicated, the easiest way to understand that the “high fire severity zone” label and the “two roads needed” and the “need wider road” arguments are all fake and designed to discourage all ADU development would be to read the City’s staff report from tonight, on pages 3 and 4, and to also apply common sense and a basic understanding of how residential development actually works in the real world.

On pages 3 and 4 of the City’s Staff report, your full time staff is trying to educate you and teach you that the HCD and Coastal Commission will reject Malibu’s effort to hide behind it’s LCP because (a) there is no impact on coastal resources, (b) there is no evidence that “fire safety” will be enhanced through adoption of “nimby” LCP provisions designed to block and discourage ADUs, and (c) there is no evidence to support the notion that “two roads” or “a wider road” will in any way increase fire safety or reduce density. Put simply, your full time staff recognizes that the arguments made by Silverstein and Uhring are fake, meritless, and simply more of the same “Malibu Toddler Council” garbage that has severely damaged the city of Malibu for the past five years.

One way to help the majority understand the cause and effect here of adopting the Illegal Mazza ADU Ordinance based on fake arguments, is to inject how homeowners and real estate developers actually make decisions in the real world. Because Planning Commissioners Mazza and Hill, and Council Member Uhring and Silverstein, are unemployed, and retired, and have never built or developed anything, these are issues they don’t understand. Therefore, it is up to the majority members (Grisanti, Riggins and Stewart) to actually recognize the reality of how things really work. It’s like this:

If The City Council is Dumb Enough to Adopt The Illegal Mazza ADU Ordinance And Discourage All Small Scale ADU Development, Then Wealthy Homeowners and Developers Will Simply Continue to Build Mansions and Max Out Their Allowed TDSF, and Build Larger Homes, Which are Clustered Under the LCP, Which Will Increase Density, Increase Roof Sizes, Increase Fire Risk and Reduce Overall Safety.

We ask that you recognize this reality, and instead of supporting more mansions and larger roofs and clustering, that instead, you preserve some of the smaller housing stock within the city and encourage, support and incentivize the construction of small scale one story ADUs, for the first time in Malibu history. In short, please don’t let the Malibu Toddler Council pull the wool over your eyes.

VII. A QUICK SUMMARY OF THE OBVIOUS ILLEGALITIES, MISTAKES, AND FLAWS IN THE ILLEGAL MAZZA ADU ORDINANCE.

The State ADU Statute was adopted five years ago. Malibu is one of the only remaining coastal cities has failed to adopt an ADU Ordinance. The purpose ofthe State ADU Statute (“State 5351496.3
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ADU Law”) is to streamline the construction of small scale one story affordable ADU housing by avoiding public hearings and coastal development permits, through 60 day “ministerial approval” of ADUs by the Planning Department. Because coastal enclave cities throughout California have misused public hearings, coastal development permitting, TDSF constraints, impermeable square footage constraints, and restrictions embodied in their Local Coastal Programs (“LCP”) to block, delay and derail small scale ADU housing, the State ADU Law specifically prohibits coastal cities like Malibu from attempting to block and delay ADU construction through the tactical misuse of the various restrictions contained within their LCPs that are unrelated to the protection of Coastal Resources. The State ADU Law also requires the creation of an exemption or “waiver” process through which homeowners that own qualified lots or who seek to construct an ADU that does not harm or implicate coastal resources can do so without the undue delays, expense and antidevelopment tactics that coastal enclave cities like Malibu have engaged in to block all residential development. The head of the Coastal Commission, Jack Ainsworth, recently instructed coastal cities to make sure to not misuse their existing LCP to block or discourage affordable one story ADU housing, and instead, to modify their LCP to support small scale ADUs while also protecting coastal resources. The State ADU Law also allows Malibu to potentially satisfy all or a portion of its entire 79 affordable RHNA housing unit requirement through the construction of qualified ADUs.

An additional recent law, effective January 1, 2022, titled Senate Bill 9, prevents coastal enclave cities such as Malibu from imposing any sort of deed restriction which would limit lot splits, and further streamlines the ability of homeowners to split qualified lots for the purpose of constructing additional small scale housing and ADU units. Senate Bill 9 is recent enough that Malibu has not yet had an opportunity to take its effect into account in the context of the two very different Proposed ADU Ordinances.

For an ADU Ordinance to be adopted, it must be approved by the Planning Commission, City Council and California Coastal Commission, with a final approval role of sorts played by the California Department ofCommunity Housing and Development (“HCD”), which refers cities that have adopted illegal or violative ADU proposals to the California Attorney General. The HCD’s current positions, and the Costal Commission’s current policy positions, indicate that the Coastal Commission and the HCD will REJECT the Illegal Mazza ADU Statue.

Two very different proposals have been drafted and submitted to Malibu’s Planning Commission and City Council, summarized as follows:

VIALIBU CUSTOMIZED ADU ORDINANCE [[LLEGAL MAZZA AJMJ ORDINANCE The ADU ordinance customized for The Illegal Proposed BBK ADU Malibu (“Malibu ADU Ordinance”) took Ordinance (“Illegal ADU Ordinance”): This input from Malibu customized residents, proposed ordinance violates the State ADU architects, land use consultants and real Law and also violates Senate Bill 9. It fails estate lawyers. It carefully limits the to make any material changes in the LCP to development ofADUs to ensure that harmonize the LCP with the State ADU Law Malibu’s small lot/hillside/canyon and and with Senate Bill 9, and does not appear densely developed neighborhood areas are ________________________________________ 5351496.3
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TVIALIBU CUSTOMIZED ADU O1wINANcE
protected, and provides that such
lots/locations are not exempt and must
comply with the public hearing/coastal
development permitting processes due to the
impact on coastal resources. This Malibu
customized ADU Ordinance also limits
mansionization by incentivizing and
streamlining smaller scale ADU housing so
that owners who could build mansions
instead voluntarily choose to build small
scale ADU housing units, which, in turn,
may enable Malibu to satisfy some of the 79
affordable “RHNA” housing units that
Malibu is required to approve/build during
the 202 1-2029 RHNA cycle. Finally, the
Malibu ADU Ordinance complies with both
the State ADU Law and Senate Bill 9, by
harmonizing the Malibu LCP as required by
the California Coastal Commission.

POSITIVES

ILLEGAL MAZZA ADU ORDINANCE
to focus in any way on the protection of
coastal resources or the Coastal Act.

The Illegal Proposed Ordinance also
discriminates against older homeowners and
owners of small homes and incentivizes
further mansionization by limiting the size
of proposed ADUs to 50% of the size of the
main house, which will result in more
demolition of smaller homes and the
construction of more mansions by absentee
owners. This Illegal ADU Ordinance also
fails to differentiate among and between
Malibu’s seven distinct neighborhoods,
which is a violation of Malibu’s General
Plan.

Finally, it contains an illegal deed
restriction which violates Senate Bill 9, and
contains unenforceable rental reporting
requirements for homeowners, while also
requiring unnecessary underground
demolition of streets by requiring separate
SCE metering when most properties do not
need or require separate metering. The
Illegal ADU Ordinance appears to be
intended to block, delay and disincentivize
any and all small scale ADU construction,
and will incentivize owners and developers
to avoid ADUs and instead build more
mansions (or mansions with ADUs), the
very sort of overdevelopment which Malibu
historically has sought to limit and avoid.

Sadly, under this Illegal Proposed
Ordinance, if a small number of owners
pursue permission to build a few ADUs and
are blocked, this Illegal ADU Ordinance is
so clearly illegal in violating the State
ADU Law that Malibu will likely be sued,
and lose, for any owner who wishes to
develop an otherwise compliant ADU that
adheres to the State ADU Law.
~EGATIVES
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~4AUBU CusToMIzED ADU ORDINANCE [LLEGAL MAZZA ADU ORDINANCE

1. Limits ADU development in small
dense hillside/canyon neighborhoods, by
requiring public hearing/CDP and
imposing the State ADU Law reduced
maximum square footage of 1,000 SF.

Malibu’s General Plan requires that
individual neighborhood
designs/aesthetics be taken in to account
when amending the LCP or Zoning
Code. This Malibu Customized ADU
Ordinance protects Malibu West, Big
Rock, Malibu Country Estates, and four
other densely developed hillside/canyon
neighborhoods.

1. Discourages ADUs by imposing a deed
restriction. No sophisticated owner will
want a deed restriction, thus, few or zero
ADUs will be built. Also, the city will be
unable to monitor or enforce the proposed
deed restrictions in the context of short
term rentals.

2. Complies with the State ADU Law. 2. Violates Senate Bill 9 by blocking future Does not seek to block or prevent ADUs lot splits if an ADU is permitted and based on existing TDSF or impermeable approved.

SF in the existing LCP, because the
State ADU Law expressly prohibits
Malibu from this sort of nimby antidevelopment_abuse.

3. Limits mansionization by encouraging 3. Violates State ADU Statute by blocking streamlined approval of qualified ADUs ADUs on lots where the existing house on large lots that do not implicate or maxes out allowed total square footage harm coastal resources. (“TDSF”). The State ADU Statute specifically prohibits this type of “nimby”
anti-development tactic. This “TDSF”
tactic has no connection to protecting
coastal resources.

1. Blocks short tenn rentals ofADUs, to ~. Violates the State ADU statute by blocking protect housing opportunities for locals ADUs on lots where the maximum and permanent residents and long term impermeable square footage has already tenants who may be qualified as RHNA been met by existing impermeable unit occupants. surfaces. This is a clear violation of the State ADU Law and there is no linkage to
the protection of coastal resources that
would justify it.

5. Encourages the retention of small 5. Improperly requires separate metering by existing homes, which can be remodeled Southern California Edison. No via the “yellow card/non-cdp” process. justification is provided. No protection of coastal resources arises from separate
metering.
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~‘IALIBU CUSTOMIZED ADU ORDINANCE TLLEGAL MAZZA ADU ORDINANCE

6. Prohibits beachfront ADUs due to 6. Violates State ADU Statute by imposing impact on coastal resources. existing LCP setback requirements, without any linkage to protecting coastal resources.

7. Limits the expansion of existing homes 7. Penalizes older homeowners of smaller, by expressly stating that exceeding older homes, by purporting to limit the size TDSF constraints in the existing LCP is of an ADU to 50% of the size of the not allowed where the ADU is existing main house. This encourages “attached” to the main residence, continued mansionization and will result in recognizing that is not a traditional ADU demolition of all small homes and the and is instead an attempt by a construction of more mansions. homeowner to disguise a home
expansion as an “ADU.”

8. Creates a well thought out approach to 8. Violates State ADU Law by prohibiting which lots/locations are suitable for a ADUs on old lots that already have a guest waiver/exemption from the public house. No effort to link this restriction to hearing/CDP processes and which can protecting coastal resources. be approved ministerially by the
planning_department.

9. Prohibits underground basements by 9. No legitimate or clear exemption or waiver recognizing them as a tactic to increase process for ADUs. Requires a coastal square footage unrelated to affordable development permit for detached ADUs, a housing. clear violation of the State ADU Law.

10. Limits bluff/ridge/hillside/canyon ADU 10. Erroneously attempts to track “Rental development to protect scenic views, Rates,” which is not germane to the RHNA which are a recognized coastal resource. 79 affordable housing units. The 79 RHNA units relate to the income level of the long
term tenants.
1 1. Continues city-wide protection of view 1 1. Because it violates the State ADU Law covenants by preventing roof lines or passing the BBK ADU Ordinance will intrusions that harm an adjacent strengthen the Riddick lawsuit against the neighbor’s primary view, whether City of Malibu.
mountain or ocean view.

12. Enables Malibu to satisfy some of its 79 12. Violates the vagueness legal standard for RHNA units by designing an income due process protection by using language level reporting process and a potential such as “other LCP development standards rebate ofADU fees paid to the city for may further limit the size of the ADU.” qualified RHNA ADU units.

13. Gives the planning department time to 13. Encourages mansionization by approve “eligibility” for a lot in a 30 day discouraging ADUs. time period, followed by a longer 90 day
process for ministerial approval of the
proposed ADU on a completed
application._This_streamlining_is
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~1ALIBU CusToMIzED ADU OIuMN~cE LLEGAL MAZZA ADU ORDINANCE consistent with the recommendations in
the_Baker Tilly_Report.

14. Prevents the demolition of small 14. Likely to prevent Malibu from satisfying existing housing stock by NOT any of the 79 RHNA units with ADUs. imposing a “50% of main house square
footage” cap, instead, recognizing that
ADU size should be correlated to lot
size and location, and should not
penalize older homeowners that still live
in small older homes on large lots.

15. Creates a sliding scale for allowed 15. Fails to customize ADU size based on lot square footage of ADU based on lot size and lot conditions. The Coastal size, small lots under a half acre are Commission January 21, 2022 capped at 1,000 SF, large lots of more memorandum and State ADU Law than 66,000 SF (1.5 acres) are capped at encourage larger ADUs on larger lots 2,000 SF. which do not harm coastal resources.

16. Imposes tracking obligation on income 16. Fails to protect specific small lot/densely level of the long teriri tenant for developed existing hillside/canyon purposes of RHNA qualification on the neighborhoods. Violates Malibu General owner, not the city, and enables a rebate Plan by failing to develop custom standards of fees for qualified RHNA ADU units. that are specific to individual neighborhoods.

17. Complies with Senate Bill 9 by allowing
owners to voluntarily agree to a lot split
restriction in exchange for receiving
expedited approval of an ADU.

18. Avoids illegal deed restriction linked to
routine ADU approval, avoids
unnecessary and inconsistent “separate
metering,” which would tear up more
residential streets without any public
policy reason_for_such_a_requirement.

19. Modifies “clustering” and
“neighborhood character” policies to
comply with the State ADU Law and
Senate Bill 9. The city’s “clustering”
policy actually increases the risk of fires
spreading from structure to structure and
vent to vent by forcing structures to be
too close to one another. Separating an
ADU from a main house with some
distance_can_reduce_the_risk_of fire,_and
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VIALIBU CUSTOMIZED ADU ORDINANCE ILLEGAL MAZZA ADU ORDINANCE increase the privacy ofresidents and
long term residents, and has no impact
on “neighborhood character” or on
coastal_resources.

20. Reduces the likely “apartment building”
density of the required 79 RHNA units,
by incentivizing ADUs which can
qualify, satisfy and eliminate “apartment
building” units as affordable RHNA
units.

21. States a clear fee structure to enable the
city to hire staff to support ADU
approvals on a ministerial level. This is
legal under the State ADU Law because
it involves ADUs that are qualified as
exempt, under a modification of the
LCP, with slightly larger allowed square
footage and ceiling height (18 feet above
grade)_than under_State_ADU_Law.

22. Slows down mansion approval by
directing planning department resources
to approving small ADUs that can help
the city meet its 79 RHNA unit
minimum.

NEGATIVES POSITIVES

1. The approach to requiring ADUs to not 1. The 1,200 SF and 400 SF garage size are be visible from bluffs or ridgelines or good public policy, but should be limited to major thoroughfare roads may be an lots larger than one acre. over-protective anti-development
approach to ADUs. Some level of
visibility from major roads could be
allowed.

2. The small size of ADUs allowed on 2.
large lots could be criticized as being
too_restrictive/too_small.

3. Far more progressive and customized 3.
neighborhood by neighborhood than
Malibu government is used to; typically,
Malibu adopts primitive “one size fits
all” incoherent anti-development
statutes_designed_to_block_all
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~‘1ALIBU CUSTOMIZED ADU ORDINANCE ILLEGAL MAZZA ADU ORDINANCE development and encourage people to
sell_and_leave.

L Rebate structure for qualified RHNA
units is a good economic deal for the
city, but the city has limited resources,
limited staff, and limited capacity to
monitor or enforce anything, so the fees
per ADU could be made non-refundable
even ifthe ADU qualifies as a RHNA
unit.

5. Too progressive/too creative on the 5.
incentive for voluntary agreement to no
lot split deed restriction under Senate
Bill 9. Senate Bill 9 is so recent
(January 2022 effective date) that
nobody in Malibu has yet had time to
study or analyze whether the
incentivized deed restriction in Section 6
is beneficial to Malibu and would
support lower density/smaller homes
than_without_Section_6.

6. Modification of “clustering” and 6.
“neighborhood character” policies in
Section 7 may be more than current
appointees and planning commission
members can handle. Relatively few
people understand or realize that the
City’s current LCP, LIP and Zoning
Code support and encourage that
nothing but large mansions will be built
mostly by absentee owners, and that the
tactical abuse of “clustering” and
“neighborhood character” policies by
city officials has resulted in wealthy
owners/buyers/developers advised by
architects and land use professionals to
“just go large” because building a
mansion bypasses any “clustering”
restriction and is now consistent with
most “neighborhood character” because
entire neighborhoods have succumbed to
mansion development by absentee
owners.
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The Malibu ADU Ordinance is the
better proposed ADU Ordinance. It will
slow down mansionization, expedite a
small number of safe and small scale
and appropriate ADUs, and will prevent
the destruction of all small homes in
Malibu. Further, if adopted, it protects
older homeowners of small older homes
from forced mansionization. It will also
help the city reduce density and over
development, and a certain number of
approved ADUs are likely to qualify as
RHNA units, which should limit the size
and height of any apartment building
that would otherwise need to be built to
satisfy the city’s 79 RHNA unit
requirement. Blocking short term
rentals, limiting any deed restriction to a
voluntary choice, and preventing
underground basements while protecting
primary views of adjacent neighbors
should also reduce the amount of
litigation. The effort to focus on defined
coastal resources as part of modifying
the LCP will ensure that the Coastal
Commission and HCD support the
Malibu Customized ADU Ordinance,
and will prevent Malibu from being sued
by its own local homeowners and
affordable home ownership non-profits.

The Illegal Mazza Proposed ADU
Ordinance is poorly written, violates the
State ADU Law in numerous respects,
violates Senate Bill 9, and is intended to
block and derail and disincentivize any
homeowner from building an ADU, and
invites litigation in those instances in
which a handful of homeowners seek
approval for an ADU and are either denied
or delayed. Further, it encourages the
demolition of small homes due to the “50%
of existing square footage” cap, which
results in an incentive for more mansions to
be built by absentee owners. On balance,
because the BBK proposed ordinance does
not make any changes to the LCP to
comply with the State ADU Law, and
contains illegal deed restrictions and other
unjustifiable development restrictions, it
appears that the underlying intent is to
block, delay, and derail all ADU
construction, which will have the effect of
resulting in more overdevelopment and
large mansions being built by absentee
owners.

VIALIBU CUSTOMIZED ADU ORDINANCE ILLEGAL MAZZA ADU ORDINANCE

CONCLUSION CONCLUSION
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Small Scale One Story Rural Housing and Accessory Dwelling Unit (“ADU”) Ordinance CITY OF MALIBU PLANNING COMMISSION RESOLUTION NO. 22-01

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MALIBU

DETERMINING THE AMENDMENTS ARE EXEMPT FROM THE CALIFORNIA

ENVIRONMENTAL QUALITY ACT AND RECOMMENDING THAT THE CITY COUNCIL

APPROVE THE FOLLOWING MALIBU AFFORDABLE ONE STORY RURAL HOUSING STATUTE, AS AN AMENDMENT 18-002 TO THE LOCAL COASTAL PROGRAM TITLE 17 (ZONING ORDINANCE) OF THE MALIBU MUNICIPAL CODE, TO MODIFY

REGULATIONS PERTAINING TO GUEST HOUSES AND ACCESSORY DWELLING

UNITS AND TO INCENTIVIZE, SUPPORT AND ENCOURAGE THE CONSTRUCTION OF

SMALL SCALE ENERGY EFFICIENT ONE STORY RURAL RESIDENTIAL HOUSING

UNITS WITHIN THE CITY OF MALIBU
The City Council of the City of Malibu does hereby find, intend, order and resolve as follows:

Section 1. Title, Legislative Intent And Recitals.

1.1 Title.

The title of this amendment to Malibu’s Local Coastal Program (“LCP”), Local Implementation Plan (“LIP”) and Zoning Code is the “Malibu Small Scale One Story Rural Housing And Accessory Dwelling Unit Ordinance,” or “Amendment.”

1.2 General Legislative Intent.

A. Malibu’s General Plan emphasizes the protection and maintenance of the natural environment, while appropriately limiting the size and scale of residential development in a manner consistent with both the (a) the rural residential nature of the individual neighborhoods within Malibu, and (b) the fragile land, ecosystems and natural environment within Malibu.

B. The State of California passed Government Code Section 65852.150 et seq. (the “Guest House Statute” or “ADU Statute”) for the express purpose of expediting and incentivizing the private construction of small scale one story affordable housing units, without a public hearing and without significant involvement, delay or obstruction by any municipality within the State of California. The express intent of the ADU Statute is to create additional small scale one story housing to address California’s housing shortage, and the ADU Statute itself expressly declares that any city zoning code or municipal regulation that would otherwise restrict or delay the construction of Guest Houses or ADUs that meet the minimum provisions of the ADU Statute are null and void and of no force or effect. On January 21, 2022, the California Coastal Commission expressly directs all coastal cities to modify and update their LCP to ensure that ADUs and JADUs that do not harm coastal resources are approved on an expedited and streamlined basis.

C. The State of California passed Senate Bill 9, sometimes refeffed to as the “Duplex Statute” or “Lot Split Statute,” which became effective on January 1, 2022. Like the ADU Statute, 351767.1 1
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the express intent of the Duplex Statute is to create additional privately funded housing units, without government financial assistance, to address California’s housing shortage, and to limit the delay and obstruction tactics are often utilized by municipalities to delay, block or prevent the construction of small additional housing units in their cities. As such, and within certain parameters, the Duplex Statute effectively outlaws Ri zoning statewide, and allows owners of lots to subdivide their lots and build additional housing units, as long as they meet the minimum requirements of the Duplex Statute. On January 21, 2022, the California Coastal Commission expressly directed all coastal cities to amend and update their LCP to ensure compliance with Senate Bill 9 to the greatest extent possible, while also protecting coastal resources.

D. Malibu’s General Plan supports and encourages small scale one story residential construction that can be visually harmonized with the local environment, and expressly discourages the widespread construction of two story mansions which can overwhelm the natural environment, and which consume more energy and force more gray water into storm drains (and the ocean) than smaller scale one story rural residential housing. Further, small scale one story “ranch” and “mid-century modern” homes are in keeping with Malibu’s history and rural character.

E. The ADU Statute and the Duplex Statute both encourage cities to adopt their own local affordable housing statutes, designed to streamline, expedite and incentivize the private construction of affordable small scale one story energy efficient housing units.

1.3 Specific Legislative Intent.

A. The ADU Statute expressly allows cities like Malibu to have approved ADU/Guest House dwellings that are privately funded and constructed by local residents to count toward the mandatory minimum number of”RHNA” affordable housing units that Malibu is required to build during 2021 to 2029. It is Malibu’s intent in passing this Affordable One Story Rural Housing Amendment to have as many of the required 79 affordable housing units under the 202 1-2029 RHNA minimum be satisfied by ADUs/Guest Houses that are built within the city in compliance with the passage of this Malibu Affordable One Story Rural Housing Amendment.

B. Malibu intends to incentivize, encourage and support the construction of small scale energy efficient one story housing units by private owners, without government funding or involvement, for the specific purpose of avoiding or limiting the construction of two or three story apartment buildings, which Malibu could otherwise fund or approve and allow to meet the minimum number of 79 affordable housing units as part of the mandatory RHNA unit assessment.

C. Malibu intends to increase its General Fund Revenue by quickly approving, incentivizing and encouraging the private construction of small scale one story energy efficient ADU/JADU housing stock within the city’s boundaries. This component of intent is designed to offset any future declines or reduction in General Fund Revenue that may arise due to Proposition 19, and the reassessments in valuation that will increase assessed property tax revenue after new small scale ADU/JADU housing units are approved, built and final inspections and certificates of occupancy are issued.
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D. Malibu intends to keep the overall size of homes as small as possible under the circumstances, and to limit to the extent possible the further subdivisions and lot splits that would otherwise increase residential density. Malibu acknowledges and recognizes that without supporting and incentivizing the construction of small scale one story energy efficient housing stock, the city itselfwill continue to be subjected to the construction of large mansions by absentee owners. Further, Malibu acknowledges and recognizes that without creating incentives to voluntarily discourage lot splits, many existing owners, new owners and developers may pursue lot splits and increase the residential density and change what are currently “one house on one large lot” scenarios into R2, R3 and R4 development scenarios, as contemplated and allowed by the Duplex Statute.

E. Malibu continues to intend to limit the construction of short term vacation rental housing units, which do not provide affordable housing options for local residents. Thus, any one story housing unit constructed under the ADU Statute or Malibu’s Affordable One Story Rural Housing Amendment may not be utilized by owners as a short term vacation rental, and must be made available for long term occupancy by either the owner, the owner’s extended family members, or a monthly tenant that may or may not qualify under the income level categories mandated by the 2021-2029 79 RHNA affordable housing units Malibu is required to build or approve. There is no rent control ordinance in Malibu, and Malibu does not intend to adopt a rent control ordinance.

F. Malibu does not intend to allow or construct high density, three story apartment rental housing of any kind on the three strategic parcels of raw land that Malibu owns in Trancas, Heathercliff or the Civic Center. It is the intent ofthe Malibu Affordable One Story Rural Housing Amendment to ensure that those three strategic parcels ofraw land can be preserved for other uses suitable for local residents, such as parkland.

Section 2. Statutory Provisions Governing The Incentivized Construction Of Small Scale One Story Affordable ADUs, Guest Houses And Small Homes.

2.1 No Short Term Rentals Allowed For All One Story Affordable Housing Units Approved Under This Amendment.

The City of Malibu faces intense demand for short term rental housing product, at high rental rates, but the loss of affordable housing units to short term vacation renters has played a causal role in creating the shortage of affordable housing units for Malibu’s permanent and new long term residents. Any and all ADU/JADU housing units approved and built under this Amendment may not be utilized by an owner for short term rentals of less than 30 days. One purpose of this Amendment is to provide long term affordable one story housing for residents of Malibu, not to generate rental income for owners from tourists renting homes on a short term “vacation rental” basis.

2.2 Roof Height Cannot Exceed Eighteen Feet From Grade.

Any and all ADU/JADU housing units approved under this Amendment must be limited to a maximum height of any roof at eighteen (18) feet above grade. For purposes of insulation, storage, location of ducting or HVAC equipment, ventilation, heat retention, heat expulsion, a 351767.1 3
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housing unit approved under this Amendment can utilize the space between a roof and a “drop ceiling” to locate ducting, HVAC equipment, insulation and/or heat retention or heat expulsion skylights or similar energy conservation equipment. Use of dormer windows or other windows for small usable second story square footage is permissible, subject to the 18 feet above grade height cap.

2.3 No Underground Basement.

No excavation or grading for purposes of constructing an underground basement space will be allowed in any ADU, JADU or Guest House unit approved under this Amendment.

2.4 No Expansion Of Primary Residence In Violation Of TDSF/LCP Allowed For ADUs.

A JADU differs from an ADU, in that a JADU incorporates livable square footage that is contained entirely within an existing floor plan or existing footprint of an existing residence, and a JADU does not contemplate an expansion of the footprint of the primary residence or dwelling.

ADUs may not exceed the allowed total development square footage (TDSF) ofthe main residence under the existing LCP by being attached to the main residence while seeking an expansion of the main footprint and increase in existing square footage of an existing main residence. This restriction is because expanding a main residence is generally not the sort of separate one story small scale affordable housing contemplated by this Amendment, and the expansion of primary residences reduces the available buildable land on any given lot which could therefore constrain and limit otherwise viable ADUs and Guest Houses, which would actually undermine and negate the intent of this Amendment, the ADU Statute and the Duplex Statute, all of which seek to incentivize and expedite the construction of separate small scale affordable one story ADU and/or Guest House housing stock.

Section 3. The Waiver And Exemption Procedure For Ministerial Approval Of Certain Qualified ADUs And JADUs, The Modification Of The Malibu LCP To Harmonize The LCP With The ADU Statute And The Duplex Statute, While Also Protecting Coastal Resources.

The California Coastal Commission instructed coastal cities on January 21, 2022 to modify their LCPs in order to ensure that any LCP is harmonized with Senate Bill 9 and the ADU Statute, in order to ensure that affordable small scale ADUs, JADUs, Guest Houses, and Lot Splits are streamlined, incentivized and expedited, and to do so in ways that are fully protective of coastal resources, consistent with Coastal Act. Through this Amendment, Malibu intends to comply with the January 21, 2022 instructions ofthe Coastal Commission by fully protecting coastal resources, public beach access, and scenic visual resources, by carefully limiting the lot splits, ADUs, JADUs and Guest Houses that are suitable for a waiver and/or exemption from the normal public hearing coastal development permit process, as described below in this Section 3. 351767.1 4
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3.1 Lots, Parcels, Neighborhoods And Geographic Areas That Are Not Suitable For A Waiver Or Exemption, And For Which A Public Hearing And Coastal Development Permit Is Still Required, And For Which The Maximum Allowed Square Footage Under The ADU Statute Would Be Allowed In The Event A Coastal Development Permit Is Issued After A Public Hearing.

The lots and locations identified below in this Section 3.1(a) through (d) are generally not exempt or eligible for a waiver of the standard public hearing coastal development permit process, unless the proposed ADU or Guest House sought by the applicant complies with the maximum square footage caps allowed by the ADU Statute (800 square feet for a one bedroom ADU; 1,000 square feet for a two bedroom ADU). Instead, the lots and locations identified below in this Section 3.1(a) through (d) can pursue the development of an ADU, JADU or Guest House under the ADU statute in one of two discrete pathways, either through (i) compliance and adherence to the standard public hearing and coastal development permitting process pursuant to the existing LCP, or (ii) applications limited to the minimum size of ADU (800 square feet for a one bedroom ADU; 1,000 square feet for a two bedroom ADU) allowed under the ADU Statute can, at the option of the applicant, be sought via a ministerial approval pathway, without a public hearing or without a coastal development permit process, subject to the discretion of the planning department to transfer the application into the public hearing/coastal development process in the event that the planning department believes that a particular ADU or Guest House impacts coastal resources in a hai-mful way. The limited eligibility for an exemption or waiver for the lots and locations identified below is because the lots and locations identified in subsections 3.1(a) through (d) below have unique implications for coastal resources (steep hillsides; beach or ocean front; visible from major roads; densely developed fire prone areas or areas with unstable soil and steep slopes), and the Coastal Act and existing LCP generally provide an adequate way for the balancing inherent in harmonizing the need to protect coastal resources with the need to streamline and incentivize ADUs. Rather than prevent, prohibit or discourage all eligibility for an exemption or waiver from the public hearing/coastal development process, the City of Malibu has instead allowed small ADUs compliant with the maximum square footage of the ADU Statute to still seek an exemption or waiver, to streamline minimal impact small ADU structures even in these identified neighborhoods.
(a) Beach lots on the sand. The Coastal Act states expressly that further development of lots on the public beach, sand or near the high tide line, are to be discouraged due to sea level rise, existing density, protecting public beach access, and negative impacts on scenic visual resources. The existing LCP as approved by the Coastal Commission strongly discourages any development or construction on the sand, beach or near the high tide line. In general, ADUs, JADUs and Guest Houses and lot splits will ~be allowed, or will be strongly discouraged, for lots on the sand, beach or near the high tide line. This does not prohibit or preclude the owner of a beachfront lot from attempting to obtain a Coastal Development Permit at a public hearing for approval of an ADU, JADU or Guest House on a beachfront lot. (b) Ocean Front Bluffs/Cliffs/Hillsides Visible From The Ocean, A Public Beach, Or PCH.

ADUs, JADUs and Guest Houses are not exempt or eligible for a waiver if any significant portion of the structure is visible from the sand, beach or Pacific Coast Highway. 351767.1 5
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(c) Sloped Hillside Lots Where A Proposed ADU, JADU Or Guest House Would Be Visible From Pacific Coast Highway, Or Other Major Canyon Thoroughfare Roads.

Malibu contains thousands of acres of steep hillsides and canyons oflen with unstable soil, including cut and fill compacted grading work, along with public canyon thoroughfare roads that provide the public with scenic views, which are defined as a scenic coastal resource under the Coastal Act. ADUs, JADUs and Guest Houses are not exempt or eligible for a waiver if any significant portion ofthe structure is visible from Pacific Coast Highway, Deer Creek Road, Yerba Buena Road, Mulholland Highway, Decker Road, Encinal Canyon Road, Kanan Durne Road, Latigo Canyon Road, Malibu Canyon Road, Con-al Canyon Road, Las Flores Canyon Road or Carbon Canyon Road.
(d) Small Lot Neighborhoods On Slopes/Hillsides With Dense Existing Development Or Adjacent To Fire Prone Canyons, Creeks Or Potential Subsidence Events Due To Steep Hillsides.

The following neighborhoods are already densely developed with single family homes on small lots in areas in which the topography is either steeply graded “cut and fill” slopes or hillsides, immediately “above” or adjacent to nearby neighbors, with relatively small building pads, next to property lines or existing structures, and/or in canyon or hillside areas in which fires can move rapidly, or with unstable soil, or near ESHA or creek/streamside areas, and these areas are not suitable for exemptions or waivers, and are better suited to undergo public hearings and standard coastal development permit processing: (a) Malibu West/Trancas, as shown on Exhibit A, the Trancas map, (b) Malibu Country Estates (but excluding the lots which border John Tyler’s Drive), as shown on Exhibit B, the Malibu Country Estates map, (c) Big Rock, as shown on Exhibit C, the Big Rock map, (d) The Valmere/Seabreeze/Sequit subdivision west of ColTal Canyon Road, as shown on Exhibit D, the “Valmere/Corral Canyon” map, (e) Las Flores Canyon, as shown on Exhibit E, the Las Flores Canyon map, (f) the steep hillside/canyon west of Cross Creek, visible from Pacific Coast Highway, including all homes/lots located on Malibu Crest Drive, Harbor Vista Drive, Colony View Circle, Malibu Knolls Road and Coast View Drive, and (g) the hillside canyon, neighborhood off Latigo Canyon Road, including the houses on Calicut Road, Latigo Bay View Drive, Hillview Drive, Ocean View Driver and Escondido Drive.

3.2 Lots And Neighborhoods With Characteristics Suitable For A Waiver Or Exemption Application Which, If Approved, Exempts The Lot, ADU, JADU Or Guest House From A Noticed Public Hearing And Exempt From The Coastal Development Permit Process, And Which, If Granted, Enables Ministerial Approval Of The ADU, JADU Or Guest House By The Planning Department, Without The Involvement Of The Planning Commission And Without The Involvement Of The City Council.

The Coastal Commission’s January 21, 2022 guidance letter recommends that coastal cities like Malibu should identify neighborhoods and/or the types, locations or sizes of lots that are suitable for exemptions or waivers in connection with allowing ministerial approval of proposed ADUs, JADUs or Guest Houses. Any owner in Malibu can apply for an exemption or waiver from the Planning Department, and the Planning Department itself will have the discretion to decide whether to grant an exemption or waiver. The statutory guidelines that will detetmine whether an 351767.1 6
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exemption or waiver will be granted for any such ADU, JADU or Guest House which meets all four criteria (a)-(d) below in this Section 3.2:
(a) ADUs, or JADUs or Guest Houses that are not visible from the ocean or from the specific major canyon thoroughfare roads identified in Section 3.1(c) of this Amendment, and which are not located in the specific densely developed neighborhoods identified in Section 3.1(d) of this Amendment.
(b) ADUs or JADUs or Guest Houses on flat lots more than a half-acre in size, in which the ADU, JADU or Guest House itself will be built on flat land or a minimal slope less than a 1:1 slope grade and within the normal development area for the lot at issue. (c) Mostly flat discrete neighborhoods or large lot gradual sloped neighborhoods or areas such as Point Dume, Malibu Park and the Escondido Beach Bluffs (on the ocean side of Pacific Coast Highway), as well as other lots larger than one acre in which the ADU, JADU or Guest House is not visible from the major canyon thoroughfare roads identified in Section 3.1(c) of this Amendment.
(c) Lots of more than one acre (44,000 square feet) square feet in which the ADU, JADU or Guest House poses no substantial impact to the primary ocean view or primary mountain view of all immediately adjacent neighbors.

3.3 Continuing Protection Of Primary View Rights.

Though story poles will not be required for the small scale one story housing units which are approved as exempt or eligible for a waiver under this Amendment, the existing provisions in Malibu’s land use codes concerning the protection of primary ocean or mountain views remain binding and are in full force and effect. Thus, no affordable one story housing unit will be administratively or “ministerially” approved if the Planning Department determines in its or it - reasonable discretion that the proposed structure or its roof line violates a protected primary view right of any immediately adjacent neighbor and which exists in Malibu’s various land use codes.

Owners that wish to challenge the findings or decisions of the Planning Department in this regard must go through the longer and much more expensive processes and procedures inherent in public hearings in front of the Planning Commission, with appeal rights in front of the City Council, per the existing land use codes, as part of obtaining a Coastal Development Permit.

3.4 Soils, Percolation And Septic System Compliance.

A completed application to the Planning Department for expedited exempt administrative approval of a small scale one story housing unit approved under this Amendment must still provide a soils/percolation test from a soils engineer, or must otherwise provide proof of lawful septic treatment capacity through an existing septic system, or a new code-compliant separate septic system that complies with existing Malibu land use codes. 351767.1 7
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3.5 Reducing Burden On Plannmg Department: Separation Of The 30 Day Application/Approval Process For An Exemption/Waiver For A Specific Lot Or Parcel, As Distinct From The 90 Day Completed Application/Approval Process For An Exempt ADU, JADU, Guest House Or Small Home.

Streamlining the approval process for small one story ADUs, JADUs, Guest Houses or Single Family Homes can be done in a way that minimizes the burden on full time city Planning Department staff, by separating the process through which (a) lots are approved as exempt or eligible for a waiver within 30 days, from (b) the longer 90 day ministerial approval process for an exempt ADU, JADU, Guest House or small home, which requires a completed application, percolation test, and architectural drawings. The purpose of the first 30 day application for an exemption or waiver for a given parcel or lot requires that the owner submit an application of no more than three pages in length, identifying the specific lot by street address and parcel number, with a vertical site plan and elevation drawings which clearly delineates and fully reveals the specific location and exterior perimeter walls and roof lines (including any roof overhangs) that differentiates the main house from any ADU, Guest House or small home, including the location of any enclosed JADU that is to be contained within an existing home. JADUs under the ADU Statute do not require any formal exemption or waiver, and will be ministerially approved so long as they comply with the ADU Statute and do not violate Section 2.4 of this Amendment.

Section 4. Square Footage Caps And Square Footage Maximums, Fee Structure, Limited Rebates For RHNA Qualified Units.

4.1 Preventing Mansionization And Preventing High Density, Encouraging Small Scale One Story Privately Funded Rural Housing Units.

California’s existing Senate Bill 9 (the “Duplex Statute”) and Government Code Section 65852.150, et seq. (the “ADU Statute”) provide for a range of minimum allowed building constraints on setbacks, roof height and building size. However, Malibu still contains many large buildable lots, in excess of one acre, and lots up to 40 acres (or larger) in size. As such, any allowed square footage figure that would be based on a percentage size of a large lot, could be misused by a developer or owner to construct an overly large guest house, or a mansion-like second home. By way of example, a five acre lot contains over 220,000 square feet of raw land; thus, if a “guest home” were allowed to consume as little as 3% of the size of a five acre lot, a developer owner could erect a “guest house” that was itself 6,600 square feet, which is clearly not a small affordable one story rural home, and is instead a high priced “mansion.” Thus, due to the large number of large acreage lots that still exist in Malibu, the maximum allowed square footage under this Amendment will not be expressed or identified as a percentage of the total square footage of any given lot, and will instead be capped by a specific number of allowed square feet. Secondarily, and because Malibu’s General Plan seeks to ensure that residential construction does not overwhelm the natural environment or create a visual blight, and residential construction is supposed to blend in with natural environment, the allowed square footage maximums will correlate to lot size, so that smaller lots require smaller ADUs, smaller guest houses and smaller homes, and larger lots are still capped out at allowed maximums that (a) qualify as “small square footage,” affordable dwelling units, and (b) would potentially rent on a monthly basis to lower and middle income tenants so as to enable the city to potentially meet a portion of its minimum affordable 2021-2029 79 RHNA housing units.
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4.2 Maximum Square Footage For ADUs, Guest Houses, According To Lot Size.

For lots less than one half acre in size, the maximum allowed square footage for an ADU or Guest House will be the existing 1,000 maximum square feet in the California ADU Statute. In Malibu, lots that are one half acre or less are viewed as “small” or average, and that level of lot size should not allow for any increased square footage beyond the minimum allowed ADU size provided for in the existing California ADU Statute. With respect to lots larger than one-half acre in size, and which are eligible under Section 3.2 above for exempt status, the following square footage maximums shall apply, based on the size of the lot at issue:
o Lots between one half acre and three fourths of an acre: instead of the California allowed maximum of 1,000 square feet, an ADU or guest house may be as large as 1,200 square feet.
o Lots between three quarters of an acre and one full acre: instead of the California allowed maximum of 1,000 square feet, an ADU or guest house may be as large as 1,500 square feet.
o Lots between a full acre and 1.5 acres in size: instead of the California allowed maximum of 1,000 square feet, an ADU or guest house may be as large as 1,800 square feet.

The area of a garage (400 square feet maximum) provided as part of an accessory dwelling unit and exterior decks or overhangs that are attached to the structure shall ~be included in the maximum allowed square footage limits set forth in this 4.2.

4.3 Fee And Rebate Structure.

4.3.1 Minimum Fees For Ministerially Approved One Story ADUs And Guest Houses; Rebate Allowance Scenarios For RHNA Qualified Units/Occupants.

The ADU Statute and Senate Bill 9 allow cities to charge fees for the expedited “ministerial” approval of small one story ADUs/JADUs or Guest Houses. The fee for approvals of exempt ADUs, JADUs or Guest Houses by the Planning Department without a public hearing will be $2,000 per ADU/JADU or Guest Home. That $2,000 fee will be non-refundable to the applicant/owner. However, the applicant will be eligible to apply for and receive a rebate and will qualify for a rebate if (a) the owner/applicant has qualified the approved ADU/Guest House as an affordable RHNA unit due to long term occupancy by a lower or middle income tenant or resident, and (b) the City of Malibu is afforded credit for that ADU/JADU or Guest House as one of the 2021-2029 RHNA 79 affordable housing units.

4.3.2 Restricted Eligibility For Rebates Of The $2,000 Per Unit Fee.

The California Department ofHousing and Community Development (“CDHCD”) and the ADU Statute have created an environment in which receiving credit for satisfying the lower to middle income thresholds for the required 79 affordable housing units during the 2021 to 2029 time period is discretionary, and uncertain, and at the discretion of the CDHCD, and Malibu may not be able to change or alter decisions made by the CDHCD in this regard. Thus, Malibu does not 351767.1 9
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guarantee or promise that any rebate or refund of the $2,000 per unit fee will happen, and the owner/applicant accepts that any such refund may never happen, and Malibu is not responsible for tracking or monitoring or verifying the income levels of the occupants of the approved ADU/JADU or Guest House over time, that obligation is on the owner/applicant for purposes of any rebate or refund of a $2,000 fee. The burden is on the lot owner to show eligibility for a refund of the $2,000 fee.

Section 5. Time Limits Associated With Ministerial Approval By The Planning Department, And No Public Hearings, And No Coastal Development Permit.

5.1 Ninety (90) Day Time Period For Ministerial Approval Without A Public Hearing.

The Malibu Affordable One Story Affordable Rural Housing Amendment provides special incentives, a $2,000 per unit fee, for ADUs/JADUs and Guest Houses that are larger than the minimum 1,000 square foot size provided for by the ADU Statute. For lots eligible for exemption or waivers, the time period in which the Planning Department will approve or deny any such permit for an ADU/JADU or Guest House on a “ministerial” basis without a public hearing will be ninety (90) days from the owner/applicant’s submission of a completed application. Because the construction of such ADUs, JADUs or Guest Houses are slightly larger than the 1,000 square foot maximum amount contemplated by the ADU Statute, the ADU or Guest House at issue and the completed application must provide a clear evidentiary showing that (a) all primary view rights of adjacent neighbors are protected, (b) adequate percolation of the soil and code compliant septic capacity, (c) drought resistant landscaping exists or will be planted, and (d) fire hardened surfaces and energy efficiency and adequate stormwater drainage systems exist. The purpose ofthis Malibu Affordable One Story Rural Housing Amendment is to expedite, simplify and cheapen the process through which small one story ADUs/JADUs and small Guest Houses, ancillary to the main residence, can be built, in order to privately create, fund and build more small scale housing units.

As such, there is to be no public hearing, no Coastal Development Permit, and no involvement or discretion from the Malibu Planning Commission or Malibu City Council in connection with ADUs, JADUs and Guest Houses that comply with the ADU Statute or which are approved by the Planning Department ministerially under the Malibu Affordable One Story Rural Housing Amendment. If an owner/applicant does not receive an approval or denial from the Planning Department withing the ninety (90) day time period, the proposed ADU, JADUs or Guest House will be deemed approved. Any ministerial denial by the Planning Department can be appealed through the normal public hearing process in front ofthe Planning Commission with appeal rights to the City Council.

Section 6. Incentives To Avoid And Prevent Higher Density Lot Splits Under Senate Bill 9; Maximum Size Of 2,500 Square Feet For One Story Rural Homes Capped At 18 Feet Of Roof Height, For Lots Larger Than One Acre; Fee Structure; Appeal Rights If Denied.

Senate Bill 9 will, if not addressed by the City of Malibu, result in an unknown number of higher density lot splits on existing residential lots within the City of Malibu. The use of labels, such as “High Fire Severity Zone” may not be pre-empted by Senate Bill 9, and may not prevent lot splits under Senate Bill 9. While Malibu does not intend to violate or ignore Senate Bill 9, Malibu does have the legal right to incentivize existing and future owners of lots more than one 351767.1 10
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acre in size to voluntarily reduce future density and to encourage (a) the construction of single story affordable homes (including ADUs, JADUs and Guest Homes) which are smaller than the allowed square footage maximum (“TDSF”) contemplated by Malibu’s existing Local Coastal Plan and Local Implementation Plan, and (b) owners to retain a single lot and not subdivide their lots into one, two or three separate lots. Under Section 3.6K of Malibu’s Local Implementation Plan, the allowed total development square footage for lots larger than one acre is calculated as a straight mathematical formula, in which the square footage of a residence or home is capped at a particular percentage of total developable square footage (sometimes refened to as the total “TDSF” percentage or ratio), or, for smaller lots of 5,000 square feet or less, at a maximum square footage of 1,885 square feet for the dwelling itself. This Section 6 of the Malibu Affordable One Story Rural Housing Amendment applies to and allows owners of residential lots larger than one acre to secure “ministerial” approval within ninety (90) days of a completed application to build a second home capped at no more than 2,500 square feet, if, and only if, the owner can show that (a) their lot is more than one acre in size and is not located in any Section 3.l(a)-(d) locations, (b) their lot is otherwise eligible for a lot split or subdivision under Senate Bill 9, and (c) the allowed home afier a lot split under Senate Bill 9 could be two stories (and have a basement) which could in total exceed 2,500 square feet, and (c) the owner has agreed to a recorded deed restriction to not split the lot as a contractual concession for the city’s willingness to grant an expedited permit to construct a one story home up to 2,500 square feet in size on a ministerial basis, without a public hearing, and without a required Coastal Development Permit, within ninety (90) days of the owner’s completed application being submitted. Approval by the Planning Department can be provided by either the express granting of the building permit, or by silence afier the passage of ninety (90) days of the owners’ submission of a completed application. The fee charged to the owner for the processing of a completed application for a one story home up to 2,500 square feet in size on lots larger than one full acre will be $5,000 per home. Denial of such an application on an expedited ministerial basis does not preclude or prohibit an owner from undergoing the public hearing/CDP process in front ofthe Planning Commission, with full appellate rights in front of the City Council. Lots smaller than one acre within Malibu are generally not suitable for higher density development in a “duplex” or “triplex” scenario, and would likely have a direct or indirect impact on coastal resources. Thus, this expedited incentive for ministerial approval of small scale one story homes of 2,500 square feet or less exists only for lots larger than one full acre. Lots that are less than one full acre would not be eligible for expedited ministerial approval of a second home, but owners of all residential lots are allowed to pursue development in compliance with Senate Bill 9 and whichever Malibu building, zoning and local coastal codes then exist.

Section 7. Modification Of “Clustering” And “Neighborhood Character” Policies For Small Scale One Story Housing Units Approved Under This Amendment.

The Malibu Local Coastal Plan and Local Implementation Plan each have vaguely worded policies purportedly in support of the “clustering” of accessory structures and/or guest residences close to primary homes within acceptable building envelopes, with vague cross referencing to an unsupported notion that “clustering” will “reduce fuel modification,” and an implied suggestion that “clustering” will help with fire prevention or fire truck access. These “clustering” policies may actually increase the destructive effect of spreading wildfires and burning multiple structures, because closely “clustered” structures are more likely to spread embers from structure to structure and roofto roof and vent to vent. The LCP and LIP also contain vague references to “neighborhood character,” which are subjective and can be easily manipulated by planning commissioners that 351767.1 11
244
DRAFT
are in favor of zero development and prone to deny even acceptable building pennits. Small one story energy efficient ADUs/JADUs/Guest Homes and small homes that are approved under this Amendment are to be approved without regard to “neighborhood character,” and it is acknowledged that rural one story small scale homes limited in height and size are a type of housing that is the sort ofrural residential aesthetic that Malibu would like to preserve even ifprior development has limited or altered any sort of uniform or singular aesthetic character within a neighborhood. The “clustering” ofADUs/JADUs or small homes within ten (10) feet of a primary home is not required or encouraged under this Amendment, and creating some distance among and between structures is favored and recognized by the Planning Department as a mechanism for reducing the risk that fires will spread from structure to structure, and enhancing privacy, provided that all ADU/JADUs must be located in lot areas appropriate for development and consistent with the protection of coastal resources.
351767.1 12
245
STATE OF CALIFORNIA—THE RESOURCES AGENCY GAVIN NEWSOM. GOVERNOR

CALIFORNIA COASTAL COMMISSION
455 MARKET STREET, SUITE 300
SAN FRANCISCO. CA 94105- 2219
VOICE (415) 904-5200
FAX (415) 904-5400
W W W. COASTAL CA .~1O)L
To: Planning Directors of Coastal Cities and Counties
From: John Ainsworth, Executive Director, California Coastal Commission Date: January 21, 2022
Re: Implementation of New SB 9 Housing Laws in Sea Level Rise Vulnerable Areas As of January 1, 2022, SB 9 (Atkins) changed the way that local governments can regulate new residential development and lot splits in single-family residential zones within designated urban areas, with the goal of increasing housing density in those areas. The new housing laws added by SB 9, Government Code Sections 65852.21 and 66411.7, contain Coastal ..--. Act savings clauses.

This means that, except for public hearing requirements, the Coastal Act continues to apply in full force in the coastal zone. Accordingly, certified Local Coastal Program (LCP) provisions continue to apply but, in most places, will need to be updated to conform with SB 9 to the greatest
on how to harmonize the new
extent ossible while~
SB 9 requirements with LCP and Coastal Act policies in areas that are vulnerable to sea level risebecause increasing residential density in these areas presents unique challenges and risks. When updating LCP5, local governments should keep in mind that LCP provisions must continue to be consistent with all applicable Coastal Act policies in all areas.

I. Housing in the Coastal Zone
The State of California is experiencing a critical shortage of affordable housing. In recognition of this critical shortage, the state Legislature passed numerous laws in recent years aimed at increasing construction of additional housing units, and preferably affordable units.Many of these measures, including SB 9, state that they do not supersede or lessen the application of the Coastal Act. The Coastal Commission (Commission) recognizes the particularly critical shortage of affordable housing in the coastal zone ~~s~st~Qpgly supported stra~~~~ ~
increase access to affordable housing near the coast. To address housin shortages in the locations and
with designs that ensure it will be safe from hazards, have access to adequate public services, and will minimize coastal resource impacts.

Importantly, siting new housing in areas projected to be impacted by sea level rise, without planning for adaptation, will not address the housing crisis over the long-term and will instead put more residences and lives at risk and exacerbate housing shortages. The hazards and other impacts associated with sea level rise require local governments to plan carefully to ensure that new housing is safe both now and for future generations. Likewise, effective January 1, 2022, a 1 246
new section was added to the Coastal Act that explicitly requires the Commission to “take into account the effects of sea level rise in coastal resources planning and management policies and activities in order to identify, assess, and, to the extent feasible, avoid and mitigate the adverse effects of sea level rise.” (Pub. Res. Code § 30270.) While the Commission has considered sea level rise in its planning, policies, and activities for many decades, the new section of the Coastal Act further emphasizes the importance of accounting for sea level rise.

New residential development in the coastal zone must be consistent with Coastal Act and LCP policies, including requirements relating to protection of coastal resources and hazards, such as Coastal Act Sections 30250, 30253, 30235 and 30240, as discussed further below. In addition to these requirements, a variety of other provisions in the Coastal Act relate to housing in the coastal
complying
zone.
with
As
state
relevant
and
~
federal law “with respect to providing low- and moderate-income ~~housing, relocation benefits, or any other obligation re ate to ho~~ (Pub. Res. Code § 30007.) The
Coastal Act also requires the Commission to encourage housing opportunities for low- and moderate-income households ( Pub. Res. C~~iö~fj~b states ti at 7nio local coasta I ~ program shall be required to include housing policies and programs.” (Pub. Res. Code § f ~ 30500.1.) Lastly, the Coastal Act regulates where new development can be sited. New residential development must be “located within, contiguous with, or in close proximity to, ~~ti~e~eiopeci areas able to accommodate it” or in other areas where development will not have significant adverse effects, either indiviaually or cumulatively, on coastal resources (Pub.

Res. Code § 30250(a).) Land divisions, other than leases for agricultural uses, are permitted outside existing developed areas “only where 50 percent of the usable parcels in the area have been developed and the created parcels would be no smaller than the average size of surrounding parcels.” (Pub. Res. Code § 30250(a).)
II. Overview of New Legislation
As of January 1, 2022, SB 9 adds Government Code Sections 65852.21 and 66411.7, and amends Government Code Section 66452.6. The new laws apply only to parcels located in: (ia) a city that includes some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, within the city’s boundaries; or (b) an unincorporated area, and the parcel is located entirely within either an urbanized area or urban cluster, as designated by the United States Census Bureau. (Gov. Code §~ 65852.21(a)(1), 66411.7(a)(3)(B).) Currently certified LCPs are not superseded by the new laws and continue to apply until an LCP amendment is adopted.

The new legislation makes two primary~changes to existing law:
2 247
a. Ministerial consideration of proposals to develop two or fewer residential units in urban areas
~T~or projects outside the coastal z~~~local governments must now ministerially consider, without discretionary review, proposals to develop two or fewer residential units in a singlefamily residential zone in designated urban areas when certain criteria are met. (Gov. Code § 65852.21.) Proposals to construct two new residential units and proposals to add one new unit to a parcel with an existing unit are both covered by this section. (Gov. Code § 65852.21(i)(1).) For ministerial consideration of proposed residential development to be required, proposals must meet the many criteria set forth in the statute, including that rental of any new unit created is for a term longer than 30 days. (See Gov. Code § 65852.21(a), (d)-(g).) Local governments are free to adopt objective zoning, subdivision, and design review standards for development of residential units in any residential zone that do not conflict with Government Code Section 65852.21. (Gov. Code § 65852.21(b)-(c).) This new section of the Government ~
Code does not supersede or in any way alter application of the Coastal Act, except that local for coastal deveIoprn~mi~(~P
applications. (Gov. Code § 65852.21(k).) This means that, aside from CDP public hearing requirements, Government Code Section 65852.21 does not override the Coastal Act or LCP policies implementing the Coastal Act, which may involve the application of discretion.

Therefore, local governments should adopt LCP amendments with standards that harmonize ~
SB 9 requirements as much as is feasible and that also ensure such new development is applicable LCP policies, inc u ng requirements relating to notice of local decisions to the public and the Commission. b. Ministerial approval of urban lot splits
CFor projects outside the coastal zon~Jlocal governments must now ministerially approve lot ~‘~~1its that create no more than Iwcn1~w lots in single-family residential zones in designated urban areas when certain criteria are met, (Gov. Code § 66411.7). However, as with the new requirements regarding residential development, this section of the Government Code does not supersede or in any way alter application of the Coastal Act, except that local governments are not required to hold public hearings for coastal development permit (CDP) applications. (Gov. Code § 66411.7(o).) Accordingly, for projects in the coastal zone, review for consistency with Coastal Act and applicable LCP policies is still required, and that may involve the application of discretion. For ministerial approval to be required outside the coastal zone, proposals must meet the many criteria set forth in the statute, including that no more than two new lots are created, and thatrental of any new unit created is for a term longer than 30 days. (See Gov. Code § 66411.7.) Although discretionary review is prohibited in these circumstances in non-coastal zone areas, local governments are free to adopt objective zoning standards, objective subdivision standards, and objective design review standards applicable to urban lot splits that do not conflict with Government Code § 66411.7. (Gov. Code § 66411.7(c), (e).) 3 248
Although the new laws do not supersede the Coastal Act, and the requirement for ministerial approval does not automatically apply in the coastal zone, the laws should be harmonized with the Coastal Act as much as feasible. This could be accomplished, for example, by updating LCPs to create a checklist of~so that Uttle or no discretion i~J~_volved when considering them. Overall, local governments should adopt LCP amendments with standards to ensure that such new development is consistent with the Coastal Act and any applicable LCP policies, including requirements relating to notice of local decisions to the public and the Commission.’
Ill. SB 9 Application to Coastal Act Policies Genera ijy Local governments should consider how to amend their LCP5 to comply with SB 9 to the greatest extent_possible, while continuing to be consistent with the Coastal Act. Approval of the types
residential
~
of lot
density
split and
in
re~idential
urban areas,
~
both in terms of the overall number of residential units an~ ma be able to be accommodated
environment
with limited coastal
itself.iiisomc
resource
areas,
im acts.
~
However, in other~
areas, there may significant adverse impacts to coastal resources such as public access, se sitivehabitats, and~r~e~ieat1oiineareas. (See Pub. Res. Code § 30250.) For exam~të val of new residential development projects and lot splits pursuant to SB 9 would not be consistent with the Coastal Act if the projects are adjacent to environmentally sensitive areas (ESHA) and are not sited and designed to prevent impacts which would significantly degrade those areas, or are incompatible with the continuance of those habitat and recreation areas. (Pub. Res. Code § 30240.) Residential areas in the coastal zone are often intertwined with significant coastal resource areas, such as along the immediate shoreline, between the first public road and the sea, near LCP-designated scenic are~~~ ~n~ai~~sitive habitat areas. LCPs generally include a myriad of provisions protecting these coastal resources; LCP provisions designed to implement SB 9 should not conflict with or inappropriately diminish any such LCP protections that already apply. At the same time, SB 9’s _an_en~urin.g~that applicable standards are objective and processed ministerially means that local overnments should consider ways to evaluate the potential for coastal resource. ~ impacts at the LCP plan~~ ~tage,such as by using check ists or er suc ministerial tools that can be employed at the CDP application stage as much as possible. Local governments are encouraged to coordinate with Commission staff as they develop LCP provisions to implement SB9. V
‘SB 9 also amends Government Code § 66452.6 to allow local governments to provide by ordinance an additional 24-month time period before an approved or conditionally approved tentative subdivision map expires.
4 249
IV. SB 9 Application in Sea Level Rise Vulnerable Areas As described in Chapter 3 of the Coastal Commission’s 2018 Update to the Sea Level Rise ~pijc Guidance (SLR Guidance), as sea levels rise, tidal and groundwater inundation, flooding, wave impacts, bluff and beach erosion, saltwater intrusion, and other impacts are projected to worsen and further threaten residential development and coastal resources in the coastal zone.

The applicability of SB 9 in areas vulnerable to the impacts associated with sea level rise is thus a critical concern.
a. Development of two or fewer residential units in sea level rise vulnerable areas In many cases, increasing density in areas subject to sea level rise impacts without including appropriate siting, design, and mitigation features will not be consistent with Coastal Act policies. Proposals to develop two or fewer residential units pursuant to Government Code Section 65852.21 may be permitted in sea level rise-vulnerable -~areas if they can be developed ~ in such a way as to be found consistent with the Coastal Act and LCP provisions, and can be designed and sited to be safe from hazards for the expected life of the structures. Proposed projects to construct two or fewer residential units pursuant to Government Code Section 65852.21 typically qualify as “development” under the Coastal Act because such projects usually involve “the placement or erection of any solid material or structure,” and/or a “change in the density or intensity of use of land,. . .“ (Pub. Res. Code § 30106.)2 As new development, the
assure
new
stability
units must minimize
and structural
risks
integrity,
to life
and
and
neither
property
create
in~
nor contribute significantly to
erosion, geologic instability, or destruction of the site or surrounding area; and not in an wa r!~!,~j2,c constr~ctionof protective dices that would substantialeta ano~rs along bluffs and cliffs. (Pub. Res. Code §~ 30253, 30270; see also corresponding LCP provisions.) New residential development must be consistent with the Chapter 3 policies of the Coastal Act and any relevant LCP policies, including that they must be sited and designed to prevent significant degradation of adjacent sensitive habitats and recreation areas and to allow the continuance of those areas into the future (Pub. Res. Code § 30240(b)).

In some areas vulnerable to sea level rise, the risk of hazards during the anticipated life of the structure may be too great to permit development of two residential units on one lot if the new unit(s) cannot be sited and designed safely and consistent with relevant Coastal Act and LCP provisions. In other vulnerable areas, development may be permitted where adaptation strategies and special conditions can minimize hazard risks and avoid impacts on coastal 2 As discussed in the Updates Regarding the Implementation of New ADU Laws Memorandum (Jan. 2022), conversion of existing habitable space within a single-family residence into another residential unit may not qualify as development if there are no major structural changes (e.g., changes to roofs, exterior walls, foundations, etc.) and no change to the size or intensity of use of the existing structure. (See Pub. Res. Code § 30106.)
5 250
resources. Local governments and applicants should refer to the Commission’s SLR Guidance when determining whether construction of residential units pursuant to Government Code Section 65852.21 in vulnerable areas is consistent with the Coastal Act and LCP policies.

Chapter 7 of the SLR Guidance describes some of the adaptation strategies to consider when planning for development in sea level rise vulnerable areas. Some adaptation strategies may require land use plans or proposed projects to anticipate long-term impacts now. Other strategies may build adaptive capacity into the plan or project itself, such as special conditions that require elevation or removal of structures when certain triggers are met, so that future changes in hazard risks can be effectively addressed while ensuring long-term resource protection.
b. Lot splits in sea level rise vulnerable areas
As discussed above, Government Code Section 66411.7 requires ministerial consideration of urban lot splits in single-family residential zones in designated areas outside the coastal zone when certain criteria are met. “[S]ubdivision . . . and any other division of land, including lot splits,” qualify as “development” under the Coastal Act, thereby triggerJn~g the need fo~~P o(~other appropriate authorization. (Pub. Res. Code § 30106.) Lot splits also qualify as development because they constitute a “change in the density or intensity of use of land.” (Id.) As new development, proposals to subdivide land must:
(a) Minimize risks to life and property in areas of high geologic, flood, and fire hazard. (b) Assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs. (Pub. Res. Code § 30253.) New development must also be sited and designed to prevent significant degradation of adjacent sensitive habitats and recreation areas and to allow the continuance of those areas in the future. (Pub. Res. Code § 30240(b).) In addition, new development must be consistent with all Chapter 3 policies of the Coastal Act, including Sections 30210 through 30224 protecting public access and recreational opportunities; Sections 30230 and 30231 protecting marine habitats and water quality; Section 30250 requiring development to have adequate public services; and Section 30251 protecting visual resources.

Subdivisions in areas with certified LCPs must also be consistent with corresponding, relevant LCP provisions. The Commission must also consider the effects of sea level rise in its coastal resources planning and management policies and activities, including those relating to new residential development. (Pub. Res. Code § 30270.)
The Commission’s SLR Guidance states that to comply with Section 30253 of the Coastal Act or the equivalent LCP section, projects will need to be planned, located, designed, and engineered 6 251
for the changing water levels and associated impacts that might occur over the life of the development. In addition, Chapter 7 of the SLR Guidance recommends concentrating development away from hazardous areas and limiting subdivisions in areas vulnerable to sea level rise. To be consistent with the Coastal Act, including how it is interpreted through the SLR Guidance, proposals to subdivide land in areas vulnerable to sea level rise should be considered very carefully for several reasons.

First, subdividing land projected to be negatively impacted by sea level rise in the foreseeable future is not a sound way to minimize risks to life and property in areas with high flood and geologic hazards. (See Pub. Res. Code § 30253.) Instead, subdivision in these areas is likely to increase risks to life and property by allowing for increased density and intensity of use of sites that are projected to be exposed to hazards such as tidal and groundwater inundation, flooding, wave impacts, bluff and beach erosion, and saltwater intrusion. Under SB 9, a lot currently zoned for a single-family residence could support many additional residential units. For example, a lot could be subdivided pursuant to Government Code Section 66411.7, and then two residential structures could be built on each of the newly divided lots pursuant to Government Code Section 65852.21. This scenario would result in four residences on a lot that, prior to SB 9, could only support one residence. When considering the circumstances in which residentially zoned lot splits (pursuant to SB 9 or otherwise) should be allowed in the coastal zone, local governments should consider whether each of the new lots would have a buildable area that is safe from coastal hazards for the foreseeable future without relying on shoreline armoring and could be developed in conformance with relevant coastal resource protection policies of the LCP and Coastal Act.

Second, it is important to analyze the safety of proposed lot splits over the longest feasible timeframe. Hazard analyses typically evaluate potential hazards for the expected life of the development. Unlike the development of residential structures that may only need to be safe for approximately 75-100 years, land divisions tend to be permanent and have little to no adaptive capacity. Although the SLR Guidance does not suggest a specific timeframe for the hazard analysis of proposed lot splits, it does note that projects that are expected to last indefinitely should consider time frames of 100 years or more, and this is also consistent with past Commission action. For example, Commission staff recently recommended denial ofa proposal to subdivide property in Orange County that was particularly vulnerable to sea level ~to~feandpropert~d
EUT~ötassure stability and structural integrity of the project, as Section 30253 of the Coastal Act requires. (Staff Report, Application Nos. 5-18-0907 & 5-18-0908, August 29, 2019.) The staff report found that the proposed subdivision could last in perpetuity, potentially long beyond the anticipated life of the proposed residential structure, and that both new lots would likely be subject to sea level rise impacts after the anticipated life of the residential structure. (Id.) After some deliberation with the Commission at the public hearing, the applicant withdrew its application and submitted a new proposal to build two single-family residences on the lot 4~O
LV ifr~’
5l~i~y
7 252
without subdivision. The Commission ~pp~p~gd the new application with the condition that th~ roperty cannot be subdivided now or in the futur among other conditions addressing the property’s sea level rise vulnera I . r Repp~~, Application No. 5-20-0646, May 21, 2021.) In the zoning context, the Commission denied a request by the County of Santa Barbara to amend its Land Use Plan (LUP) to rezone a single oceanfront property from recreation/ope space to single-family residential because the property was projected to be impacted by hazards in the foreseeable future, among other reasons. The Commission found that the hazards analysis for a proposed land use designation change should consider hazards for the foreseeable future because “[ujnlike residential structural development, where the Commission generally analyzes whether the structure will be stable and safe for its expected life of 75 to 100 years, the land use designation change of a parcel would be more or less permanent.” (Staff Repoji. Application No. LCP-4-STB-18-0039-1- Part D, July 10, 2019, p. 16.) Land divisions, and
like land
actions
use
demonstrate
designation changes,
that, in most
may
circUmstances,
last in perpet~y~Thus,
a hazard analysis
the Commission’s
for a lot split
~
proposal
should consider the longest time frame feasible.

Third, subdivision may limit the adaptation strategies available to individuals and communities as sea levels rise. Unlike structural development, which can be designed to incorporate adaptive elements like waterproofing, elevation, or relocation, subdivisions have little to no adaptive capacity; thus, it is not always feasible to mitigate the impacts created by subdivisions.

Subdividing a parcel can also limit the opportunities to adapt to sea level rise on that land by decreasing the land available on a lot for existing development to be moved landward, or for new development to be sited in a more landward or higher elevation location. Land divisions also increase the number of property interests in a site. This can add cost and logistical complexity to community-scale adaptation strategies, making it harder to form and manage geological hazard abatement districts, negotiate buyouts, and implement conservation easements, and making it more difficult to minimize hazards and protect coastal resources in the future.

Lastly, allowing subdivisions in vulnerable areas may negatively impact coastal resources and public access. Coastal resources such as beaches and wetlands will migrate and naturally adapt dJ~~~e coastal erosion and sea level rise conditions. Increased residential density and intensity of use along the shoreline and in vulnerable areas may impact coastal resources through, for example, “coastal squeeze” where shoreline development prevents beaches and bluffs from migrating inland, which causes the narrowing and eventual loss of beaches, dunes, and other shoreline habitats as well as the loss of offshore recreational areas. Having fewer structures on relatively larger lots may allow more opportunities for those structures to adapt—for example, by being moved to other parts of the lot that are safer. Depending on the geography and other site-specific conditions, creating additional, smaller lots with more structures may reduce this adaptive capacity.
‘I/li.
8 253
In light of the potential hazards and coastal resource impacts associated with subdivision in areas vulnerable to sea level rise, many local governments have avoided such land divisions. example, Policy 7-2 of the City of Half Moon Bay’s Local Coastal LUP limits “subdivisions in areas vulnerable to environmental hazards, including as may be exacerbated by climate change, by prohibiting any new land divisions, including subdivisions, lot splits, and lot line adjustments that create new building sites unless specific criteria [are] met that ensure that when the subject lots are developed, the development will not be exposed to hazards, pose any risks to protection
Mateo County’s
of coastal
LCP Implementation
resources, or create or
Plan (IP)
contribute
requires applications
to geologic~
for proposed subdivisions to
include a development footprint analysis that comprehensively evaluates site development constraints and potential impacts, including sea level rise impacts, prior to approval of subdivision parcel maps. These LCP policies allow lot splits, such as those authorized by Government Code § 664fT lyw en consistent with the Coastal Act. c. Identifying areas vulnerable to sea level rise
The best available, up-to-date scientific information about coastal hazards and sea level rise should be used to determine whether proposals for lot splits and new residential units in areas vulnerable to sea level rise are consistent with the Coastal Act and LCP provisions. Local governments and applicants should refer to the SLR Guidance when conducting this analysis.

Step 1: Identify sea level rise projections. First, identify the best available, locally-relevant sea level rise projections. In line with statewide guidance, the Commission currently recognizes the Ocean Protection Council’s 2018 State Sea-Level Rise Guidance as the best available science on sea level rise projections for California.
o Tide gauges. Appendix G of the SLR Guidance includes sea level rise projections for every 10 years from 2030 to 2150 for 12 tide gauges along the California coast; the projections from the closest tide gauge to the project site should be used. o Planning horizon. Hazard analyses typically evaluate potential hazards for the expected life of the development. Some LCP5 include a specified design life for new types of development. If no specified time frame is provided, a time frame may be chosen based on the type of development. For proposed development of new residential units, it is generally appropriate to analyze sea level rise impacts for at least the expected life of the proposed structure(s), often 75-100 years for residential structures, as described in Chapter 6 of the SLR Guidance. Although situations may vary, local governments and applicants should typically use a longer planning horizon of at least 100 years for lot splits because, as described in subsection (b), land divisions are expected to be permanent, unlike many other kinds of development, and have a limited ability to adapt.
o Risk aversion scenario. Evaluate impacts from the “medium-high risk aversion” scenario, as described in Chapters Sand 6 of the SLR Guidance. The SLR Guidance recommends 9 254
that all communities evaluate the impacts from the “medium-high risk aversion” scenario (p. 76), and that residential structures and projects with greater consequences and/or a lower ability to adapt use this projection scenario (p. 102). In addition, impacts under other risk aversion scenarios may be helpful to analyze.

Step 2: Analyze the physical effects of sea level rise. Analyze the following hazards under the medium-high risk aversion scenario: erosion of beaches, bluffs, cliffs, and other landforms; tidal inundation of shoreline areas; flooding (wave run-up and storm impacts); and saltwater intrusion and groundwater impacts, consistent with the SLR Guidance and Coastal Act and LCP requirements.

Step 3: Assess impacts to future development and coastal resources. Determine whether the proposed residential units and/or potential building sites on new parcels are vulnerable to sea level rise impacts.

Step 4: Determine whether proposed development is appropriate. Lastly, determine whether the proposed development is consistent with the LCP and Coastal Act as proposed, or can be made consistent with design modifications, adaptive strategies, or other conditions.

Development of new residential units in areas projected to be impacted by sea level rise may be inconsistent with the Coastal Act or LCP5 if adaptive strategies cannot minimize the risk of hazards and protect coastal resources, as discussed in subsection (a). Lot splits may be inconsistent with the Coastal Act or LCP policies if they occur in areas projected to be impacted by the hazards associated with sea level rise over the next 100+ years under the medium-high risk aversion scenario, as discussed in subsection (b). As described in the SLR Guidance, local governments should consider whether to “[p]rohibit any new land divisions, including subdivisions [and] lot splits . . . that create new beachfront or blufftop lots unless the lots can meet specific criteria that ensure that when the lots are developed, the development will not be exposed to hazards or pose any risks to protection of coastal resources.” (SLR Guidance, p. 130.) A lot split may be appropriate if the project site is not projected to be impacted by sea level rise hazards for the longest time frame feasible, typically at least 100 years, and is otherwise consistent with the LCP and Coastal Act. ~ t,c~-P V. Local Government Application of SB 9 in the Coastal Zone a. Update applicable LCP provisions
Local governmentS in the coastal zone are required to comply with both the Coastal Act the extent they do not conflict with Coastal Act requirements,~ne Currently certified provisions of LCP5 are not superseded by Government Co~.~ecuons 65852.21 and 66411.7 and continue to apply to CDP applications until aPamendment is adopted. Where LCP provisions directly conflict with the new Goy~rf1i~ient Code provisions or require refinement to be consistent with the new laws, tho~~~P provisions should be updated consistent with SB 9 to the greatest extent~ while still complying with Coastal Act / ~ A ~
i’~J M~
~ ,~
~J~,q3L
p1K213~ ~‘~“
‘-(-I’-
V
~ n~.Ak~ ~
255
requirements. As discussed above, when updating LCP policies to account for SB 9, local governments should also consider how proposed lot splits and residential development might impact public access, sensitive habitats, recreation areas, and other coastal resources. Local governments should also consider new LCP provisions that limit or prohibit subdivisions in area~ vulnerable to sea level rise, and that appropriately account for coastal hazards and coastal resource impacts, including as exacerbated or associated with sea level rise, for new residential development.
~thougha public hearing is not required under SB 9, public notice requirements still apply. LCP amendment applications should specify how local and Coastal Act public notice requirements will be fulfilled, including the notice requirements for: (a) pending action to interested parties prior to a local decision, and (b) notice of final action to the Commission and those who have requested such notice after a local decision. LCP amendment applications should specify the procedures for issuing a Final Local Action Notice (FLAN) for local decisions on applications for development that are appealable to the Commission. Some LCP amendments may qualify for streamlined review as minor or de minimis amendments. (Pub. Res. Code § 30514(d); Cal. Code Regs., tit. 14, § 13554.)
b. Review SB 9 applications consistent with the Coastal Act/LCP and SB 9 Local governments should generally follow the below process when considering proposed SB 9 projects~~~deof areas that are potentially vulnerable to sea level rise.

Review Prior CDP History. First, determine whether a CDP or other form of Coastal Act authorization was previously issued for development of the site and whether that CDP and/or authorization limits, or requires a CDP or CDP amendment for, changes to the approved development or for future development or uses of the site. The applicant should contact the appropriate Commission district office if a Commission-issued CDP and/or authorization limits the applicant’s ability to apply to construct two or fewer residential units or split the lot.

Consider Possible Expedited Permitting Processes. Second, and only if an application proposes to undertake development in an area where it will be consistent with LCP and Coastal Act hazard and~ re~o1Ec~ prote~tiQfl policies, cqns w eti eFVpedited permitting processes, such as waivers or adm~pi~~ratiye permits are available. If a local government’s LCP includes a waiver~p~o~1 rovisio,n, and the proposed lot split and/or residential unit development proposal meets the criter~Lc ~I!er the local goverrn~eflt~av~i e~cj~ waiver in place ofaCDP. The Commission has generally allowed a CDP waiver only when the Executive Director determines that the proposed development is de minimis (i.e., it is development that consisteti~
has no potential
all
for
Chapt~r
any individual
3 p.ciljcies
or cumulative
of the,, Cp~s~al,
adverse
Act). Such
~
a finding can typically be made
when the proposed project has been sited, designed, and limited in such a way as to ensure any potential impacts to coastal resources are avoided (such as through habitat and/or hazards setbacks, provision of adequate off-street parking to ensure that public access to the coast is t~6
M / ~ )~
11 256
not impacted, etc.). (See Pub. Res. Code § 30624.7.) Projects that qualify for a CDP waiver t~ cally allow for a substa ntially red uced valuation oce and streamlined approv ltLrrr~V1’e appropriate for local governments to use waive~TöThpprove app ons in oth appealable and non-appealable areas to streamline permitting.3 Local governments interested ~xploring this option sho~Id~ con~uJt~e1ith C~mmissip~~aff. LCP amendment applications that / ny
~~1s received are properly considered.4
Require and Review a CDP Application. Lastly, if a proposal is not eligible for a waiver or similar expedited process authorized by the Coastal Act and the certified LCP, including because it is located in an area potentially subject to coastal hazards and/or future sea level rise hazards, it requires a CDP. (Pub. Res. Code § 30600.) The CDP must be consistent with the requirements of the certified LCP and any relevant policies of the Coastal Act. Local governments must provide all required public notice for any CDP applications for development covered by SB 9 and process the application pursuant to LCP requirements, but local governments are not required to hold public hearings. (Gov. Code §~ 65852.21(k); 66411.7(o).) Once the local government has made a CDP decision, it must send the required final local action notice of that decision to the appropriate Commission district office( If the COP decision on the proposed project is appealable, a local government action to approve a CDP for the proposed project may be appealed to the Commission. (Pub. Res. Code § 30603.)
~ Most, if not all, LCPs with CDP waiver provisions do not allow for waivers in areas where local CDP decisions are appealable to the Coastal Commission. There have been a variety of reasons for this in the past, including that the Commission’s regulations require that local governments hold a public hearing for all applications for appealable development (14 Cal. Code Regs § 13566), and also that development in such areas tends to raise more coastal resource concerns and that waivers may therefore not be appropriate~_HOWcV~tL1fl,,der 589 provisions, public hearings~for qualifyjng development. Because of this the above-described public hearing issue would not be a concern so it could be appropriate for LCPs to allow CDP waivers in both appealable and non-appealable areas at least related to this criterion. Local governments should consult with Commission staff should they consider proposing CDP waiver provisions in their LCP.
‘~ The development authorized by SB 9—specifically, residential lot splits and development of new residential units that change the intensity of use—are not types of development that the Commission has typically found to be exempt from CDP requirements as improvements to single-family residences. (See Pub. Res. Code § 30610; Cal. Code Regs., tit. 14, § 13250(a).) In addition, any development that is not designated as the principal permitted use under the approved zoning ordinance or zoning district map—such as lot splits—is appealable to the Commission. (Pub. Res. Code § 30603(a)(4).) 12 257
solution to the
housing shortage, it must be sited and designed to be safe from hazards, such as sea level rise, and to not have significant adverse effects on coastal resources. Local governments should review their LCPs to determine what changes are necessary to implement SB 9 in a manner that is consistent with the Coastal Act and appropriate for local geography, and prepare and submit LCP amendments to the Commission as soon as is feasible.

This document was developed using federalfinancial assistance provided by the Coastal Zone Management Act, as amended, under award NA19N0S4190073, administered by the Office for Coastal Management, National Oceanic and Atmospheric Administration, U.S. Department of Commerce. The statements, findings, conclusions, and recommendations are those of the author and do not necessarily reflect the views of the National Oceanic and Atmospheric Administration or the U.S. Department of Commerce.
13 258
STATE OF CALIFORNIA — CALIFORNIA NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR

CALIFORNIA COASTAL COMMISSION
455 MARKET STREET, SUITE 300
SAN FRANCISCO, CA 94105-2421
VOICE (415) 904-5200
FAX (415) 904-5400
To: Planning Directors of Coastal Cities and Counties
From: John Ainsworth, Executive Director, California Coastal Commission Date: January 21, 2022
RE: Updates Regarding the Implementation of New ADU Laws I. Introduction
California’s ongoing housing crisis continues to exacerbate housing inequity and affordability, especially in the coastal zone. To address this critical issue, the state Legislature has enacted a ~laws i laveral years that are designed to reduce barriers to providing housing and to encourage construction of additional housing units in appropriate locations. To this end, the 2019 legislative session resulted in a series of changes to state housing laws that facilitate the development of Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs), which can help provide additional housing units that can be more affordable than
~
other forms of market rate housing. Importantly,
recognize
the
that
~
local governments must still abide
by the requirements of the Coastal Act, and by extension, Local Coastal Programs (LCPs). Thus, / ~ provisions on coastal resource protection must be incorporated into the planning and development process, and into updated LCP J/ADU requirements, when considering J/ADU5 irl// ~qD the coastal zone. If ~~
The Coastal Commission strongly encourages local governments to update their LCPs with J/ADU provisions in a manner that harmonizes the State’s housing laws with the Coas1~al Act.

Doing so would protect the State’s coastal resources while also re nbajij.ersto f constructingJ/ADU5a n d helping to pro mote more affar Ljecoast~!housi ng. / The Coastal Commission has previously circulated three memos to assist local governments with understanding how to carry out their Coastal Act obligations while also implementing state requirements regarding the regulation of J/ADU5. These memos have raised some questions for local governments, including the manner in which they are to be understood together. In order to address this issue, and to reflect lessons learned regarding J/ADU regulation in the coastal / ~ zone in the past few years~thi~. updat men)Qsup~r~edes and replaces these prior memos.

This updated memo also elaborates on the changes to state housing laws that went Into effect on January 1, 2020 and provides further information to help local governments harmonize these laws with the Coastal Act. This memo will briefly discuss the authority that the Coastal Act grants the Commission and local governments over housing in the coastal zone, new legislation regarding J/ADU5, how local governments can streamline J/ADU applications under the Coastal Act, and some key issues that should be considered when LCP amendments for J/ADU 259
provisions are undertaken. This memo is intended to provide general guidance for local governments with fully certified LCPs. The Coastal Commission is responsible for Coastal Act review of J/ADU5 in most areas that are not subject to a fully certified LCP. Local governments that have questions about specific circumstances not addressed in this memo should contact the appropriate district office of the Commission.

II. Coastal Act Authority Regarding Housing in the Coastal Zone ~
The Coastal Act has a variety of provisions directly related to housing. Relevant here, the -/~
hereafter enacted.” (Pub. Res. Code § 30007.) T e oas a c a so requires the Coasta Commission to encourage housing opportunities for low- and moderate-income households (Pub. Res. Code § 30604(f)) but states that “[n]o local coastal program shall be required to include housing policies and programs. (Pub. Res. Code § 30500.1.) Finally, new residential development
~
must be “located within, contiguous with, or in close proxirnit to existing to accommodate it” or in ot er areas where development will not ave significant adverse effects on coastal resources. (Pub. Res. Code § 30250.) While the Commission does not currently have the explicit authority to provide or protect affordable housing in the coastal zone, the Commission has continued to preserve existing density
~
and affordable housing whenever possible, including by supporting and encouraging the creation of new J/ADUs in e’~1~ting7 ~rti~Tareasisoneöf many strategies that aims to increase the housing stock, including creating additional housing units of a type and size that can be more affordable than other forms of housing in the coastal zone, in a way that may be able to avoid significant adverse impacts on coastal resources.

Ill. Overview of New Legislation
As of January 1, 2020, AB 68, AB 587, AB 881, AB 670, AB 671, and SB 13 collectively updated existing Government Code Sections 65852.2 and 65852.22 concerning local government review and approval of J/ADU5, and as of January 1, 2021, AB 3182 further updated the same laws, with the goal of increasing statewide availability of smaller, and potentially more affordable, housing units. Importantly, some of the changes affect local governments in the coastal zone and are summarized below.
o Local governments continue to have the discretion to adopt J/ADU provisions that are consistent with state law, and they may include specific requirements for protecting coastal resources and addressing issues such as design guidelines and protection of historic structures.
• Outside of an LCP context, existing or new J/ADUprovisions that do not meet the requirements of the new legislation are null and voj~and will be substituted with the 2 260
provisions of Section 65852.2(a) until the local government comes into compliance with new provisions. (Gov. Code § 65852.2(a)(4).) However, existing J/ADU provisions contained in certified LCPs are not superseded by Government Code Section 65852.2 and continue to apply to Coastal Development Permit (CDP) applications for J/ADU5 until the LCP is modified. Coastal jurisdictions without any J/ADU provisions or with existing J/ADU provisions that were adopted prior to January 1, 2020 are encouraged to update their LCPs to comply with the State’s new laws. Such new or updated LCP provisions need to ensure that new J/ADUs will protect coastal resources in the manner required by the Coastal Act and LCP, including, for example, by ensuring that new J/ADUs are not constructed in locations where they would require the construction of shoreline
~
protective devices, in environmentally sensitive habitat areas and wetlands, or stability may be compromised by bluff~Ei~,
• 1~• flooding, or wave uprush over the structure s lifetime.

A major change to Section 65852.2 is that the California Department of Housing and Community Development (HCD) now has an oversight role to ensure that local J/ADU provisions are consistent with state law. If a local government adopts an ordinance that HCD deems to be non-compliant with state law, HCD can notify the Office of the Attorney General. (Gov. Code § 65852.2(h)(3).) To ensure a smooth process, local governments should submit their draft J/ADU provisions to HCD and Coastal Commission staff to review for housing law and Coastal Act consistency befQJ~.tb~var~ L? ~ adopted locally and should continue to foster a tt~r~e-way, dialo~ue regarding any potential issues identified. Additionally, Coastal Commission and HCD staff meet regularl to discuss and resolve any issues that arise in the development ofi isions in the coast e. The Commission continues to prioritize J/ADU LCP amendments, and some may qualify for streamlined review as minor or de minimis amendments. (Pub. Res. Code § 30514(d); 14 Cal. Code Regs. § 13554.) o
wheth?r
approval
In non-coastal
the
or disapproval
loc~l
zone
goyernm~nt
areas,
of
local
applications
has
governments
adopted
for permits
updated
are required
~
i/AD U
~
provision~(Gov. Code §
65852.2(a)(3).) In the coastal zone, CDPs are still necessary in most cases to comply with LCP requirements (see below); however a local public hearing is not required, and local governments are encouraged to stream mi ADU processes as much as feasi le.

Other recent legislative changes clarify that local J/ADU provisions may not require a minimum lot size; owner occupancy of an ADU (though if there is an ADU and a JADU, one of them must be owner-occupied);Jire cprin.kler~ if such sprinklers are not reqyiredjnthe primary dwellingj a maximum square footage of less than 850 square feet for an ADU (or 1,000 square feet if the ADU contains more than one bedroom); and in some cases, off-street parking. Section 6S852.2(a) lists additional mandates for local governments that choose to adopt a J/ADU 3 261
ordinance, all of which set the “maximum standards that local agencies shall use to evaluate a proposed [ADU] on a lot that includes a proposed or existing single-family dwelling.” (Gov. Code § 65852.2(a)(6).) As indicated above, in specific cases coastal resource considerations may negate some such requirements, but only when tied to a coastal resource impact that would not be allowed under the Coastal Act and/or the LCP. In recent LCP amendments, these types of considerations have most often arisen in terms of the off-street parking provisions (see below).

IV. General Guidance for Reviewing J/ADU Applications
The following section lays out the general permitting pathway in which local governments can process J/ADU applications in a manner that is consistent with Coastal Act requirements and LCP provisions.
1) Check prior CDP history for the site.

Determine whether a CDP or other form of Coastal Act/LCP authorization was previously issued for development of the site and whether that CDP and/or authorization limits, or requires a CDP or CDP amendment for, changes to the approved development or for future development or uses of the site. The applicant should contact the appropriate Coastal Commission district office if a Commission-issued CDP and/or authorization affects the applicant’s ability to apply for a J/ADU.
2) Determine whether the proposed i/ADU constitutes “development.” As defined by the Coastal Act, development refers to both “the placement or erection of any solid material or structure” on land as well as any “change[s] in the density or intensity of use of land[.]” (Pub. Res. Code § 30106.) Most i/AD Us constitute development if they include, for example, new construction of a detached ADU, new construction of an attached J/ADU, or conversion of an existing, uninhabitable, attached or detached space to a J/ADU (such as a garage, storage area, basement, or mechanical room). The construction of new structures constitutes the “placement or erection of solid material,” and the conversion of existing, uninhabitable space would generally constitute a “change in the density or intensity of use.” Therefore, these activities would generally constitute development in the coastal zone that requires a CDP or other authorization. (Pub. Res. Code § 30600.) Unlike new construction, the conversion of an existing, legally established habitable space to a J/ADU within an existing residence, without removal or replacement of major structural components (e.g., roofs, exterior walls, foundations, etc.), and which does not change the intensity of use of the structure, may not constitute development within the definition in the Coastal Act. An example of a repurposed, habitable space that may not constitute new development (and thus does not require Coastal Act or LCP authorization) is the conversion of an existing bedroom within a primary structure.
4 262
3) If the proposed J/ADU constitutes development, determine whether a CDP waiver or If a
other
local government’s
~pe of expedited
LCP includes
proces~ng
a waiver
isapprop~~~~/
provision, and the proposed J/ADU meets the
~
criteria for a CDP waiver, the local government may issue a CDP waiver for the proposed J/ADU. The Commission has generally allowed a CDP waiver for proposed J/ADU5 if the 7Z’ ~9D Executive Director determines that the proposed development is de minimis (i.e., it is 1 Ieveloprnent that has no po~ntia~fp~ any individu~Lp~ j [resources an,d is consistent with all Chapter 3 policies of the Coastal Acj. Such a ) iing can f~/~icalIy be m~d~w~h~n t eprpp.Q~d J/ADU project has been sited, designed/ and limited in such a way as t~~nsure any potential_impacts to coastal resources are 2~~jsuch as through habitat and/or hazards setbacks, provision of adequate off-street parking to ensure that public access to the coast is not impacted, etc.). (See Pub. Res. Code § 30624.7.) Projects that qualify for a CDP waiver typically allow for a reduced evaluatiô~ framework and streamlined approval.

Most, if not all, LCPs with CDP waiver provisions do not allow for waivers in areas where local CDP decisions are appealable to the Coastal Commission. There have been a variety of reasons for this in the past, including that the Commission’s regulations require that local governments hold a public hearing for all applications for appealable development (14 Cal.

Code Regs § 13566), and also that development in such areas tends to raise more coastal resource concerns and that waivers may therefore not be appropriate. However, under the state’s J/ADU provisions, public hearings are not required for qualifying development. .• ._~ ~_•. .•. .•.•.•.•._.~ •.•.. .•.. .•.••_~ _••.• .•. •. .~•_ ••~•~.•. ... .••.~•_ •___.~_ Previously circulated Commission J/ADU memos (being superseded and replaced by this memo) indicated that construction or conversion of a i/AD U contained within or directly attached to an existing single-family residence (SFR) may qualify as development that was exemptfrom the requirement to obtain a CDP. Specifically, the Coastal Act and the Commission’s implementing regulations identify certain improvements to existing SFRs that are allowed to be exemptedfrom CDP requirements (Pub. Res. Code § 30610(a); 14 Cal. Code Regs § 13250. hou h the Commission has previously certified some LCP amendments that permitted certain exem ti ns or such ADU eve o ment, in a recent ac ion,fhe Commission reevaluated its position and found that “the creation of a selfcontained living unit, in the form of an ADU, is not an ‘improvement’ to an existing SFR.

Rather, it is the creation of a new residence. This is true regardless of whether the new ADU is attached to the existing SFR or is in a detached structure on the same property.”1 On this basis, and based on the finding that a variety of types of J/ADUs—including both attached and detached J/ADU5—could have coastal resource impacts that make exemptions inappropriate, it rejected the local government’s proposed exemptions for certain J/ADUs. Local governments considering updating LCP J/ADU provisions should consider the Commission’s recent stance regarding exemptions for ADU5 and may work with Commission staff to determine the best way to proceed on this issue. 5 263
Because of this, the above-described public hearing issue would not be a concern, so it could be appropriate for LCP5 to allow CDP waivers in both appealable and non-appealable areas at least related to this criterion. Local goy~rnr~ç~ntS should consult with Comrnis~fl~ staff should they cons~~p.~posing CDP waiver provisions in their LCP. Any LCP amendment applications that propose t~waive~a~~ble areas should ensure that there are appropriate procedures for notifying the public and the Commission regarding approvals of individual, appealable waivers (such as Final Local Action Notices) so that the proper appeal period can be set, and any appeals received are properly considered.

The Coastal Act also provides for other streamlined processing for certain types of development, including for minor development. (Pub. Res. Code § 30624.9.) In certain cases, categories of development can also be excluded from CDP requirements if certain criteria are met (see box). In any case, local governments without such CDP waiver and other processing and streamlining tools are encouraged to work with Commission staff to amend their LCP to include such measures.

Coastal Act section 30610(e) allows certain categories of development that are specified in Commission-approved Categorical Exclusion Cat Ex Orders to be excluded from CDP requirements, provided that t e category of deve ment has no potentialfor any significant adverse effect, either individually or cumul ly. on coastal resources. (See also 14 Cal. Code Regs §~ 13240 et seq.)
Cat Ex Orders apply to specific types of development within identified geographical locations. For example, the Commission may approve a Categorical Exclusion for J/ADU5 that would normally require a CDP (i.e., it is defined as development) because that specific
re~ultin individual
development
and/or
type
cumulative
in that sp~c1fic
coastal
geographic
resourc~Jm~pact$.
area can~
Cat Ex Orders are
prohibited from applying to: tide and submerged lands; beaches; lots immediately I adjacent to the inland extent of any beach; lots immediately adjacent of the mean high/ tide line of the sea where there is no beach; and public trust lands. J Cat ExOrders provide another poten~Jal means of streamlining J/~LLcQn~W~r~ion, and interested local governments should consult with Commission staff if they intend to propose such an Order. Cat Ex Orders are processed separately from LCP amendments, require a 2/3 vote of the Commission to be approved, and are typically subject to conditions. Once approved, the local government is responsible for reviewing development that might be subject to the Cat Ex Order and is typically required to report any exclusions applied pursuant to the Order to the Commission for review by the Executive Director and for an appeal period before they can become effective. It is important to note that while Cat Ex Orders can be a pow~ oLjfap.roved the Commission must be able ~ cue ~p~’ic category of development in a specific geographic area has no potential for any significant adverse coastal resources impacts in order to approve one. Thus, the local government pursuing a Cat Ex Order JT8E5ffoTfinVa~5cu~~ntat10n and evidence that can conclusively show that to be the case.
~OI~1~’
6 264
4) If a full CDP is required, review CDP application for consistency with certified LCP requirements.

If a proposed J/ADU constitutes development and cannot be processed as a waiver or similar expedited Coastal Act approval authorized in the certified LCP, it req~~a CDP. The CDP must be consistent with the requirements of the certified LCP and, where applicable, the public access and recreation policies of the Coastal Act. The local government must then provide the required public notice for any CDP applications for J/ADUs and process the application pursuant to LCP requirements, but should process it within the time limits contained in the ADU law, if feasible. However, local governments are not required to hold a public hearing on CDPs for ADU5. (Gov. Code § 65852.2(l).) Once the local government has issued a decision, it must send the required final local action notice to the appropriate district office of the Commission. If the CDP is appealable, a local government action to approve a CDP for the ADU may be appealed to the Coastal Commission. (Pub. Res. Code § 30603.)
V. Key Considerations
Per Government Code Section 65852.2, subd. (I), known as the Coastal Act Savings Clause, the State’s new ADU requirements shall not be ~construedtO supersede or in any wayalter or lessen the effect or application of the California Coastal Act of 1976.” There are a number of their LCP J/ADU
provisions are consistent with the requirements in the Coastal Act. This section addresses some of the key issues that the Commission has dealt with recently, including public coastal access arkin re uirements and protection of sensitive habitats and visual qualities. Local governments are encouraged to contact t eir oca oastal Commission istrict office for further assistance.

Protection of public recreational access in relation to parking requirements Government Code Section 65852.2 requirements regarding parking for J/ADU5 are as follows:
a. One parking space is required per unit or per bedroom, whichever is less. The parking space can be a tandem space in an existing driveway.
b. When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an ADU, no replacement parking space(s) are required.

However, Section 65852.2 further stipulates that the parking requirements listed above do not apply to ADUs constructed:
a Within 1/2 mile walking distance of public transportation stops/routes, b. Within a historic district;
c. Within a primary residence or accessory structure;
d. When on-street parking permits are required but not offered to the occupant of the ADU;
7 265
e. And where a car-share vehicle is located within one block of the ADU.

Thus, the Government Code limits the circumstances when a local government can require a ~i7~biTproject
government parking
to address
requirements
its parking
which
needs
often
onsite.
explicitly
This is
specify
a~
the number of off-street
parking spaces that must be provided onsite in any particular development, including residential development. The potential outcome is that private residential J/ADU parking needs can be shifted onto adjacent public streets. At the same time, the Coastal Act contains objectives and policies designed to pràtect and provide for maximum coastal access opportunities, which includes maintaining sufficient public coastal parking, including as implemented through LCP off-street parking provisions. The addition of J/ADUs may interfere with coastal public street parking availability if, for example, a garage is converted to a J/ADU and parking is not replaced onsite, in addition to the J/ADU parking demand itself. The Commission has often found that when private residential parking needs are not accommodated onsite, it can lead to increased use of on-street parking to address such needs, thereby reducing the availability of on-street parking to the general public. This may adversely affect public coastal access if it occurs in high visitor-serving areas and/or areas with significant public recreational access opportunities, and where on-street parking is heavily used. The result will be that the general public could be displaced from on-street parking by J/ADU parking needs, which may violate the Coastal Act’s requirements to protect, provide, and maximize public coastal access and recreational opportunities. In many impacted coastal neighborhoods, development patterns over the years have not adequately accounted for off-street parking needs, and adding J/ADU parking to the mix will only exacerbate such public parking difficulties.

Additionally, because general on-street parking is typically free or lower cost compared to other public parking facilities, J/ADU construction may also interfere with maintaining lower cost coastal access for all.

In order to avoid conflicts regarding parking requirements for J/ADUs as they may impact public access, local governments are encouraged to work with Commission staff to identify or map specific neighborhoods and locations where there is high visitor demand for public on-street parking needed for coastal access and to specify parking requirements for each such area that harmonizes Government Code requirements with the Coastal Act (and any applicable LCP policies). These maps can denote areas that supply important coastal public parking and access opportunities, and require that J/ADU development in these areas ensure that private residential parking needs are accommodated off-street. Importantly, such upfront LCP mapping and provisions allow the local government to address impacts to public access and parking supply without the need for a protracted, or even necessarily a discretionary, decision. The Commission has previously found that local governments may include specific off-street parking requirements for i/ADU5 constructed in these locations and may also require maintenance of all off-street parking for the primary residence (see examples below). However, harmonizing the distinct priorities between the Coastal Act’s protection of public coastal access and the J/ADU provisions on parking requirements will require a case-by-case consideration of the specific circumstances of each jurisdiction.
8 266
Protection of sensitive habitats and visual qualities; avoidance of hazards While most J/ADU projects take place within established residential neighborhoods where potential coastal resource impacts are fairly limited, there can be cases where such projects may affect significant coastal resources, such as sensitive habitats and shorelines and beaches.

As a general rule, LCPs include many provisions protecting such resources, and it is important that proposed J/ADU provisions are not structured to undo any such LCP protections that already apply. i/ADU5 may need to be reviewed for specific siting and design standards, particularly in visually sensitive areas (such as the immediate shoreline, between the first public road and the sea, near LCP-designated scenic areas, etc.). Similarly, where sensitive habitat may be present, i/ADU5 must be reviewed for impacts to such habitat, including with respect to fuel modification for defensible space. Additionally, local governments should include provisions for J/ADU5 constructed in areas vulnerable to sea level rise and other coastal hazards which ensure not only that these structures will meet all LCP requirements for new development to be safe from such hazards, but that also addresses the need for future sea level rise adaptations (including future accommodation or removal, risk disclosure conditions on the J/ADU, and any other risk-related issues dealt with in the LCP).

VI. Examples of Recently Updated ADU Provisions in Certified LCPs A number of local jurisdictions have recently updated their LCP5 to include new J/ADU provisions. Coastal Commission staff reports are linked below, which summarize specific issues that arose between Coastal Act requirements and the new i/ADU provisions as well as the necessary changes that were made in order to harmonize each jurisdiction’s LCP with the State’s housing laws. The suggested modifications shown in the staff reports were all approved by the Coastal Commission.

City of Santa Cruz (approved May 2021). This LCP amendment included clarifying language to address which provisions of the new state housing laws applied to ADUs in the coastal zone of the City of Santa Cruz as well as ensuring that the coastal resource protection provisions of the City’s current LCP are maintained. The amendment also addressed specific off-street parking requirements for ADUs sited near significant coastal visitor destinations. The City of Santa Cruz adopted the Commission’s modifications in August 2021.

City of Pacifica (approved June 2021). This LCP amendment revised the City’s Implementation Plan to incorporate J/ADU provisions that are in line with the updated state housing laws, including streamlined procedures for i/ADU review and permitting processing, providing J/ADU development standards, and crafting tailored modifications to address specific public access parking needs in key visitor destination areas. The City of Pacifica adopted the Commission’s modifications in August 2021.

County of San Mateo (approved July 2021). This LCP amendment incorporated more specific ADU regulations relating to size limits, maximum number of J/ADU5 permitted per lot, streamlined review and process of J/ADU permits, and parking availability in areas that are 9 267
significant coastal visitor destinations. The County of San Mateo adopted the Commission’s modifications in September 2021.

Cityof Encinitas (appro~ed August 2021). The Coastal Commission approved revisions to the City of Encinitas’ Implementation Plan that updated existing definitions for ADUs and JADUs and clarified development standards for accessory units, including standards for size, height, and setbacks.

City of Santa Barbara (approved December 2021). The Coastal Commission approved Commission staff’s revision of the City of Santa Barbara’s LCP amendment submittal addressing updated ADU provisions to be consistent with state housing laws. The amendment revised J/ADU terms and definitions, building standards, parking requirements, and permitting review and processing procedures. The staff report included modifications that address the CDP exemption issue (discussed above).
10 268

Agenda Item # 4.B.

Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Patricia Salazar, Development and Operations Manager Reviewed by: Richard Mollica, Planning Director

Approved by: Steve McClary, City Manager
Date prepared: November 15, 2023 Meeting date: December 11, 2023 Subject: Code Amendment to Extend Deadlines for Nonconforming In-kind Disaster Rebuild Projects
RECOMMENDED ACTION: 1) Adopt Ordinance No. 513 (Attachment 1) adopting Zoning Text Amendment (ZTA) No. 23-003 to amend Malibu Municipal Code (MMC) Section

17.60.020(C) to add three years to the deadline to initiate the planning application process and obtain building permits to rebuild a nonconforming structure that was damaged or destroyed in the Woolsey Fire and finding the action exempt for from the California Environmental Quality Act (CEQA); and, 2) Direct staff to schedule a public hearing, second reading of the ordinance, and adoption Ordinance No. 513 on the January 8, 2024 Regular City Council meeting.

FISCAL IMPACT: There is no fiscal impact associated with the recommended action.

STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.

DISCUSSION: On September 11, 2023, the City Council adopted Resolution No. 23-41 initiating the subject ZTA to MMC Title 17 (Zoning Ordinance) and directing the Planning Commission to hold a public hearing and to make a recommendation. On October 16, 2023, the Planning Commission considered the ZTA and recommended approval. The item before the Council is an ordinance to extend the rebuild deadlines contained in MMC Chapter 17.60.

City Council Meeting
12-11-23
Item

4.B.

Agenda Item # 4.B.

Background
Following the Woolsey Fire, the City Council amended MMC Chapter 17.601 (Nonconforming Structures) to facilitate a streamlined permitting process for fire rebuilds.

The amendment updated the Planning Verification process to allow a period of two years (November 8, 2020) for fire victims to apply, and four years to obtain a building permit, to replace nonconforming structures in-kind in the same location on the site and at the same height, without having to comply with the City’s current ordinances.

On August 24, 2020, the Council discussed delays that Woolsey Fire victims were experiencing in rebuilding their homes or initiating the rebuild process. These difficulties included financial hardship due to unresolved insurance claims or legal settlements, health issues, and impacts of the COVID-19 pandemic including supply chain issues.

Subsequently, on December 14, 2020, the City Council adopted Ordinance No. 476 which added one year to the rebuild deadlines.

On August 14, 2023, City staff provided an update on the City’s Woosley Fire Fee Waiver Program and rebuild efforts. At the time, approximately 100 of the 465 homes destroyed had not initiated the rebuild process. Subsequently, at its September 11, 2023 meeting, the Council considered an item to extend the rebuild deadlines for nonconforming structures damaged or destroyed in the Woolsey Fire. The Council directed staff to proceed with an ordinance to extend the rebuild deadlines by three years to coincide with Assembly Bill 1500, which amends the Revenue and Taxation Code (RTC) Section 70.5 to allow property owners an additional three years to reconstruct improvements on the property substantially damaged or destroyed by the 2018 Woolsey Fire and the 2018 Camp Fire.

Status of Fire Rebuilds
As of the time this report was prepared, of the 465 destroyed homes, approximately 92 properties are in various stages of the development process and 130 are now under construction. Below is a breakdown of the development status of homes destroyed in the Woolsey Fire.
• 369 projects have been submitted:
o 12 projects in Planning review
o 33 projects pending submittal for Building Safety review o 47 projects in Building Safety review
o 130 single-family homes under construction
o 147 single-family homes completed
• 96 projects have not yet been submitted
1 Ordinance No. 445

Agenda Item # 4.B.

Note: It is important to note that the rebuild deadlines are applicable to all destroyed or damaged properties, of which there are over 640 properties. Though the statistics above reflect destroyed homes only, all properties may submit a Planning Verification to maintain nonconforming structures and may be affected by the rebuild deadlines.

Analysis
As stated above, the current ordinance requires property owners, that seek to rebuild nonconforming structures without having to bring the structure into compliance with existing ordinances, to submit a Planning Verification application by November 8, 2021 and to obtain building permits by November 8, 2023.

Alternatively, the code allows property owners to request an extension of the three-year Planning Verification submittal deadline and the five-year building permit deadline.

Extensions may be granted by the Planning Commission where it finds, based on substantial evidence, that due to unusual circumstances, strict compliance of the deadlines creates an undue hardship. Multiple extension requests may be applied for, however, the extensions combined may not total more than six years.

The proposed amendment extends each deadline by three years. Staff does not anticipate the amendment to have a consequential effect with the exception to further assist Woolsey Fire victims that are facing challenges in their rebuild efforts.

At this time, pursuant to MMC Section 17.60.020(C), the City is not accepting any applications for Planning Verifications for nonconforming replacement structures, except those previously extended by the Planning Commission2. However, if the three-year deadline to submit a Planning Verification is retroactively modified by three years to accommodate those who have not yet submitted applications, the new deadline would be November 8, 2024.

Pursuant to MMC Section 17.60.020(C), the deadline to obtain building permits to maintain nonconforming structures is November 8, 2023. If the five-year deadline to obtain building permits is modified by three years, the new deadline would be November 8, 2026. 2 In 2022, the Planning Commission granted sixteen time extensions, of which 12 property owners have not initiated the rebuild process.

Agenda Item # 4.B.

Below is the proposed amendment to MMC Section 17.60.020(C), with added text underlined and deleted text stricken:

C. Any structure described in subsection A of this section, may be remodeled, or may be reconstructed in the general location and to the same height as it existed prior to damage or destruction, subject to obtaining planning verification and provided that the application for the reconstruction is initiated with the city within six three years of the date of damage or destruction, and a building permit is diligently pursued and obtained within eight five years from the date of damage or destruction and has not expired. A request for an extension of time to the six threeyear or eight five-year periods may be granted by the Planning Commission where it finds, based on substantial evidence, that due to unusual circumstances, strict compliance with the six-three or eight-five year limit creates an undue hardship.

Extensions may not total more than nine six years. Any reconstruction shall extend the termination date described in Section 17.60.040 for the use operating within such a structure.

As a reference, Subsection A of MMC Section 17.60.40 states “Any structure which was lawfully erected and which does not conform to the current design and development standards or lot development criteria of this title may be continuously maintained and shall be treated in all respects as though in full compliance with this title.” Procedural Consideration
The November 8, 2023 deadline to obtain a building permit for Planning Verification applications to allow for the in-kind replacement of a legal nonconforming structure has passed. Property owners were encouraged to submit their time extension request prior to the November 8, 2023 deadline. Approximately 60 time extensions were filed by property owners by this deadline. These extension requests will be placed on hold until the outcome of the City Council’s action is known. After the final adoption of the ordinance, City staff will notify property owners who filed a time extension that the extensions are considered moot.

ENVIRONMENTAL REVIEW: The Planning Director has analyzed the project proposal described herein and has determined that the project is covered by the general rule that the California Environmental Quality Act (CEQA) applies only to projects that have the potential to cause a significant effect on the environment. Pursuant to CEQA Guidelines Section 15061(b)(3), where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The Planning Director has determined that there is no possibility the proposed amendment may have a significant effect on the environment as the restriction only applies to properties that have been damaged or destroyed by a disaster, and only preserves the right to build/rebuild that which they held before the disaster, and accordingly, the exemption set forth in Section 15061(b)(3) applies.

Agenda Item # 4.B.

PUBLIC NOTICE: On November 23 and December 14, 2023, a Notice of City Council Public Hearing will be published in a newspaper of general circulation within the City of Malibu. In addition, posts will be made on the City’s social media platforms and emails will be sent to Woolsey Fire property owners and representatives on file.

Should the amendment be approved, City staff will conduct robust public outreach to notify property owners of the code amendment changes.

SUMMARY: Staff recommends the City Council adopt Ordinance No. 513, adopting Zoning Text Amendment No. 23-003, to extend each deadline as contained in MMC Section 17.60.020(C) by three years.

ATTACHMENTS:

1. Ordinance No. 513

2. Notice of Public Hearing
ATTACHMENT 1
ORDINANCE NO. 513

AN ORDINANCE OF THE CITY OF MALIBU APPROVING ZONING TEXT AMENDMENT NO. 23-003 TO AMEND MALIBU MUNICIPAL CODE
SECTION 17.60.020(C) TO ADD THREE YEARS TO THE DEADLINE TO

INITIATE THE PLANNING APPLICATION PROCESS AND OBTAIN

BUILDING PERMITS TO REBUILD A NONCONFORMING STRUCTURE

THAT WAS DAMAGED OR DESTROYED IN THE WOOLSEY FIRE AND

FINDING THE ACTION EXEMPT FROM THE CALIFORNIA

ENVIRONMENTAL QUALITY ACT
The City Council of the City of Malibu does ordain as follows:

SECTION 1. Recitals
A. On February 25, 2019, the City Council adopted Ordinance No. 445, amendments to the Malibu Municipal Code (MMC) Title 17 (Zoning Ordinance) and the Local Coastal Program, to facilitate the rebuilding of structures damaged or destroyed by the 2018 Woolsey Fire.

B. On December 14, 2020, the City Council adopted Ordinance No. 476 amending MMC Chapter 17.60 (Nonconforming Uses and Structures) to add one year to the deadlines in Subsection (C) to initiate the application process and obtain building permits to rebuild a legal nonconforming structure that was damaged or destroyed by the Woolsey Fire.

C. The City of Malibu continues to issue Planning Verification approvals to property owners whose homes were damaged or destroyed in the 2018 Woolsey Fire, pursuant MMC Section 17.060.020(C).

D. The Malibu community has been rebuilding steadily in the aftermath of the Woolsey Fire and during the COVID-19 pandemic. structure.

E. On September 11, 2023, the City Council adopted Resolution No. 23-41 initiating a code amendment to MMC Section 17.60.020(C) to add three years to the deadlines to initiate the application process and obtain building permits to rebuild a legal nonconforming structure that was damaged or destroyed by 2018 Woolsey Fire.

On September 21, 2023, a Notice of Planning Commission Public Hearing was published in a newspaper of general circulation within the City of Malibu indicating that the Planning Commission would hold a public hearing on October 16, 2023. In addition, posts were made on the City’s social media platforms and emails were sent to Woolsey Fire property owners and representatives on file.

F. On October 16, 2023, the Planning Commission held a duly noticed public hearing on the amendment, reviewed and considered the agenda report, reviewed and considered written reports, public testimony, and other information in the record., and adopted Resolution No. 23-45 recommending approval of the amendment.

Ordinance No. 513

____________________

D. On November 23, 2023, a Notice of City Council Public Hearing was published in a newspaper of general circulation within the City of Malibu indicating that the Council will hold public hearings on December 11, 2023 and January 8, 2024, on the subject code amendment. In addition, posts were made on the City’s social media platforms and emails were sent to Woolsey Fire property owners and representatives on file.

E. On December 11, 2023, the City Council held a duly noticed public hearing on the subject amendment, considered the recommendation by the Planning Commission, reviewed and considered written reports, public testimony, and related information. In addition, the Council introduced on first reading and adopted the Ordinance.

F. On December 14, 2023, a Notice of City Council Public Hearing was published in a newspaper of general circulation within the City of Malibu indicating that the Council will hold a second public hearing on January 8, 2024, on the subject code amendment. In addition, posts were made on the City’s social media platforms and emails were sent to Woolsey Fire property owners and representatives on file.

F. On January 8, 2024, the City Council held a duly noticed public hearing on the subject amendment, considered the recommendation by the Planning Commission, reviewed and considered written reports, public testimony, and related information and conducted a second reading of the Ordinance.

SECTION 2. Environmental Review
The City Council has analyzed the proposed code amendment described herein and has determined that the proposed code amendment is covered by the general rule that the California Environmental Quality Act (CEQA) applies only to projects which have the potential for causing a significant effect on the environment. Pursuant to CEQA Guidelines Section 15061(b)(3), where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The City Council has determined that there is no possibility the proposed amendment may have a significant effect on the environment as the restriction only applies to properties that have been damaged or destroyed by a disaster, only preserves the right to build/rebuild that they held before the disaster, and accordingly, the exemption set forth in Section 15061(b)(3) applies.

SECTION 3. Amendment

A. Section 17.60.020(C) of the Malibu Municipal Code is hereby amended to read as follows:

Any structure described in subsection A of this section, may be remodeled, or may be reconstructed in the general location and to the same height as it existed prior to damage or destruction, subject to obtaining Planning Verification and provided that the application for the reconstruction is initiated with the city within six years of the date of damage or destruction, and a building permit is diligently pursued and obtained within eight years from the date of damage or destruction and has not expired. A request for an extension of time to Ordinance No. 513

____________________

the six-year or eight-year periods may be granted by the Planning Commission where it finds, based on substantial evidence, that due to unusual circumstances, strict compliance with the six- or eight-year limit creates an undue hardship. Extensions may not total more than nine years. Any reconstruction shall extend the termination date described in Section 17.60.040 for the use operating within such a structure.

SECTION 4. Findings
Pursuant to the Malibu Municipal Code Section 17.74.040, the City Council hereby makes the following findings:

A. The City Council hereby finds that the proposed amendment is consistent with the General Plan and is designed to protect and promote public health, safety, welfare, quality of life and the ability to preserve visually impressive views. The zoning text amendment further strives to protect victims of disasters and their ability to rebuild free from having artificially restrictive deadlines that may limit the ability to rebuild non-conforming structures damaged by the Woolsey Fire.

B. The proposed amendment does not authorize a use other than that already designated in the Malibu Municipal Code. The proposed amendment is consistent with the Coastal Act and the Malibu Municipal Code because it protects, maintains and enhances the overall quality of the coastal zone environment. The proposed amendment will not alter the utilization or conservation of coastal zone resources, impede public access to and along the coastal zone, or interfere with the priorities established for coastal-dependent or coastal-related development.

C. The City Council held a public hearing, reviewed the subject zoning text amendment application for compliance with the City of Malibu General Plan, Malibu Municipal Code and the Malibu Local Coastal Program, and finds that the proposed amendment is consistent.

SECTION 5. Approval
The City Council hereby adopts Zoning Text Amendment No. 23-003 amending the Malibu Municipal Code.

SECTION 6. The City Clerk shall certify the adoption of this ordinance.

PASSED, APPROVED AND ADOPTED this ____ day of ____ 2024. ____________________________
STEVE UHRING, Mayor
ATTEST:
__________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
Ordinance No. 513

____________________
Date: _________________________
APPROVED AS TO FORM:
__________________________________
TREVOR RUSIN, City Attorney

NOTICE OF PUBLIC HEARING

CITY OF MALIBU

CITY COUNCIL
The Malibu City Council will hold public hearings on MONDAY, December 11, 2023 and January 8, 2024, at 6:30 p.m. on the project identified below in Council Chambers at Malibu City Hall, 23825 Stuart Ranch Road, and via teleconference.

Public comment can be submitted ahead of the public hearing to [email protected] for inclusion in the public record. To view and participate during the public hearing, please review the meeting agenda posted at MalibuCity.org/AgendaCenter and follow the directions for public participation.

Woolsey Fire Non-Conforming Structures Deadlines
Zoning Text Amendment No. 23-003 – Consider an amendment and the Planning Commission’s recommendation to extend the deadlines contained in Malibu Municipal Code (MMC) Section 17.60.020(C) to rebuild non-conforming structures destroyed or damaged in the Woolsey Fire, without having to bring the structure into compliance with existing ordinances
The November 8, 2023 deadline to obtain building permits for a previously approved Planning Verification (PV) application, to rebuild non-conforming structures damaged or destroyed in the Woolsey Fire without having to bring the structure into compliance with existing ordinances, has passed. However, in an effort to continue to assist Woolsey Fire victims, on September 11, 2023, the City Council initiated an amendment to extend the deadlines contained in MMC Section 17.60.020(C), to initiate the application process and to obtain building permits, by three years. Pursuant to the Council, the purpose of the 3-year extension of the deadlines is to coincide with Assembly Bill 1500, which amends the Revenue and Taxation Code (RTC) Section 70.5 to allow property owners an additional three years to reconstruct improvements on a property substantially damaged or destroyed by the 2018 Woolsey Fire.

Applicant: City of Malibu
Location: Citywide
Case Planner: Richard Mollica, Planning Director
(310) 456-2489, extension 346
[email protected]
Pursuant to the authority and criteria contained in the California Environmental Quality Act (CEQA), the Planning Director has analyzed this proposed project and found that it is listed among the classes of projects that have been determined not to have a significant adverse effect on the environment. Therefore, the project is categorically exempt from the provisions of CEQA. The Planning Director has further determined that none of the six exceptions to the use of a categorical exemption apply to this project (CEQA Guidelines Section 15300.2).

A written staff report will be available at or before the hearing for the project. All persons wishing to address the Council regarding this matter will be afforded an opportunity in accordance with the Council’s procedures.

Copies of all related documents can be reviewed by any interested person at City Hall during regular business hours. Oral and written comments may be presented to the City Council on, or before, the date of the meeting.

IF YOU CHALLENGE THE CITY’S ACTION IN COURT, YOU MAY BE LIMITED TO RAISING

ONLY THOSE ISSUES YOU OR SOMEONE ELSE RAISED AT THE PUBLIC HEARING

DESCRIBED IN THIS NOTICE, OR IN WRITTEN CORRESPONDENCE DELIVERED TO THE CITY, AT OR PRIOR TO THE PUBLIC HEARING.

Richard Mollica, Planning Director
Publish Date: November 23, 2023 and December 14, 2023

Agenda Item # 4.C.

Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Richard Mollica, Planning Director
Reviewed by: Steve McClary, City Manager
Date prepared: November 15, 2023 Meeting date: December 11, 2023 Subject: An Amendment to Title 17 (Zoning) of the Malibu Municipal Code to Update Regulations Related to Temporary Use Permits
RECOMMENDED ACTION: Continue the item to the January 8, 2024 Regular City Council Meeting.

City Council Meeting
12-11-23
Item

4.C.

Agenda Item # 6.A.

Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Alexis Brown, Deputy City Manager
Reviewed by: Joseph D. Toney, Assistant City Manager
Approved by: Steve McClary, City Manager
Date prepared: November 16, 2023 Meeting date: December 11, 2023 Subject: Strategic Plan Project Update
RECOMMENDED ACTION: Receive and file a progress report on the Strategic Plan Projects.

FISCAL IMPACT: There is no fiscal impact associated with the recommended action.

STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.

DISCUSSION: At the September 27, 2023, City Council meeting, the City Council approved the City’s first Strategic Plan list to help focus and prioritize staff efforts on the most important projects that City staff need to work on. The list was the result of an extensive conversation between the Council and City staff leadership during a productive set of workshops conducted earlier in the year. That conversation identified the difficult challenge that exists with a finite staff and a large list of day-to-day work to complete in addition to a large demand to take on special projects to meet the demands of the community. All agreed that there are not enough human resources to take on all the many special project ideas that steadily arise, so a limited focused priority list was created to help direct staff to focus on 20 S.M.A.R.T. (Specific, measurable, achievable, results oriented, and time bound) goals. This focus is aimed at providing a realistic agreement between the Council and the staff as to how much work can be achieved during the project period.

This is a brand-new process for the City and will take some refinement over time to ensure the focus on an achievable list of priority projects can be maintained while still allowing for City Council Meeting
12-11-23
Item

6.A.

Agenda Item # 6.A.
inevitable emergency events that demand redirecting staff resources for periods of time.

A regular update of the top projects every 2 months provides the opportunity to show both progress, and adjustments when unforeseen challenges result in a delay to timelines.

The attached project list provides a two month update as to the status of the top priority projects. Each project leader provided their update of progress achieved to date, and their anticipated future project timeline for Council review.

ATTACHMENTS: Strategic Plan Project Tracking List
MALIBU PRIORITY PROJECT LIST 1

TITLE DEPT
Team Members (Lead in BOLD)
NARRATIVE Project Status Timeline (Next 6 Months)
Core Focus Day To Day Operations All All Top Focus of All Staff - Must be supported and completed before the rest of the priority list Top Workplace Culture - Recruitment and Retention
Malibu Culture - Providing values guidance for all Council, Commission, and staff for behavior and treatment. Clarify roles and scope of Commissions and confirm how new work items can be generated.

All
Steve, Joe, City Council Sub Committee
Providing values guidance for all Council, Commission, and staff for behavior and treatment. Clarify roles and scope of Commissions and confirm how work items can be generated. Develop code of behavior - values to ensure there is a standard for treating one another in a kind and professional manner. This group would also clarify the roles of Commissions and the process for new Commission ideas and projects to be reviewed and approved or not approved.

First Policy Ad Hoc Committee meeting was held November 20, 2023. The Committee discussed Code of Conduct and will begin drafting a set of codes for consideration, and/or updating the established policy of Resolution 98-83. November 13, 2023 - City Council adopted Resolution No. 23-51 authorizing for a One-Time winter closure of the City Offices for the period of December 22, 2023-December 1, 2024.

December 11, 2023 CC Meeting - Staff to bring forward proposed Agenda Reorder format and establish new start time.

City Values Statement/Code of Conduct - Subcommittee recommended to be formed Sept 27, Staff with two Council members to develop Commissions role/scope/training draft plan for Jan 22 CC Meeting February 26, 2024 CC Meeting - Staff to bring forward an ordinance to formalize winter closure and adopt Juneteenth as a recognized holiday for the City of Malibu.

Top Workplace Culture - Recruitment and Retention
Staff Compensation and Benefits- Class Comp Study - Including Staffing Benefits All
Joe Toney, MS Staff, DH's
Classification and compensation studies review internal equity (pay relationships between positions) and external competitiveness (pay relationships with labor market competitors). HR staff will conduct a comprehensive classification and compensation study. Also review list of recommended staff benefits and get priority list for Council review and Approval A project team of staff representing each department was formed. The Classification phase was conducted and now the consultant is building the comparison of Compensation to comparable agencies. It is anticipated the Study should be concluded near the end of the calendar year 2023. Recommended Staff benefits were presented to the City Council on September 27, with guidance received. Items will be brought back to Council for formal adoption as is feasible. As an example, a Family Friendly Winter Closure was adopted by Council on November 13, 2023.

September 27 CC meeting - Develop Benefits, gain CC approval of final list of recommended staff benefits -AccomplishedJanuary 22 CC meeting - Comp and Classification Study present recommendations.April 24, 2024 CC Meeting - Salary and Benefits incorporated into the FY 2024-25 Proposed Budget. April 24 is the Budget Workshop.

PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
School District Separation
MS Marianne and
Paul, Steve McClary, Alexis Brown, BBK Team,
Pursuit of creating a Malibu School District by separating from the Santa Monica School District Since the adoption of the new Workplan, the City of Malibu has participated in three mediations with SMMUSD on October 17, November 17, and November 29. The parties continue to work through the revenue sharing agreement, operations agreement and are now working on draft special legislation language.

Next Mediation Date(s): December 5, 2023 and January 30, 2024Update to City Council: February 12, 2023 Tentative Date of Unification- Fall of 2026

PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Master Plan for City Owned Vacant Lots
MS/PL Alexis Brown,
Joe Toney, Richard M
To Happen Simultaneously: RFP & Selection of Community Outreach Firm, Launch of Community Outreach/Review & Update Previous Development Assessment. Prepare for Geo Technical Studies based on Results of community outreach.

PLN: Planning staff is collecting all records related to City-owned parcels and previous determinations. October 5, 2023 City issued an RFP for Community Outreach and Engagement for City Owned Vacant Lots. Eight proposals were received by qualified firms. Evaluations of the proposals have been conducted and the top three firms will be interviewed the week of December 4, 2023. A recommendation will be brought forward to the City Council for award on January 8, 2023.

Award - January 8, 2023 CC Meeting Begin Outreach: February 2024

PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Housing Element 6th Cycle RHNA & 2021 Housing Element Update PL Richard M,
Adrian, Joyce ParkerBozylinski (Consultant)
Complete final steps to have Housing Element Approved by HCD/State The City completed two technical assistance meetings with HCD and staff is preparing a revised housing element to present to the Council in January prior submittal to HCD on February 8, 2024.

Need to respond to incomplete letter. Currently gathering additional information. Meeting on August 30th with HCD to go over completion timeline. TBD what additional work is needed.

MALIBU PRIORITY PROJECT LIST 2
Hazard Tree Removal Program 9/31/23 – Complete program10/31/23 – Submit grant reimbursement requestHome Ignition Zone Assessments3/31/24 – Complete 40 assessmentsFirewise Community Program 12/31/23 – Identify two neighborhoods that are interested3/31/24 – Assist two neighborhoods in becoming certified ALPR cameras 10/31/23 – Complete an agreement with Edison to place cameras on their poles12/31/23 – Install all solar powered cameras slated for Edison poles1/31/24 – Establish work plan to convert solar powered cameras to hardwire camerasEmergency Plan Updates 10/31/23 - Conduct community input meeting on the Draft Hazard Mitigation Plan (HMP)11/30/23 – Receive, review and provide feedback on first draft of updated Emergency Operations Plan (EOP)12/31/23 - Receive and provide feedback on draft HMP. Receive updated EOP for final review.1/31/24 - Receive updated HMP for final review. Take EOP to Disaster Council for approval 2/29/24 – Take EOP to City Council for approval. Submit to HMP to FEMA for approval3/31/24 - Agendize item to have City Council approve HMPEOC equipment 12/31/23 – Secure a consultant to assist in building out EOC management system (DLAN)3/31/24 – Complete build out of EOC management systemEOC training 10/31/23 – Provide an EOC exercise for all City staff11/30/23 – Host Fire Season meeting with partner agenciesEncampment Management 10/31/23 – Clear all hillside encampments within the City. Emergency Supply Bins 1/31/24 – Update supplies in the Trancas, Point Dume and Malibu High bins3/31/24 – Update supplies in the Webster, City Hall and Las Flores binCommunications 10/31/23 – Establish MOU and Agreement with KBUU for emergency communications12/31/23 – Secure vendor to install mast at Bluff’s Park for KBUU booster antenna. Test all satellite phones and City radios 3/31/24 – Complete installation of KBUU booster antennaSheriff Substation 12/31/23 – Staff the Sheriff’s Substation3/31/24 – Evaluate staffing at Substation and identify any deficiencies Hazard Tree Removal Program – Complete scheduled hazard tree removals and pursue additional funding.Home Ignition Zone Assessments – Complete scheduled Home Ignition Zone Assessments and promote program.Firewise Community Program – Encourage and assist Malibu neighborhoods to become Firewise Communities (mitigates fire risk and provides discount on insurance).ALPR cameras – Finish installing solar powered ALPR cameras on Edison poles and then begin process to have them hardwired.Emergency Plan Updates – Work with consultants to update the Emergency Operations and Hazard Mitigation Plans and bring to City Council for adoption. (both are required for disaster reimbursement)EOC equipment – Test all EOC equipment and update as needed.EOC training – Provide basic and advanced Emergency Operations Center (EOC) training for all staff, and host pre- fire season meeting with partner agencies.Encampment Management – Work with the Sheriff’s Department to ensure encampments are cleared from the hillsides.Emergency Supply Bins – Ensure that all community emergency supply bins are organized and stocked appropriately and Information Stations are ready to be deployed.Communications – Test all current communication capabilities, including disaster notifications systems, satellite phones and radios, work with KBUU to expand broadcast radio capabilities, and develop and train staff on communication procedures. Sheriff Substation - Increased staffing and telecommunications for Substation at Santa Monica College Hazard Tree Removal Program – Program completed, submitting final grant reimbursement request. Also, applied for additional funding to continue the program in 2024.Home Ignition Zone Assessments – Completed 31 assessmentsFirewise Community Program – Actively assisting one neighborhood, and working with three others that are considering itALPR cameras – Still waiting for Edison to provide contractEmergency Plan Updates – Conducted community meeting for Hazard Mitigation Plan updateEOC equipment – Explored options for vendor assistance with buildoutEOC training – Conducted basic EOC Training and scheduled EOC exerciseEncampment Management – Hillsides have been cleared of encampmentsEmergency Supply Bins – No update at this timeCommunications – Agreement with KBUU completed Sheriff Substation - Conducted meeting with Sheriff's and Supervisor Horvath's Office to address obstacles to opening Public Safety Projects - Key Public Safety Projects
Public Safety PS Susan Duenas,
PS team members
MALIBU PRIORITY PROJECT LIST 3

EFFICENT AND EFFECTIVE CITY SERVICES
Development Services Report - Implementation

MS/PL/ESD/
PW
Joe Toney, Richard M, Yolanda B, Rob D,
Received Consultant Report. Present to City Council, develop implementation plan, assign resources and timelines for implementation tasks.

City Manager will provide a memo summarizing the implementation plan and what is currently under way, next steps, and items that are long term. Memo should be provided end of Nov/begging of December.ESD, PL, and PW: Continue to coordinate with CM office.

Implementation Plan from consultant is currently under review. Intend to provide update to Council by end of October. Work is already underway that includes internal staff training session, interdepartmental workflow improvement discussions, and new workflow software acquisition (Bluebeam).Summary memo to Council by first week of December.

EFFICENT AND EFFECTIVE CITY SERVICES
Development Services Updated Software - 1st
stage Blue Beam, 2nd stage Land Management System

PL/PW/ESD/

MS (IT)
Joe Toney, Richard M, Yolanda B, Rob D,
Implementation of Blue Beam software to support streamlined digital Plan submission and processing. To be completed this fall. Later focus on implementing a new Land Management System (LMS). This LMS will allow efficient data entry of information required for permit issuance and plan review. Additionally, the public will be able to view project statuses. Once implemented, the program will significantly reduce staff time to issue permits, complete plan review, and research projects, thereby increasing the overall efficiency of the department.

Agreement signed under City Manager authority to initiate a review, custom workflows, training, and implementation schedule with Bluebeam Consultant. this portion should take up to 12 weeks.ESD, PL, and PW: Continue to coordinate with CM office. Departments have been interviewing vendors to explore digital document submittal software to replace the existing method. The providers were interviewed including the City's existing software engineer. The City's existing software engineer has provided demos to the Departments and will be presenting a demo to the CM's Office and Directors in the near future.

Bluebeam agreement to be signed. Consultant to work with staff to design Bluebeam workflows starting Oct 1. Timeline to complete workflow design and set up training for staff to be confirmed and update later in October.Estimating up to 12 weeks for next phase of Bluebeam development, February 2024.

PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Malibu High School CDP PL Richard M,
Adrian
Coastal Commission to Hear CDP in Sept 8th meeting for potential code amendments. Planning Commission to consider Phase 1 Coastal Development Permit September 5th. If Coastal approves code amendments on Sept 8th then will bring to City Council at October 9th meeting. 2nd reading to happen October 23 CC meeting Complete - Staff completed the necessary hearings on the timeline proposed and the CCC certified the LCPA at its November hearing and the City received the notice of final action.

Coastal Commission heard CDP in Sept 8th Coastal Comm meeting for potential code amendments. Planning Commission to consider Phase 1 Coastal Development Permit September 5th PC meeting. If Coastal approves code amendments on Sept 8th Coastal Comm meeting then will bring to City Council at October 9th CC meeting. 2nd reading to happen October 23 CC meeting

PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Permanent Skate Park Design - Approval
CS/PL/PW Kristin, Tyler,
Rob D.

Skatepark Preliminary Design and site amenities were recommended by the Parks and Recreation Commission for approval by the City Council. Staff will process the CDP application and EIR documents before construction of the project begins.

The Environmental Review Board analyzed the Final EIR Addendum No.3 in October 2023. In November 2023, the Planning Commission reviewed the final design, certified Addendum No. 3 of the Final EIR, and approved Coastal Development Permit No. 23-001 to construct the 12,500 square foot Skatepark and associated development. In December 2023, the A&F Committee will review the funding request for the irrigation project. January 2024 Council will review thefinal design and designate funds for the final project. February 2024 staff will work with the skatepark designer, California Skateparks, to finalize the construction documents for the Public Works bid package.

Present completed EIR to Environmental Review Board by December 2023, Following ERB approval, Planning Commission will review and approve final design. Feb 2024 Council will review final design, designate funds and approve final project. March 2024 staff will work with skatepark designer, California Skateparks, to complete irrigation plan and finalize construction documents.

MALIBU PRIORITY PROJECT LIST 4
In September 2018, the Planning Commission held a public hearing on this item, provided its recommendation on the draft ordinance, and directed staff to come back with a final recommendation. In Fiscal Year 2019-2020, the Planning Commission hearing on the updated draft ordinance was postponed in order to address changes in State law that became effective January 1, 2020. During Fiscal Year 2020-2021, staff incorporated the guidance received from the California Coastal Commission (CCC) and State into a draft ordinance which will be presented to the Planning Commission and City Council. In Fiscal Year 2021-2022, the City received a Local Early Action Planning (LEAP) grant to implement technological improvements to streamline the ADU permit application process. In Fiscal Year 2022-23, staff will submit the Local Coastal Program Amendment (LCPA) to the CCC for certification and monitor the progress of the LCPA review bythe CCC. Staff will also administer and implement the LEAP grant. ESD: SB 897: Accessory Dwelling Units (ADU) / Junior Accessory Dwelling Units (JADU). Effective in 2023, SB 897 prohibits a local agency from denying a permit for an ADU due to nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety. It also prohibits the denial of a permit for an unpermitted ADU that was constructedprior to January 1, 2018, due to a violation of building standards unless the local agency makes a finding that correcting the violation is necessary to protect the health and safety of the public or occupants of the structure. SB 897 states that the construction of an ADU cannot have a Group R Occupancy Change under the local building code unless the enforcement agency makes a written finding based on substantial evidence in the record that the construction of an ADU could have a specific, adverse impact on public health and safety. SB 897 also states that the construction of an ADU on a property does not trigger a requirement for fire sprinklers in the proposed or existing primary dwelling. Finally, the bill requires a permitting agency to approve or deny an application for an ADU or JADU within 60 days of receiving the application.

ENHANCE ENVIRONMENTAL EFFORTS / PROTECT AND IMPROVE WATER RESOURCES Coastal Vulnerability Assessment
ESD/PL Yolanda In September 2019, Council awarded a professional services contract for the development of a coastal vulnerability assessment. ESD staff and its coastal engineering consultants are working to perform an assessment of vulnerabilities along the local shoreline due to erosion and sea level rise to help inform City planning efforts by identifying impact thresholds at which significant planning areas, assets or coastal resources could be impacted by sea level rise. The consequence of the identified impacts will also inform City policies and programs to help minimize risk to important infrastructure, basic services and valuable resources. The vulnerabilities and consequences identified in this assessment will be used to facilitate prioritizing planning efforts to account for the urgency (time horizon) of each impact, and the importance of each impact on the community and resources. The first planned public workshop to solicit community input was postponed due to COVID-19. Due to the delay of the workshops, the Coastal Vulnerability Assessment agreement was extended to 10/01/23; however, the consultants remain on hold while staff internally reviews draft documents.

Phase 1 of the Assessment project was completed November 16, 2023. An inperson public workshop was held on November 14 at City Hall, and a virtual public workshop was held on November 16 via Zoom and live streamed at Santa Monica College to present the results of the technical study and show projected sea level rise scenarios along Malibu's coast. To encourage public participation, a rigorous outreach campaign was conducted in October-November 2023 to include sending over 3,000 postcards, 800 emails, and 332 calls to coastal residents, 1:1 meetings with stakeholders at City Hall or Zoom, social media, website newsflash, newspaper ad, radio, and a press release. Phase 2 of the project will involve follow-up meetings with stakeholders, City and USC Sea Granthosted site visits to beaches during the King Tide, and a community forum in January 2024 for additional project feedback. Project remains on track to meet expected deadlines.

Sept 11 CC Meeting- Agreement Extension brought for approval. Outreach material to be released upon agreement approval. Public workshop to be conducted by Feb 2024.

PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Accessory Dwelling Unit (ADU) Ordinance
ESD/PL Richard, Tyler,
Joyce (Consultant)
PLN: Staff presented the ADU ordinance to the Council on September 11, 2023 and received comments from the City Council. The item was again presented to the Council at its November 27, 2023 meeting. Council provided additional comments and staff will return on December 11 with revisions. ESD: Still in Planning.

Staff is currently working on that feedback and anticipates to return to the Council by January 2024. Then submit to HCD and Local Coastal Program amendments will be submitted to the California Coastal Commission.

MALIBU PRIORITY PROJECT LIST 5

PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Exterior Elevated Elements (SB 326)
ESD Yolanda Exterior Elevated Elements. SB 326 (Civil Code Section 5551) requires Associations and multi-family properties to conduct regular inspection of balconies and other exterior structural elements supported by wood or woodbased products. Commonly referred to as the “balcony bill,” exterior elevated elements must be evaluated, inspected, and repaired, if necessary. Any Association with three or more dwelling units in a building must comply with this law. The reason for SB 326 was a tragic accident that claimed six lives and injured several others due to the failure of building components. The State seeks to prevent future injuries and loss of life.

Research was conducted on SB 326 and other municipality's existing programs. Staff is drafting the Exterior Elevated Elements (E3) ordinance and will be coordinating with the City Attorney. This item is scheduled for the January 22, 2024 CC meeting. Project remains on track to meet expected deadlines.

Set up implementation steps for a City program. Begin education and outreach to the Community over first 6 months of 2024

ENHANCE ENVIRONMENTAL EFFORTS / PROTECT AND IMPROVE WATER RESOURCES Update Geotechnical and Coastal Engineering Guidelines
ESD Yolanda Update the City’s Geotechnical and Coastal Engineering Guidelines. Staff will work with the City’s geotechnical consulting firm to update the existing Geotechnical Guidelines to be consistent with new 2023 codes and ordinances and the standard of care in the geotechnical industry.

Staff continues to work with the City’s geotechnical consulting firm to update the existing Geotechnical Guidelines. Draft guidelines are under review internally, it is expected that the guidelines will be provided to stakeholders for comment by December. Project remains on track to meet expected deadlines.

Work with coastal engineering consultants to complete draft guidelines. Release guidelines to public for comments by Feb 2024

FISCAL SUSTAINABILITY AND TRANSPARENCY
Finance Operations - Fee Schedule Update
MS Joe T, Renee, The City derives its annual revenue from a number of sources, one type of which is user and regulatory fees. User and regulatory fees are intended to cover all or portion of the costs incurred by the City for providing fee-related services and activities that are not otherwise provided to those not paying the fee. The last time a study was conducted was June 2015. Finance staff will conduct a comprehensive fee study in order to update the fees.

Council Awarded (November 13, 2023) the agreement to Matrix Consulting Group, Ltd., to conduct the Fee Study. Study will kick-off in December and will take an estimated 4 months. Target to implement results for FY 2024-25, July 1, 2024.

RFP closed Aug 2023, review and select firm, likely award by the November 13th Council meeting - accomplishedJuly 2024 - Implement new Fee Schedule

EFFICENT AND EFFECTIVE CITY SERVICES
Information Technology Strategic Plan Implementation
MS Joe T, Rob H,
Mario, Mahan, Ian
RFP sent out to have a consulting firm provide an organization wide IT Strategic Plan. Selected firm will meet with all stakeholders, review current IT infrastructure and configuration and provide recommendations for improvement.

Council Awarded (October 23, 2023) the agreement to SDI ., to conduct the Assessment and Strategic Plan. Kick-off at beginning of December.

October 23 CC meeting - Bring Consultant contract for award. - accomplishedNovember 2023 - April 2024 consultant will research, investigate, and interview to prepare a complete IT strategic plan for CC presentation by April 2024

PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
Malibu Community Labor Exchange Permanent Office
MS/PW/PL Alexis, Adrian,
Rob D, MCLE,
Complete Wastewater allocation transfer, CDP and CUP processing, get foundation designed, develop specs for modular office build for RFP bid, coordinate with SMC and County to connect their underground utilities. Work with MCLE and CDBG to obtain Revolving Loan to cover construction costs The City has received authorization from CDBG to utilize the professional services of Kimley Horn (KH) withing the scope of the City's existing contract. KH is doing the engineering design for the foundation/pad and permanent office. Once completed, the City will issue a bid for the construction of the foundation and installation of the permanent office. Santa Monica College (SMC) and County are working on the design and construction of the underground utilities.

Foundation and Office design to be completed by beginning of January 2024. Bid for manufactured Office to be released by January 30, 2024. Wastewater Allocation to be brought forward to City Council in February of 2024 pending City Attorney sign off.

MALIBU PRIORITY PROJECT LIST 6

ENHANCE ENVIRONMENTAL EFFORTS / PROTECT AND IMPROVE WATER RESOURCES Civic Center Water Treatment Facility - Phase Two (CCWTF)

PW/MS/PL/ESD
Rob D The construction of CCWTF Phase One was completed in Fiscal Year 2018-2019.

The design of Phase Two began in Fiscal Year 2019-2020. Phase Two expands the wastewater collection and recycled water system to include properties in Malibu Colony, the condominiums on Civic Center Way, HRL Laboratories, and a portion of the Serra Canyon neighborhood. In addition, the treatment plant will be expanded to treat the additional wastewater from these properties. The work will include preparing a CDP, construction plans, project specifications and cost estimates. In order to meet the currently mandated completion date of 2024, the project would need to begin construction in 2022. In February 2022, Council directed staff to seek an extension to the MOU between the City and the Regional Board regarding the implementation of Phase 2. The City sent a letter to the Regional Board seeking an 8-month time extension. In addition, an assessment district will need to be formed to fund the project in Fiscal Year 2022-23. To help fund the project, staff is seeking grants and low interest loans.

PW: Staff met with the Regional Board about the issues encountered from the Cultural Resource discovery within the project limits and how this discovery will have a significant impact on the delivery of this project. Due to the recent discoveries, the Regional Board is willing to modify the boundaries of Phase 2 to remove those properties that are impacted with this impact. Staff is currently working with the Regional Board on how the Phase 2 boundaries can be modified so that the project could move forward. ESD: Continue to coordinate with PW as neededPLN: Continue to coordinate with PW as needed. The Project will require an Addendum to the Final EIR and CDP hearing.

Project delayed do to requirement to develop a cultural resource monitoring plan. The City and State Water Board will work on plan and anticipate plan completion by mid 2024. This date will be modified on a revised Phase Two boundary map. New completion dates and a revised MOU will be developed and submitted to the Council for approval.

PRESERVE MALIBU'S RURAL RESIDENTIAL CHARACTER
PCH Signal Synchronization Project
PW Rob D. This project will install communication between the existing traffic signals on PCH, from Topanga Canyon Road to John Tyler Drive, and connect the signals back to the Caltrans Traffic Management Center, allowing Caltrans to control and operate the signals and the signal system remotely. The City acquired consultants and is managing the design, the permit process with Caltrans, and the construction phase of the project. Funding for the design and construction of this project is provided through Measure R funds administered by LA Metro.

Project is proceeding per plan without any issues. Awaiting delivery of critical items. Expect completion of conduit installation by Feb 2024

Agenda Item # 6.B..

Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Alexis Brown, Deputy City Manager
Approved by: Steve McClary, City Manager
Date prepared: November 27, 2023 Meeting date: December 11, 2023 Subject: Reorganization of City Council Agenda Format for Regular City Council Meetings
RECOMMENDED ACTION: Adopt Resolution No. 23-53 superseding and replacing Resolution No. 99-007 and Section 1 (VI)(A) of Resolution No. 98-083 to establish the start time and format for Regular City Council Meetings.

FISCAL IMPACT: There is no fiscal impact associated with the recommended action.

STRATEGIC PRIORITY: This item supports the Malibu Culture priority identified in the Adopted FY 2023-24 Strategic Priority Project List.

DISCUSSION: The suggested agenda reorder is intended to better promote community engagement and improve culture. On September 27, 2023, the Malibu City Council adopted a new Strategic Work Plan identifying 20 items as “Priority Projects.” Under the core focus of Top Workplace Culture-Recruitment and Retention, the main project identified as Malibu Culture highlighted several key areas such as recruitment and retention, workplace morale and employee culture. Several initiatives to support the Malibu Culture Project were discussed: including consideration for the re-ordering of the City Council’s agenda format and establishing a new start time for regular meetings.

In the proposed changes, you will see a recommended start time of 6:00 PM, a reprioritization of the consent agenda and council/committee/commission reports, and the separation of in-person public comment for items not on the agenda from remote participation. The new format is intended to prioritize city business, promote local public participation, promote dialogue on the actionable agenda items, and assist in mitigating security concerns related to zoom bombings.

City Council Meeting
12-11-23
Item

6.B.

Agenda Item # 6.B..

Additionally, the agenda re-order is an effective strategy to address staff burnout by promoting effective time management and a healthier balanced work environment.

Achieving a healthy work-life balance is not only beneficial for our employees’ well-being, but also positively influences productivity, job satisfaction and overall organizational success. This furthers the city’s efforts for an effective recruitment and retention strategy, with an overall benefit and goal of providing quality service for the Malibu community.

ALTERNATIVES:
• Provide Direction to Staff and reprioritize proposed agenda format. • Take No Action and continue to conduct meetings as established by Resolution No. 99-007 and Resolution No. 98-083.

ATTACHMENTS:

1. Resolution No. 23-53

2. Mock Up on New Agenda Format
RESOLUTION NO. 23-53

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MALIBU
SUPERSEDING AND REPLACING RESOLUTION NO. 99-007 AND SECTION 1(VI)(A) OF RESOLUTION NO. 98-083 AND ESTABLISHING THE START

TIME AND FORMAT FOR REGULAR CITY COUNCIL MEETINGS
The City Council of the City of Malibu does hereby find, order, and resolve as follows:

SECTION 1. This resolution supersedes and replaces Resolution No. 99-007 and Section (VI)(A) of Resolution 98-083.

The following format for regular City Council agendas is hereby adopted:

A. Format: The format of the City Council agendas shall be as follows unless otherwise re-ordered by Council at a specific meeting.

1. Call to Order

2. Roll Call

3. Pledge of Allegiance

4. Closed Session Report

5. Report on Posting of the Agenda

6. Approval of the Agenda

7. Ceremonial Presentation(s)

8. Consent Calendar

9. Presentations and Updates

10. Written and Oral Communications from the Public Participating In-Person

11. Ordinances and Public Hearings

12. Old Business

13. New Business

14. Council Items

15. Oral Communications from the Public Participating Remotely

16. Reports and Announcements(Commission, City Council and City Manager)

17. Adjournment
SECTION 2.

The start time for regular City Council meetings is governed by Malibu Municipal Code Section

2.08.010. This section allows the meeting time to be changed by resolution of the City Council. The regular meeting time of the City Council is hereby adopted as follows:

A. Regular meetings of the City Council shall be held on the second and fourth Mondays of each month at 6:00 p.m. Closed session may be held between 5:00 p.m. and 6:00 p.m. No closed session will be held during said hours unless the posted agenda of the regular meeting indicates that such sessions will take place; in the absence of such notification, the regular meeting shall commence at the hour of six p.m.

B. Prompt Call to Order at 6:00 p.m. and adjournment by 10:00 p.m.

Resolution No. 23-53

_____________________
a. The City Council shall start their regular meetings promptly at 6:00 p.m. The City Council shall not hear any new items of business after 10:00 p.m. unless two-thirds of City Councilmembers vote to do so. Prior to adjournment, the City Council shall allow for public comment and take up those items required by law.

SECTION 3. This resolution shall take effect February 1, 2024.

SECTION 4. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED, APPROVED, and ADOPTED this 11th day of December 2023. _____________________________
STEVE UHRING, Mayor
ATTEST:
__________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM:
__________________________________
TREVOR RUSIN, Interim City Attorney
HOW TO VIEW THE MEETING: The meeting will be live streamed at www.malibucity.org/video and via Zoom Webinar.

HOW TO PARTICIPATE BEFORE THE MEETING: Members of the public are encouraged to submit email correspondence to [email protected] before the meeting begins.

HOW TO PARTICIPATE IN-PERSON DURING THE MEETING: Members of the public may speak during the meeting in-person or through the Zoom application. In order to participate in-person, each speaker must complete and submit to the Recording Secretary a Request to Speak form. In-person participants may also surrender their opportunity to speak on a particular item to defer one minute to another in-person speaker.

HOW TO PARTICIPATE REMOTELY DURING THE MEETING: Members of the public may speak during the meeting in-person or through the Zoom application. In order to participate remotely, you must be present in the Zoom Webinar during the item that you would like to speak on and use the Raise Hand feature to request to speak when the Mayor calls the item. When you join the Zoom Webinar you may see a pop-up asking you to enter an email address, but a valid email address is not required. Be advised that those participating via Zoom do so at their own risk; remote participants should not expect the meeting to be cancelled or continued due to the inability of some members of the public to access the remote meeting.

Malibu City Council
Regular Meeting Agenda
Monday, February 12, 2024
5:00 P.M. - CLOSED SESSION
City Hall – Council Chambers (call to order)
Westward Room (closed session)
23825 Stuart Ranch Road
6:00 P.M. – CITY COUNCIL REGULAR MEETING
City Hall – Council Chambers
23825 Stuart Ranch Road
Zoom Webinar Link:

Five p.m. Convene for Purpose of Closed Session
Call to Order – Mayor (Council Chambers)
Public Comment on Closed Session Items
City Council Regular Meeting Agenda Page - 2 - February 12, 2023 Recess to Closed Session (to be held in the Westward Room) This time has been set aside for the City Council to meet in a closed session to discuss matters pursuant to Government Code Section 54956.9. Based on the advice of the City Attorney, discussion in open session concerning these matters would prejudice the position of the City in this litigation. The City Attorney will give an additional oral report regarding the Closed Session at the beginning of the next regular City Council meeting.

At the conclusion of the Closed Session, the Council may continue any item listed on the Closed Session agenda to the Open Session agenda for discussion or to take formal action as it may deem appropriate.

Six p.m. Regular Session
Call to Order - Mayor
Roll Call - Recording Secretary
Pledge of Allegiance
Closed Session Report
Report on Posting of Agenda
Approval of Agenda

1. Ceremonial Presentations

2. Consent Calendar
A. Previously Discussed Items
B. New Items

3. Presentations and Updates

4. Written and Oral Communications from the Public Participating In-Person A. Communications from the Public concerning matters which are not on the agenda but for which the City Council hassubject matter jurisdiction. City Council may not act on these matters except to refer the matters to staff or schedule the matters for a future agenda.

5. Ordinances and Public Hearings

6. Old Business

7. New Business

8. Council Items
City Council Regular Meeting Agenda Page - 3 - February 12, 2023

9. Oral Communications from the Public Participating Remotely A. Communications from the Public concerning matters which are not on the agenda but for which the City Council hassubject matter jurisdiction. City Council may not act on these matters except to refer the matters to staff or schedule the matters for a future agenda.

10. Reports and Announcements
A. Commission, and Committee
B. Mayor and Councilmember meeting attendance, reports and inquiries C. City Manager Report
Adjournment
Future Meetings
Guide to the City Council Proceedings
The Oral Communication portions of the agenda are for members of the public to present items, which are not listed on the agenda but are under the subject matter jurisdiction of the City Council. No action may be taken under, except to direct staff, unless the Council, by a two-thirds vote, determines that there is a need to take immediate action and that need came to the attention of the City after the posting of the agenda. Although no action may be taken, the Council and staff will follow up, at an appropriate time, on those items needing response. Each speaker is limited to three (3) minutes.

Members of the public may speak during the meeting in-person or through the Zoom application. In-person comments will be heard in section 4.A. and remote comments will be heard in section 9.A. In order to participate remotely, you must be present in the Zoom Webinar during the item that you would like to speak on and use the Raise Hand feature to request to speak when the Mayor calls the item. In order to participate in-person, each speaker must complete and submit to the Recording Secretary a Request to Speak form prior to the beginning of the item being announced by the Mayor.

In person participants may surrender their time by deferring one (1) minute to another speaker, not to exceed a total of eight (8) minutes. The speaker wishing to defer time must be present when the item is heard, and their form must be submitted with the speaker form for the individual they are deferring time to. Speakers are taken in the order slips are submitted or hands are raised.

Itemsin Consent Calendar Section A have already been considered by the Council at a previousmeeting where the public was invited to comment, after which a decision was made. These items are not subject to public discussion at this meeting because the vote taken at the previous meeting was final. Resolutions concerning decisions made at previous meetings are for the purpose of memorializing the decision to assure the accuracy of the findings, the prior vote, and any conditions imposed.

Items in Consent Calendar Section B have not been discussed previously by the Council. If discussion is desired, an item may be pulled from the Consent Calendar for individual consideration by Councilmember request.

Councilmembers may indicate a negative or abstaining vote on any individual item by so declaring prior to the vote on the motion to adopt the entire Consent Calendar. Items excluded from the Consent Calendar will be taken up by the Council following the action on the Consent Calendar. The Council will take up the removed itemsin sequential order. Public speakers may comment on Consent Calendar items before the Consent Calendar is taken up by the Council. Public comment shall follow the rules as set forth under Oral Communication For Public Hearings involving zoning matters the appellant and applicant will be given 15 minutes each to present their position to the City Council, including rebuttal time. All other testimony shall follow the rules as set forth under Oral Communication.

City Council Regular Meeting Agenda Page - 4 - February 12, 2023 Old Business items have appeared on previous agendas but have either been continued or tabled to this meeting with no final action having been taken. Public comment shall follow the rules as set forth under Oral Communication.

Items in New Business are items which are appearing for the first time for formal action. Public comment shall follow the rules as set forth under Oral Communication.

City Council Items are items which individual members of the City Council may bring up for action, to propose future agenda items or to suggest future staff assignments.

After 10:00 p.m., no new items will be taken-up until the Council hears oral communications from the public participating remotely and the Councilmember provide their meeting attendance reports. No other new items will be taken up after 10:00 p.m. without a two-thirds vote of the City Council.

City Council meetings are aired live and replayed on City of Malibu Government Access Channel 3 and are available on demand on the City’s website at www.malibucity.org/video. Copies of the staff reports or other written documentation relating to each item of business described above are on file in the office of the City Clerk, Malibu City Hall, 23825 Stuart Ranch Road, Malibu, California, and are available for public inspection during regular office hours, which are 7:30 a.m. to 5:30 p.m. Monday through Thursday and 7:30 a.m. to 4:30 p.m. Friday. Written materials distributed to the City Council within 72 hours of the City Council meeting are available for public inspection immediately upon distribution in the City Clerk's office at 23825 Stuart Ranch Road, Malibu, California (Government Code Section 54957.5.b.2). Copies of staff reports and written materials may be purchased for $0.10 per page.

TheCity Hall phone number is (310) 456-2489. To contact City Hall using a telecommunication device for the deaf (TDD), please call (800) 735-2929 and a California Relay Service operator will assist you. In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact Environmental Sustainability Director Yolanda Bundy, (310) 456-2489, ext. 229. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR 35.102-35.104 ADD Title II].

Requests to show an audio or video presentation during a Council meeting should be directed to the Media Team at [email protected]. Material must be submitted by 12:00 p.m. on the meeting day.

I hereby certify under penalty of perjury, under the laws of the State of California that the foregoing agenda was posted in accordance with the applicable legal requirements. Regular and Adjourned Regular meeting agendas may be amended up to 72 hours in advance of the meeting. Dated this Xth day of Month 2023 at 2:00 p.m.

Kelsey Pettijohn, City Clerk

Agenda Item # 6.C.

Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Kristin Riesgo, Community Services Director Approved by: Steve McClary, City Manager
Date prepared: November 9, 2023 Meeting date: December 11, 2023 Subject: Road Race Agreement
RECOMMENDED ACTION: At the recommendation of the Road Race Ad Hoc Committee, approve the Agreements with Malibu Race Series LLC and Zuma Foundation Inc. for the two allowable Road Race Temporary Use Permits.

FISCAL IMPACT: There is no fiscal impact associated with the recommended action.

STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.

DISCUSSION: On December 11, 2012, Council adopted City Council Policy #47 - Road Race Policy (Attachment 1). In accordance with the Road Race Policy, the City may grant a maximum of two temporary use permits for marathons, triathlons, and cycling events per calendar year.

On August 12, 2013, the City entered into a 10-year Agreement with Michael Epstein Sports Productions Inc. to host the Malibu Triathlon (Triathlon) through November 1, 2023. From 2017 to 2021 the Agreement transferred between two other agencies, and from 2021 to 2023 Super League Holdings PTE LTD (Super League) organized the Triathlon.

On November 14, 2022, Council reviewed a proposal for a new five-year Agreement with Super League, which would allow them to continue operating the event through October 2027. Council assessed the request and directed staff to bring back an item in January 2023 to form and appoint members to an Ad Hoc Committee to review the City’s Road Race Policy and proposed Super League Triathlon agreement.

City Council Meeting
12-11-23
Item

6.C.

Agenda Item # 6.C.

On January 9, 2023, Councilmembers Grisanti and Riggins were appointed to the Road Race Ad Hoc Committee (Ad Hoc). The Ad Hoc met with staff and reviewed the Road Race Policy and recommended opening a Request for Proposals (RFP).

On August 28, 2023, Council approved opening a Road Race RFP. Staff worked with the Ad Hoc to compile the proposal requirements, timelines, and selection process. The Road Race RFP was issued August 30, 2023, and the City received four proposals by the September 27, 2023 deadline.

The Ad Hoc reviewed the proposals and conducted interviews with each race organizer.

The evaluation process examined the organization’s experience in addition to community benefits and involvement, road race impacts, registration data, proposed street closures, and financial documentation.

Following a thorough evaluation and screening process, the Ad Hoc has recommended the City award the agreements for the two allowable Temporary Use Permits to the Malibu Race Series LLC and Zuma Foundation Inc.

Malibu Race Series LLC and Zuma Foundation Inc. demonstrated a commitment to minimizing road closures and community impacts. The organizations will incorporate programs and partnerships with local organizations. In addition to coordinating the adult races, each organization will plan a children’s race that will encourage fitness, goal setting, and the race experience. Fundraising opportunities will be prioritized for local non-profit organizations such as the Boys and Girls Club of Malibu and Malibu schools.

Each race organizer has agreed to work with City staff and submit all required documents, permits, and referrals, as part of the race requirements listed in the City Council Policy #47 - Road Race Policy.

ATTACHMENTS: 1) City Council Policy #47 – Road Race Policy 2) Malibu Race Service LLC Road Race Agreement
3) Zuma Foundation Inc. Road Race Agreement
City of Malibu
City Council Policy
Policy #47
______________________________________________________________________ Title: Road Race Policy
Purpose: To establish a process for permitting the use of public roadways for non-motorized (walking, running, bicycling) races and events conducted by the private sector that affect residents or use of public resources.

Policy Statement:

This policy is intended to insure the city and its residents have adequate advance notice of any proposed race or related event and the cooperation of the organizers in order to properly plan city services, such as security, sanitation and traffic control, that are required for such an event.

Implementation:

This policy applies to marathons, triathlons and bicycling races or related events requiring the use of public roads in the City of Malibu.

A. Race requirements

1. A City of Malibu Temporary Use Permit is required for all race events;

2. The City may grant a maximum of two (2) temporary use permits for marathons, triathlons, and cycling events per calendar year;

3. Race courses are limited to the section of Pacific Coast Highway between Zuma Beach and the western city limits of Malibu;

4. Race events may only take place the weekend following Labor Day through April 15;

5. Race events may not be held within 30 days of another race event;

6. Race events must be held on Saturdays and/or Sundays, excluding Citydesignated holidays;

7. Race events must take place during daylight hours, between sunrise and sunset;

8. In the event of a “Red Flag Warning” condition, as determined by the Los Angeles County Fire Department, race organizers shall be required to cancel or postpone any race event on the affected days; and

9. The City retains the right to require cancellation or postponement of any race event that risks the health and safety of the racers, spectators, and/or residents due to inclement weather, floods, fire, or other similar circumstances which substantially interfere with the operation of the race event.

ATTACHMENT 1
B. Requests that exceed race requirements
In order to exceed the requirements, event organizers are required to submit a completed Temporary Use Permit Application and receive City Council approval of the proposed modifications by adoption of a resolution.

C. Additional application requirements
In addition to the application requirements, the following additional information, submitted to the Planning Division, shall constitute a complete application:

1. An overall race plan which includes:
a. Course route designation;
b. Proposed road and intersection closures;
c. Locations of proposed first aid, water stations and restroom facilities; and d. Location of medical assistance facilities, to be determined by the Los Angeles County Fire Department.

2. Maximum number of participants

3. Traffic and Parking Plan
a. For events on City streets, the plan shall be approved by the City Public Works Department.
b. For events on State highways, the plan shall be approved by the State of California Department of Transportation (Caltrans).

D. Special Event Encroachment Permit
In addition to the Temporary Use Permit, a Special Event Encroachment Permit shall be obtained from the City Public Works Department for any events, including but not limited to setup, race course, staging, and parking, to be located in any City public right-of-way.

E. Interagency permits
The applicant shall be responsible for obtaining all required permits and permissions from all applicable agencies and jurisdictions. The applicant must comply with all conditions set forth by all applicable agencies and jurisdictions, including but not limited to:

1. City of Malibu Planning Department

2. City of Malibu Public Works Department

3. State of California Department of Transportation

4. State of California Department of Parks and Recreation

5. California Highway Patrol

6. County of Los Angeles Sheriff’s Department
ATTACHMENT 1

7. County of Los Angeles Department of Beaches and Harbors

8. County of Los Angeles Department of Health Services

9. County of Los Angeles Fire Department

10. County of Los Angeles Department of Public Works
Date Adopted:

December 10, 2012
ATTACHMENT 1

AGREEMENT BETWEEN THE CITY OF MALIBU

AND MALIBU RACE SERIES LLC
This Agreement is made and entered into as of ________________, by and between the City of Malibu (hereinafter referred to as the "City"), and Malibu Race Series LLC (hereinafter referred to as "MRS")
The City and MRS agree as follows:

R E C I T A L S
A. The City desires to provide recreational events that are of interest and benefit to the residents of the City.

B. MRS is in the business of producing and conducting running events.

C. MRS warrants to the City that it has the qualifications, experience, and facilities to perform properly and timely the services under this Agreement.

D. The City and MRS have agreed that MRS shall produce and conduct a 5K and Half Marathon Race Event (as defined herein) within Malibu city limits and outlying areas pursuant to the terms and conditions set forth in Exhibit A of this Agreement.

NOW, THEREFORE, the City and MRS agree as follows:

1.0 INTRODUCTORY TERMS.

1.1 Recitals. The statements contained in the recitals set forth above ("Recitals") are true and correct, and the Recitals are by this reference made a part of this Agreement.

1.2 Exhibits. The exhibits which are attached to this Agreement are by this reference made a part of this Agreement.

1.3 Abbreviations and Definitions. The following abbreviations and definitions will be used for purposes of this Agreement:

1.3.1 The abbreviations of the Parties set forth in the Preamble will be used for purposes of this Agreement.

1.3.2 "Additional City Services" means the following services coordinated and paid by MRS for the 5K and Half Marathon Race Event, as required by the City Temporary Use Permit, including: (1) law enforcement and fire protection; (2) garbage and refuse disposal; (3) crowd control and traffic control; (4) utilities; and (5) any additional services the City deems appropriate in its sole and absolute discretion.

1.3.3 "City Permit and Use Fees" means the fees and charges imposed by the City in connection with the issuance of permits and the fees and charges imposed by the Agreement between the
City of Malibu and Malibu Race Series LLC

City in connection with MRS’s 5K and Half Marathon Race Event (as defined herein).

1.3.4 "Concessions" means all concessions associated with the 5K and Half Marathon Race Event (as defined herein) offered or provided for a fee within the Race Facilities and during the Race Period, including, without limitation: (1) alcoholic and nonalcoholic beverages; (2) wearing apparel; (3) programs; (4) souvenirs; (5) seating; and (6) all other merchandise or services offered for sale in connection with the 5K and Half Marathon Race Event and during the 5K and Half Marathon Race Event Period.

1.3.5 "Laws" means all existing and future federal, state, and local constitutions, statutes, ordinances, rules, regulations, and resolutions, and all orders and decrees of lawful authorities having jurisdiction over the matter at issue.

1.3.6 "Race Course" means the staging and routes used by MRS for the 5K and Half Marathon Race Event as approved through the City Temporary Use Permit Application Process.

1.3.7 "5K and Half Marathon Race Event" means MRS’s athletic racing event consisting of running, including a 5K Race, Kids 1K Race, Kids 1 Mile Race, a Half Marathon Race to be held on:

Year Race Dates
2024 November 9 - 10
2025 November 8 - 9
2026 November 14 - 15
2027 November 13 - 14
2028 November 11 - 12
Set-up begins 5 days preceding the 5K and Half Marathon Race Event date. All equipment and materials will be removed the day after the race ends.

1.3.8 "Race Facilities" means those lands, improvements, buildings, public or other rights of way, or property, owned, leased to, or controlled by the City or under City authority used by MRS for the purpose of staging the 5K and Half Marathon Race Event.

1.3.9 "Race Period" means from 7:00 AM on the Monday preceding the 5K and Half Marathon Race Event until 5:00 PM on the Monday following the 5K and Half Marathon Race Event.

1.3.10 "Ticket Sale Rights" means the right to sell tickets and otherwise charge for admission to, or for participation in, the 5K and Half Marathon Race Event, and to sell tickets and otherwise charge for admission to, or for the use of Race Facilities in connection with 5K and Half Marathon Race Event, excluding the right to sell tickets to the general public that are solely for parking.

2.0 TERM OF AGREEMENT. This Agreement will become effective on December 15, 2023, and will remain in effect for a period of five (5) years from said date unless Agreement between the
City of Malibu and Malibu Race Series LLC

otherwise expressly extended and agreed to by both parties or terminated by either party as provided herein.

3.0 CITY AGENT. The City Manager, or their designee, for the purposes of this Agreement, is the agent for the City; whenever approval or authorization is required, MRS understands that the City Manager, or their designee, has the authority to provide that approval or authorization.

4.0 WARRANTIES AND REPRESENTATIONS

4.1 Warranties and Representations by MRS. MRS warrants and represents to the City as follows:

4.1.1 MRS is a for-profit corporation duly formed, presently existing, and in good standing under the laws of the State of California.

4.1.2 All appropriate action exists or has been accomplished by MRS so as to duly authorize the officers set forth below to execute this Agreement and all documents contemplated hereby on behalf of MRS so as to fully and firmly bind MRS to the terms and provisions of this Agreement and such other documents.

4.1.3 MRS has the financial capability to and shall conduct a 5K and Half Marathon Race Event in accordance with this Agreement.

4.2 Warranties and Representations by City. The City warrants and represents to MRS as follows:

4.2.1 The City is a municipality organized and existing under the laws of the State of California.

4.2.2 All appropriate action exists or has been accomplished by the City so as to duly authorize the officials set forth below to execute this Agreement and all documents contemplated hereby on behalf of the City so as to fully and firmly bind the City to the terms and provisions of this Agreement and such other documents.

5.0 SCHEDULING AND CONDUCTING A 5K and Half Marathon Race Event

5.1 Obligation to Conduct a 5K and Half Marathon Race Event.

MRS shall produce and conduct a 5K and Half Marathon Race Event on Saturday and Sunday, commencing in the year 2024, said dates will be determined by MRS no later than March 1 of each year and will be on the dates set forth in Exhibit B or within two weeks of such dates, excluding Labor Day weekends. MRS shall provide the City with written notice in the form of a City Temporary Use Permit Application no later than ninety (90) days prior to the first day of the 5K and Half Marathon Race Event Period.

5.2 5K and Half Marathon Race Event. The 5K and Half Marathon Agreement between the
City of Malibu and Malibu Race Series LLC

Race Event shall be conducted on the Half Marathon Course on Saturday and Sunday during the 5K and Half Marathon Race Event period and shall be held during daylight hours only. The 5K and Half Marathon Race Event shall be conducted in accordance with the terms and conditions of this Agreement, the City's Road Race Policy and all necessary governmental permits and/or approvals.

5.3 Set-Up, Operation and Dismantling Periods. MRS shall have the use of the Half Marathon Facilities during the 5K and Half Marathon Race Event Period for purposes of setup of the facilities and apparatus associated with the 5K and Half Marathon Race Event provided, however, that access to the Half Marathon Race Course will only be restricted during the time necessary to conduct the 5K and Half Marathon Race Event. It is anticipated that all facilities and apparatus associated with the 5K and Half Marathon Race Event will be set up and dismantled during the Race Period. In the event MRS requires additional time to dismantle the facilities and apparatus following the 5K and Half Marathon Race Event, MRS shall be permitted such additional time beyond the Race Period, so long as MRS has commenced the dismantling during the Race Period and continues to proceed in a diligent manner to complete the dismantling. MRS shall provide the City with a schedule indicating the dates and location of setup and dismantling of the facilities and apparatus associated with the 5K and Half Marathon Race Event, along with updates and changes thereto, as soon as is reasonably possible after the necessity for such updates and changes become known to MRS.

5.4 Clean-up and Restoration. MRS shall be responsible for cleaning up the Race Course and Race Facilities at the end of the 5K and Half Marathon Race Event.

Such clean-up shall include, without limitation, removal of litter and debris from City streets and the Race Facilities.

5.5 Conditions of Race Facilities. MRS shall be responsible for promptly returning the Race Facilities to the condition they were in immediately prior to the 5K and Half Marathon Race Event, reasonable wear and tear excepted. MRS shall be responsible for repairing any damage to the Race Facilities occurring during the 5K and Half Marathon Race Event by acts or omissions of Malibu Race Series LLC, its patrons or concessionaires.

5.6 Additional Municipal Services. MRS shall be responsible for the scheduling of and payment for all additional municipal services, as required by the City Temporary Use Permit. In certain circumstances, the City may facilitate the payment for additional municipal services to other federal, state or local governmental agencies. The City’s role in these payments shall only be administrative only (i.e., processing and ensuring the accuracy of the payments) and in no way constitutes the City’s agreement or sign-off on any other services, plans or arrangements provided by other agencies. Thus, the City shall accept no other responsibility other than facilitating the payment and shall have no liability whatsoever from any claims related to MRS and additional municipal services. MRS shall pay the estimated costs and expenses for additional municipal services no later than sixty (60) days prior to the 5K and Half Marathon Race Event. MRS shall pay any remaining costs for additional municipal services no later than sixty (60) days following the 5K and Half Marathon Race Event.

5.7 Compliance with Laws and Related Matters. Malibu Race Series LLC, its officers, employees, volunteers, agents, and concessionaires shall comply with all Agreement between the
City of Malibu and Malibu Race Series LLC

applicable Laws throughout the Term of this Agreement.

5.8 Liability for Expenses. Under no circumstances shall the City be liable for any costs or expenses incurred by MRS in any way related to or connected with the 5K and Half Marathon Race Event unless specifically provided for in this Agreement.

5.9 Authorizations. MRS shall be responsible for seeking and obtaining any and all permits, licenses, certifications, consents, or other authorizations required from any governmental agency or other public or private entity in order to hold the 5K and Half Marathon Race Event and perform all other activities in connection therewith.

6.0 GENERAL TERMS.

6.1 Right to Conduct 5K and Half Marathon Race Event. The City hereby grants to MRS the right to produce and conduct a 5K and Half Marathon Race Event in accordance with the terms and conditions of this Agreement and City Council Policy No. 47 (Road Race Policy). MRS is responsible for applying for and securing all applicable governmental approvals/permits in a timely manner, prior to conducting any portion of the 5K and Half Marathon Race Event or performing any setup activity related to the 5K and Half Marathon Race Event and complying with the City's Road Race Policy. The City and MRS agree that the 5K and Half Marathon Race Event is one of the two road race events which are entitled to seek a City Temporary Use Permit each calendar year as set forth in the City's Road Race Policy. All discretionary authority of the City with respect to any and all such permits and/or approvals is expressly retained and nothing in this Agreement shall be construed as limiting or expanding the City's discretionary authority in any way, or committing the City to any particular decision or outcome, with respect to any requisite permits or approvals. The City's denial of any discretionary permit necessary to conduct the 5K and Half Marathon Race Event shall not be deemed a breach of this Agreement, so long as such denial complies with applicable law and regulation. MRS hereby acknowledges that the City has police powers pursuant to applicable Laws to take reasonable and appropriate action in the event the conduct of the 5K and Half Marathon Race Event, or any portion thereof or activity associated therewith, is endangering the health, safety or welfare of the general public, is violating any applicable law or regulation, or is otherwise creating a public nuisance. The safety of the 5K and Half Marathon Race Event participants shall be the sole responsibility of Malibu Race Series LLC

6.2 Concession Rights. The City hereby grants MRS the right to operate, or to license (in whole or in part) to others, the Concessions associated with the 5K and Half Marathon Race Event during the Race Period. The City agrees not to hereafter extend any Concession rights to any person or entity other than MRS which would permit the operation or licensing of Concessions, or the vending or offering for sale of any goods or services competitive with the Concessions. Notwithstanding the foregoing, this grant of rights to Concessions shall not affect the activities of otherwise properly licensed Malibu merchants and business persons in conducting their trade or business during the 5K and Half Marathon Race Event, or parties with which it has contracted to provide Concessions at any City-owned property or facility.

6.3 Ticket Sale Rights and City Rights. The City hereby grants to MRS exclusive Ticket Sale Rights for the 5K and Half Marathon Race Event.

Agreement between the
City of Malibu and Malibu Race Series LLC

6.4 Participation. The total number of participants for the 5K and Half Marathon Race Event shall not exceed: 5,000 participants.

6.5 No Interest in Land. MRS rights pursuant to this Agreement shall not be construed as a lease, easement, or other interest in land, buildings, or other property of the City.

6.6 Donation. MRS agrees to donate the following minimum amount to the Boys and Girls Club of Malibu or another community-oriented charitable organization as designated by the City, no later than 60 calendar days after the final event date each year.

Year Donation
2024 $25,000
2025 $27,500
2026 $30,000
2027 $32,500
2028 $35,000
MRS agrees that it will identify each benefitting non-profit or community-oriented charitable organization’s specific area or areas that said donation will go towards.

This Agreement and all of its terms, conditions, and provisions, is made and entered into for the sole protection and benefit of MRS and the City and not for the benefit of any other individual or entity. No other person has any right of action of any kind based on any provision of this Agreement nor may any other person be deemed to be a third-party beneficiary under this Agreement.

6.7 Exclusivity. The City will not authorize, without MRS’s permission, any 5K and Half Marathon Race Event, other than the 5K and Half Marathon Race Event organized and conducted by MRS, sixty (60) days before the 5K and Half Marathon Race Event or sixty (60) days after the 5K and Half Marathon Race Event throughout the Term of this Agreement.

6.8 Termination. Either the City or MRS may terminate this Agreement, without cause, by giving the other party six (6) months written notice of such termination and the effective date thereof.

6.8.1 If MRS or the City fail to fulfill in a timely and proper manner its obligations under this Agreement, or if MRS or the City violate any of the covenants, agreements, or stipulations of this Agreement, MRS or the City shall have the right to terminate this Agreement by giving written notice to the other party of such termination and specifying the effective date of such termination. MRS shall be entitled to receive compensation in accordance with the terms of this Agreement for any work satisfactorily completed hereunder.

Notwithstanding the foregoing, MRS shall not be relieved of liability for damage sustained by virtue of any breach of this Agreement, and any payments due under this Agreement may be withheld to offset anticipated damages.

6.9 Non-Assignability. MRS shall not assign or transfer any interest in this Agreement between the
City of Malibu and Malibu Race Series LLC

Agreement without the express prior written consent of the City.

6.10 Non-Discrimination. MRS shall not discriminate as to race, creed, gender, color, national origin, or sexual orientation in the performance of its services and duties pursuant to this Agreement, and will comply with all applicable laws, ordinances, and codes of the Federal, State, County and City governments.

6.11 Insurance. The MRS shall submit to the City certificates indicating compliance with the following minimum insurance requirements no less than ten (10) days prior to prior to 5K and Half Marathon Race Event. The MRS further agrees to comply with all provisions in the attached Exhibit C which is incorporated herein.

6.12 Indemnification. MRS shall indemnify, defend with counsel approved by City, and hold harmless City, its officers, officials, employees, and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys fees, expert fees, and all other costs and fees of litigation) of every nature arising out of or in connection with Malibu Race Series LLC's activities related to producing and conducting a 5K and Half Marathon Race Event hereunder or its failure to comply with any of its obligations contained in this Agreement, regardless of City's passive negligence, but excepting such loss or damage which is caused by the sole active negligence or willful misconduct of the City. Should City in its sole discretion find Malibu Race Series LLC's legal counsel unacceptable, then MRS shall reimburse the City its costs of defense, including without limitation reasonable attorney's fees, expert fees and all other costs and fees of litigation. MRS shall promptly pay any final judgment rendered against the City (and its officers, officials, employees, and volunteers) covered by this indemnity obligation. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.

6.13 Compliance with Applicable Law. MRS and the City shall comply with all applicable laws, ordinances, and codes of the federal, state, county, and city governments, including, without limitation, Malibu Municipal Code Chapter 5.36 Minimum Wage.

6.14 Independent Contractor. This Agreement is by and between the City and MRS and is not intended, and shall not be construed, to create the relationship of agency, servant, employee, partnership, joint venture, or association, as between the City and Malibu Race Series LLC.

6.14.1 MRS shall be an independent contractor and shall have no power to incur any debt or obligation for or on behalf of the City. Neither the City nor any of its officers or employees shall have any control over the conduct of Malibu Race Series LLC, or any of Malibu Race Series LLC's employees, except as herein set forth, and MRS expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees are in any manner employees of the City, it being distinctly understood that MRS is and shall at all times remain to the City a wholly independent contractor and Malibu Race Series LLC's obligations to the City are solely such as are prescribed by this Agreement.

6.14.2 MRS shall not use the City Seal or present the 5K and Half Agreement between the
City of Malibu and Malibu Race Series LLC

Marathon Race Event as a City-organized event without prior approval from the City.

6.15 Legal Construction.

6.15.1 This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed under the laws of the State of California.

6.15.2 This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.

6.15.3 The article and section, captions, and headings herein have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.

6.15.4 Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular shall refer to and include the plural.

6.16 Counterparts. This Agreement may be executed in counterparts and as so executed shall constitute an agreement which shall be binding upon all parties hereto.

6.17 Default. The following shall be deemed events of default ("Default") under this Agreement:

6.17.1 By City. Failure by the City to perform or comply with its obligations or responsibilities hereunder, which is not cured within a reasonable time, but in no event to exceed thirty (30) days following receipt by the City of written notice from MRS specifying with particularity the Default so claimed. The thirty (30) day curative period provided herein may be expanded by so much additional time as is reasonably necessary to cure the Default, provided that the City commences to cure such Default within such thirty (30) day period and thereafter diligently and continuously proceeds to cure the Default.

6.17.2 By Malibu Race Series LLC. Any one or more of the following shall be deemed a Default by Malibu Race Series LLC:

6.17.2.1 Failure of MRS to perform or comply with its
obligations or responsibilities hereunder, which is not cured within a reasonable time, but in no event to exceed thirty (30) days following receipt by MRS of written notice from the City specifying with particularity the Default so claimed. The thirty (30) day curative period provided herein may be expanded by so much additional time as is reasonably necessary to cure the Default provided that MRS commences to cure such Default within such thirty (30) day period and thereafter diligently and continuously proceeds to cure the Default.

6.17.2.2 MRS attempts to assign or transfer any interest in Agreement between the
City of Malibu and Malibu Race Series LLC

this Agreement without the express prior written consent of the City.

6.17.2.3 MRS makes a voluntary assignment for the benefit of its creditors.

6.17.2.4 MRS files a voluntary petition in bankruptcy or becomes the subject of an involuntary petition in bankruptcy which is not discharged within sixty (60) days after the filing of such involuntary petition in bankruptcy.

6.18 Waiver; Remedies Cumulative. Failure by a party to insist upon the performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy. In no event shall either party be liable for any loss of use, loss of time, inconvenience, lost profits or other special, incidental or consequential damages in any way related to or arising from this Agreement or the 5K and Half Marathon Race Event.

6.19 Mitigation of Damages. In all such situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

6.20 Force Majeure. Each Party shall be excused from performance of its obligations hereunder to the extent such performance has been delayed, hindered or prevented by any cause or causes beyond such Party's reasonable control, which shall include, without limitation, labor disputes, riots, civil commotion or insurrection, war, war-like operations or terrorist acts, invasion, rebellion, military or usurped power, sabotage, governmental restrictions, regulations, or controls, inability to obtain any materials or services, fire or other casualties, natural disasters or acts of God. In the event any 5K and Half Marathon Race Event Facility or portion thereof is destroyed or substantially damaged at any time during the Term of this Agreement by fire, casualty or other cause, the City shall not be required to repair or rebuild such 5K and Half Marathon Race Event Facilities or portion thereof. If the RACE Course is unavailable due to circumstances beyond the City's control, the Parties shall mutually agree in writing on a revised RACE Course approved through the City Temporary Use Permit Application Process.

6.21 Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

Agreement between the
City of Malibu and Malibu Race Series LLC

6.22 Entire Agreement. This Agreement constitutes the whole agreement between the City and Malibu Race Series LLC, and neither party has made any representations to the other except as expressly contained herein. Neither party, in executing or performing this Agreement, is relying upon any statement or information not contained in this Agreement. Any changes or modifications to this Agreement must be made in writing appropriately executed by both the City and Malibu Race Series LLC.

6.23 Notices. Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

City: Steve McClary Malibu Race Series
LLC:

Nicolas Angio
City Manager Chief Financial Officer
City of Malibu
23825 Stuart Ranch Road
Malibu Race Series LLC
30765 Pacific Coast Hwy #165
Malibu, CA 90265-4861 Malibu, CA 90265
TEL (310) 456-2489 x 224 TEL: (438) 395-0817
FAX (310) 456-2760 [email protected]

6.24 Warranty of Authorized Signatories and Acceptance of Facsimile or Electronic Signatures. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. The Parties agree that this Contract, agreements ancillary to this Contract, and related documents to be entered into in connection with this Contract will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature. [Signature Page(s) to Follow]
Agreement between the
City of Malibu and Malibu Race Series LLC

This Agreement is executed on __________________, at Malibu, California, and effective as of ___________________.

CITY OF MALIBU: ___________________________________ STEVE MCCLARY, City Manager ATTEST: ___________________________________ KELSEY PETTIJOHN, City Clerk (seal)
MALIBU RACE SERIES LLC: _______________________________ By: NICOLAS ANGIO, CFO Malibu Race Series LLC
APPROVED AS TO FORM: ___________________________________ TREVOR RUSIN, Interim City Attorney

EXHIBIT A
Malibu Race Series LLC

EXHIBIT A
Malibu Race Series LLC

EXHIBIT A
Malibu Race Series LLC

EXHIBIT B
Malibu Race Series LLC
2024 – 2028 Race Dates
General Logistics Timeline
Set up will start at Zuma Beach on the Monday prior to race weekend.

Friday – Event Expo at the Zuma Beach Parking Lot
Saturday – Event Expo, 5K and Kids race within Zuma Beach, including 1K beach run Sunday – Event Expo and Half Marathon
Sunday – Race Take-Down and Clean-Up
Year Race Dates
2024 November 9 - 10
2025 November 8 - 9
2026 November 14 - 15
2027 November 13 - 14
2028 November 11 – 12

EXHIBIT C

INSURANCE LANGUAGE
Without limiting Malibu Race Series LLC’s indemnification of City, and prior to commencement of work and/or services under this Agreement, Malibu Race Series LLC shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.

General Liability Insurance. Malibu Race Series LLC shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.

Automobile Liability Insurance. Malibu Race Series LLC shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Malibu Race Series LLC arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than 2,000,000 combined single limit for each accident.

Professional Liability (Errors & Omissions) Insurance. Malibu Race Series LLC shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Malibu Race Series LLC agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.

Workers’ Compensation Insurance. Malibu Race Series LLC shall maintain Workers’ Compensation Insurance (statutory limits) and Employer’s Liability insurance (with limits of at least $1,000,000).

Malibu Race Series LLC shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.

Umbrella or Excess Liability Insurance. Malibu Race Series LLC shall obtain and maintain an umbrella liability insurance policy with limits that will provide bodily injury, personal injury, and property damage liability coverage, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason, other than bankruptcy or insolvency of said primary insurer; • “Pay on behalf of” wording as opposed to “reimbursement”; • Concurrency of effective dates with primary policies.

Should Malibu Race Series LLC obtain and maintain an excess liability policy, such policy shall be excess over commercial general liability, automobile liability, and employer’s liability policies.

EXHIBIT C
Malibu Race Series LLC

Such policy or policies shall include wording that the excess liability policy follows the terms and conditions of the underlying policies.

OTHER PROVISIONS OR REQUIREMENTS
Proof of Insurance. Malibu Race Series LLC shall provide certificates of insurance and required endorsements to City as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City for the contract period and any additional length of time required thereafter. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

Duration of Coverage. Malibu Race Series LLC shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the Work hereunder by Malibu Race Series LLC, their agents, representatives, employees, or sub Malibu Race Series LLCs.

Primary/Noncontributing. Coverage provided by Malibu Race Series LLC shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured.

City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by City will be promptly reimbursed by Malibu Race Series LLC or City will withhold amounts sufficient to pay premium from Malibu Race Series LLC payments. In the alternative, City may cancel this Agreement.

Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.

Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Malibu Race Series LLC or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Malibu Race Series LLC hereby waives its own right of recovery against

EXHIBIT C
Malibu Race Series LLC

City and shall require similar written express waivers and insurance clauses from each of its sub Malibu Race Series LLCs.

Enforcement of Contract Provisions (Non Estoppel). Malibu Race Series LLC acknowledges and agrees that any actual or alleged failure on the part of the City to inform Malibu Race Series LLC of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.

Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Malibu Race Series LLC maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Malibu Race Series LLC. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

Notice of Cancellation. Malibu Race Series LLC agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Malibu Race Series LLC’s insurers are unwilling to provide such notice, then Malibu Race Series LLC shall have the responsibility of notifying the City immediately in the event of Malibu Race Series LLC’s failure to renew any of the required insurance coverages, or insurer’s cancellation or non-renewal.

Additional Insured Status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.

Prohibition Of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.

Separation of Insureds. A severability of interests’ provision must apply for all additional insureds ensuring that Malibu Race Series LLC’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.

Pass Through Clause. Malibu Race Series LLC agrees to ensure that its sub Malibu Race Series LLCs, subcontractors, and any other party who is brought onto or involved in the project/service by Malibu Race Series LLC (hereinafter collectively “Subcontractor”), provide the same minimum insurance coverage and endorsements required of Malibu Race Series LLC under this Agreement.

Malibu Race Series LLC agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of

EXHIBIT C
Malibu Race Series LLC

this section. However, in the event Malibu Race Series LLC’s Subcontractor cannot comply with this requirement, which proof must be submitted to the City, Malibu Race Series LLC may still be able to utilize the Subcontractor provided Malibu Race Series LLC shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor’s scope of work and services, with limits less than required of the Malibu Race Series LLC, but in all other terms consistent with the Malibu Race Series LLC’s requirements under this Agreement. This provision does not relieve the Malibu Race Series LLC of its contractual obligations under the Agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Malibu Race Series LLC with the ability to utilize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Malibu Race Series LLC under this Agreement given the limited scope of work or services provided by the subcontractor. Malibu Race Series LLC agrees that upon request, all agreements with Subcontractors, and others engaged in the project and/or services, will be submitted to City for review.

City’s Right to Revise Specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Malibu Race Series LLC ninety (90) days’ advance written notice of such change. If such a change results in substantial additional costs to the Malibu Race Series LLC, the City and Malibu Race Series LLC may renegotiate the Malibu Race Series LLC’s compensation.

Self-Insured Retentions. Any self-insured retentions must be declared to and approved by the City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.

Timely Notice Of Claims. Malibu Race Series LLC shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Malibu Race Series LLC’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.

Additional Insurance. The Malibu Race Series LLC shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.

AGREEMENT BETWEEN THE CITY OF MALIBU
AND ZUMA FOUNDATION INC.

This Agreement is made and entered into as of ________________, by and between the City of Malibu (hereinafter referred to as the "City"), and Zuma Foundation Inc. (hereinafter referred to as "Zuma Foundation Inc.")
The City and Zuma Foundation Inc. agree as follows:

R E C I T A L S
A. The City desires to provide recreational events that are of interest and benefit to the residents of the City.

B. Zuma Foundation Inc. produces and conducts running events and triathlons.

C. Zuma Foundation Inc. warrants to the City that it has the qualifications, experience, and facilities to perform properly and timely the services under this Agreement.

D. The City and Zuma Foundation Inc. have agreed that Zuma Foundation Inc. shall produce and conduct a Triathlon Race Event (as defined herein) within Malibu city limits and outlying areas pursuant to the terms and conditions set forth in Exhibit A of this Agreement.

NOW, THEREFORE, the City and Zuma Foundation Inc. agree as follows:

1.0 INTRODUCTORY TERMS.

1.1 Recitals. The statements contained in the recitals set forth above ("Recitals") are true and correct, and the Recitals are by this reference made a part of this Agreement.

1.2 Exhibits. The exhibits which are attached to this Agreement are by this reference made a part of this Agreement.

1.3 Abbreviations and Definitions. The following abbreviations and definitions will be used for purposes of this Agreement:

1.3.1 The abbreviations of the Parties set forth in the Preamble will be used for purposes of this Agreement.

1.3.2 "Additional City Services" means the following services coordinated and paid by Zuma Foundation Inc. for the Triathlon Race Event, as required by the City Temporary Use Permit, including: (1) law enforcement and fire protection; (2) garbage and refuse disposal; (3) crowd control and traffic control; (4) utilities; and (5) any additional services the City deems appropriate in its sole and absolute discretion.

1.3.3 "City Permit and Use Fees" means the fees and charges imposed by the City in connection with the issuance of permits and the fees and charges imposed by the City Agreement between the
City of Malibu and Zuma Foundation Inc.

in connection with Zuma Foundation Inc.'s Triathlon Race Event (as defined herein).

1.3.4 "Concessions" means all concessions associated with the Triathlon Race Event (as defined herein) offered or provided for a fee within the Race Facilities and during the Race Period, including, without limitation: (1) alcoholic and non-alcoholic beverages; (2) wearing apparel; (3) programs; (4) souvenirs; (5) seating; and (6) all other merchandise or services offered for sale in connection with the Triathlon Race Event and during the Triathlon Race Event Period.

1.3.5 "Laws" means all existing and future federal, state, and local constitutions, statutes, ordinances, rules, regulations, and resolutions, and all orders and decrees of lawful authorities having jurisdiction over the matter at issue.

1.3.6 "Race Course" means the staging and routes used by Zuma Foundation Inc. for the Triathlon Race Event as approved through the City Temporary Use Permit Application Process.

1.3.7 " Triathlon Race Event" means Zuma Foundation Inc.'s event, an athletic racing event consisting of swimming, biking, and running a race of a designated distance to be held on:

Year Race Dates
2024 September 14 – 15
2025 September 13 – 14
2026 September 19 – 20
2027 September 18 – 19
2028 September 16 – 17
Set-up begins 5 days preceding the Triathlon Race Event date. All equipment and materials will be removed the day after the race ends.

1.3.8 "Race Facilities" means those lands, improvements, buildings, public or other rights of way, or property, owned, leased to, or controlled by the City or under City authority used by Zuma Foundation Inc. for the purpose of staging the Triathlon Race Event.

1.3.9 "Race Period" means from 7:00 AM on the Monday preceding the Triathlon Race Event until 5:00 PM on the Monday following the Triathlon Race Event.

1.3.10 "Ticket Sale Rights" means the right to sell tickets and otherwise charge for admission to, or for participation in, the Triathlon Race Event, and to sell tickets and otherwise charge for admission to, or for the use of Race Facilities in connection with Triathlon Race Event, excluding the right to sell tickets to the general public that are solely for parking.

2.0 TERM OF AGREEMENT. This Agreement will become effective on December 1 , 2023, and will remain in effect for a period of five (5) years from said date unless otherwise expressly extended and agreed to by both parties or terminated by either party as provided herein.

Agreement between the
City of Malibu and Zuma Foundation Inc.

3.0 CITY AGENT. The City Manager, or their designee, for the purposes of this Agreement, is the agent for the City; whenever approval or authorization is required, Zuma Foundation Inc. understands that the City Manager, or their designee, has the authority to provide that approval or authorization.

4.0 WARRANTIES AND REPRESENTATIONS

4.1 Warranties and Representations by Zuma Foundation Inc.. Zuma Foundation Inc. warrants and represents to the City as follows:

4.1.1 Zuma Foundation Inc. is a non-profit corporation duly formed, presently existing, and in good standing under the laws of the State of California.

4.1.2 All appropriate action exists or has been accomplished by Zuma Foundation Inc. so as to duly authorize the officers set forth below to execute this Agreement and all documents contemplated hereby on behalf of Zuma Foundation Inc. so as to fully and firmly bind Zuma Foundation Inc. to the terms and provisions of this Agreement and such other documents.

4.1.3 Zuma Foundation Inc. has the financial capability to and shall conduct a Triathlon Race Event in accordance with this Agreement.

4.2 Warranties and Representations by City. The City warrants and represents to Zuma Foundation Inc. as follows:

4.2.1 The City is a municipality organized and existing under the laws of the State of California.

4.2.2 All appropriate action exists or has been accomplished by the City so as to duly authorize the officials set forth below to execute this Agreement and all documents contemplated hereby on behalf of the City so as to fully and firmly bind the City to the terms and provisions of this Agreement and such other documents.

5.0 SCHEDULING AND CONDUCTING A Triathlon Race Event

5.1 Obligation to Conduct a Triathlon Race Event. Zuma Foundation Inc. shall produce and conduct a Triathlon Race Event on Saturday and Sunday, commencing in the year 2024, said dates will be determined by Zuma Foundation Inc. no later than March 1 of each year and will be on the dates set forth in Exhibit B or within two weeks of such dates, excluding Labor Day weekends. Zuma Foundation Inc. shall provide the City with written notice in the form of a City Temporary Use Permit Application no later than ninety (90) days prior to the first day of the Triathlon Race Event Period.

5.2 Triathlon Race Event. The Triathlon Race Event shall be conduct on the Triathlon Course on Saturday and Sunday during the Triathlon Race Event period and shall Agreement between the
City of Malibu and Zuma Foundation Inc.

be held during daylight hours only. The Triathlon Race Event shall be conducted in accordance with the terms and conditions of this Agreement, the City's Road Race Policy and all necessary governmental permits and/or approvals.

5.3 Set-Up, Operation and Dismantling Periods. Zuma Foundation Inc. shall have the use of the Triathlon Facilities during the Triathlon Race Event Period for purposes of setup of the facilities and apparatus associated with the Triathlon Race Event provided, however, that access to the Triathlon Race Course will only be restricted during the time necessary to conduct the Triathlon Race Event. It is anticipated that all facilities and apparatus associated with the Triathlon Race Event will be set up and dismantled during the Race Period. In the event Zuma Foundation Inc. requires additional time to dismantle the facilities and apparatus following the Triathlon Race Event, Zuma Foundation Inc. shall be permitted such additional time beyond the Race Period, so long as Zuma Foundation Inc. has commenced the dismantling during the Race Period and continues to proceed in a diligent manner to complete the dismantling. Zuma Foundation Inc. shall provide the City with a schedule indicating the dates and location of setup and dismantling of the facilities and apparatus associated with the Triathlon Race Event, along with updates and changes thereto, as soon as is reasonably possible after the necessity for such updates and changes become known to Zuma Foundation Inc..

5.4 Clean-up and Restoration. Zuma Foundation Inc. shall be responsible for cleaning up the Race Course and Race Facilities at the end of the Triathlon Race Event. Such clean-up shall include, without limitation, removal of litter and debris from City streets and the Race Facilities.

5.5 Conditions of Race Facilities. Zuma Foundation Inc. shall be responsible for promptly returning the Race Facilities to the condition they were in immediately prior to the Triathlon Race Event, reasonable wear and tear excepted. Zuma Foundation Inc. shall be responsible for repairing any damage to the Race Facilities occurring during the Triathlon Race Event by acts or omissions of Zuma Foundation Inc., its patrons or concessionaires.

5.6 Additional Municipal Services. Zuma Foundation Inc. shall be responsible for the scheduling of and payment for all additional municipal services, as required by the City Temporary Use Permit. In certain circumstances, the City may facilitate the payment for additional municipal services to other federal, state or local governmental agencies. The City’s role in these payments shall only be administrative only (i.e., processing and ensuring the accuracy of the payments) and in no way constitutes the City’s agreement or sign-off on any other services, plans or arrangements provided by other agencies. Thus, the City shall accept no other responsibility other than facilitating the payment and shall have no liability whatsoever from any claims related to Zuma Foundation Inc. and additional municipal services. Zuma Foundation Inc. shall pay the estimated costs and expenses for additional municipal services no later than sixty (60) days prior to the Triathlon Race Event. Zuma Foundation Inc. shall pay any remaining costs for additional municipal services no later than sixty (60) days following the Triathlon Race Event.

5.7 Compliance with Laws and Related Matters. Zuma Foundation Inc., its officers, employees, volunteers, agents, and concessionaires shall comply with all Agreement between the
City of Malibu and Zuma Foundation Inc.

applicable Laws throughout the Term of this Agreement.

5.8 Liability for Expenses. Under no circumstances shall the City be liable for any costs or expenses incurred by Zuma Foundation Inc. in any way related to or connected with the Triathlon Race Event unless specifically provided for in this Agreement.

5.9 Authorizations. Zuma Foundation Inc. shall be responsible for seeking and obtaining any and all permits, licenses, certifications, consents, or other authorizations required from any governmental agency or other public or private entity in order to hold the Triathlon Race Event and perform all other activities in connection therewith.

6.0 GENERAL TERMS.

6.1 Right to Conduct Triathlon Race Event. The City hereby grants to Zuma Foundation Inc. the right to produce and conduct a Triathlon Race Event in accordance with the terms and conditions of this Agreement and City Council Policy No. 47 (Road Race Policy). Zuma Foundation Inc. is responsible for applying for and securing all applicable governmental approvals/permits in a timely manner, prior to conducting any portion of the Triathlon Race Event or performing any setup activity related to the Triathlon Race Event and complying with the City's Road Race Policy. The City and Zuma Foundation Inc. agree that the Triathlon Race Event is one of the two road race events which are entitled to seek a City Temporary Use Permit each calendar year as set forth in the City's Road Race Policy. All discretionary authority of the City with respect to any and all such permits and/or approvals is expressly retained and nothing in this Agreement shall be construed as limiting or expanding the City's discretionary authority in any way, or committing the City to any particular decision or outcome, with respect to any requisite permits or approvals. The City's denial of any discretionary permit necessary to conduct the Triathlon Race Event shall not be deemed a breach of this Agreement, so long as such denial complies with applicable law and regulation. Zuma Foundation Inc. hereby acknowledges that the City has police powers pursuant to applicable Laws to take reasonable and appropriate action in the event the conduct of the Triathlon Race Event, or any portion thereof or activity associated therewith, is endangering the health, safety or welfare of the general public, is violating any applicable law or regulation, or is otherwise creating a public nuisance. The safety of the Triathlon Race Event participants shall be the sole responsibility of Zuma Foundation Inc.

6.2 Concession Rights. The City hereby grants Zuma Foundation Inc. the right to operate, or to license (in whole or in part) to others, the Concessions associated with the Triathlon Race Event during the Race Period. The City agrees not to hereafter extend any Concession rights to any person or entity other than Zuma Foundation Inc. which would permit the operation or licensing of Concessions, or the vending or offering for sale of any goods or services competitive with the Concessions. Notwithstanding the foregoing, this grant of rights to Concessions shall not affect the activities of otherwise properly licensed Malibu merchants and business persons in conducting their trade or business during the Triathlon Race Event, or parties with which it has contracted to provide Concessions at any City-owned property or facility.

6.3 Ticket Sale Rights and City Rights. The City hereby grants to Zuma Agreement between the
City of Malibu and Zuma Foundation Inc.

Foundation Inc. exclusive Ticket Sale Rights for the Triathlon Race Event.

6.4 Participation. The total number of participants for the Triathlon Race Event shall not exceed: 4,000.

6.5 No Interest in Land. Zuma Foundation Inc. rights pursuant to this Agreement shall not be construed as a lease, easement, or other interest in land, buildings, or other property of the City.

6.6 Donation. Zuma Foundation Inc. agrees to donate not less than $100,000 each year for the term of the Agreement to Malibu youth based community-oriented charitable organizations such as the Boys and Girls Club of Malibu, Parent Teacher Associations for Malibu Public Schools, Malibu youth Athletic Programs, no later than 60 calendar days after the final event date each year. Zuma Foundation Inc. will seek input from the City each year during the term of the Agreement as to the Malibu youth based community-oriented charitable organization(s) who will receive the annual donation.

Zuma Foundation Inc. agrees that it will identify each benefitting non-profit or communityoriented charitable organization’s specific area or areas that said donation will go towards.

This Agreement and all of its terms, conditions, and provisions, is made and entered into for the sole protection and benefit of Zuma Foundation Inc. and the City and not for the benefit of any other individual or entity. No other person has any right of action of any kind based on any provision of this Agreement nor may any other person be deemed to be a third-party beneficiary under this Agreement.

6.7 Exclusivity. The City will not authorize, without Zuma Foundation Inc.’s permission, any Triathlon Race Event, other than the Triathlon Race Event organized and conducted by Zuma Foundation Inc., sixty (60) days before the Triathlon Race Event or sixty (60) days after the Triathlon Race Event throughout the Term of this Agreement.

6.8 Termination. Either the City or Zuma Foundation Inc. may terminate this Agreement, without cause, by giving the other party six (6) months written notice of such termination and the effective date thereof.

6.8.1 If Zuma Foundation Inc. or the City fail to fulfill in a timely and proper manner its obligations under this Agreement, or if Zuma Foundation Inc. or the City violate any of the covenants, agreements, or stipulations of this Agreement, Zuma Foundation Inc. or the City shall have the right to terminate this Agreement by giving written notice to the other party of such termination and specifying the effective date of such termination. Zuma Foundation Inc. shall be entitled to receive compensation in accordance with the terms of this Agreement for any work satisfactorily completed hereunder. Notwithstanding the foregoing, Zuma Foundation Inc. shall not be relieved of liability for damage sustained by virtue of any breach of this Agreement, and any payments due under this Agreement may be withheld to offset anticipated damages.

Agreement between the
City of Malibu and Zuma Foundation Inc.

6.9 Non-Assignability. Zuma Foundation Inc. shall not assign or transfer any interest in this Agreement without the express prior written consent of the City.

6.10 Non-Discrimination. Zuma Foundation Inc. shall not discriminate as to race, creed, gender, color, national origin, or sexual orientation in the performance of its services and duties pursuant to this Agreement, and will comply with all applicable laws, ordinances, and codes of the Federal, State, County and City governments.

6.11 Insurance. The Zuma Foundation Inc. shall submit to the City certificates indicating compliance with the following minimum insurance requirements no less than ten (10) days prior to prior to Triathlon Race Event. The Zuma Foundation Inc. further agrees to comply with all provisions in the attached Exhibit C which is incorporated herein.

6.12 Indemnification. Zuma Foundation Inc. shall indemnify, defend with counsel approved by City, and hold harmless City, its officers, officials, employees, and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys fees, expert fees, and all other costs and fees of litigation) of every nature arising out of or in connection with Zuma Foundation Inc.'s activities related to producing and conducting a Triathlon Race Event hereunder or its failure to comply with any of its obligations contained in this Agreement, regardless of City's passive negligence, but excepting such loss or damage which is caused by the sole active negligence or willful misconduct of the City. Should City in its sole discretion find Zuma Foundation Inc.'s legal counsel unacceptable, then Zuma Foundation Inc. shall reimburse the City its costs of defense, including without limitation reasonable attorney's fees, expert fees and all other costs and fees of litigation. Zuma Foundation Inc. shall promptly pay any final judgment rendered against the City (and its officers, officials, employees, and volunteers) covered by this indemnity obligation. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.

6.13 Compliance with Applicable Law. Zuma Foundation Inc. and the City shall comply with all applicable laws, ordinances, and codes of the federal, state, county, and city governments, including, without limitation, Malibu Municipal Code Chapter 5.36 Minimum Wage.

6.14 Independent Contractor. This Agreement is by and between the City and Zuma Foundation Inc. and is not intended, and shall not be construed, to create the relationship of agency, servant, employee, partnership, joint venture, or association, as between the City and Zuma Foundation Inc..

6.14.1 Zuma Foundation Inc. shall be an independent contractor and shall have no power to incur any debt or obligation for or on behalf of the City. Neither the City nor any of its officers or employees shall have any control over the conduct of Zuma Foundation Inc., or any of Zuma Foundation Inc.'s employees, except as herein set forth, and Zuma Foundation Inc. expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees are in any manner employees of the City, it being distinctly understood that Agreement between the
City of Malibu and Zuma Foundation Inc.

Zuma Foundation Inc. is and shall at all times remain to the City a wholly independent contractor and Zuma Foundation Inc.'s obligations to the City are solely such as are prescribed by this Agreement.

6.14.2 Zuma Foundation Inc. shall not use the City Seal or present the Triathlon Race Event as a City-organized event without prior approval from the City.

6.15 Legal Construction.

6.15.1 This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed under the laws of the State of California.

6.15.2 This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.

6.15.3 The article and section, captions, and headings herein have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.

6.15.4 Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular shall refer to and include the plural.

6.16 Counterparts. This Agreement may be executed in counterparts and as so executed shall constitute an agreement which shall be binding upon all parties hereto.

6.17 Default. The following shall be deemed events of default ("Default") under this Agreement:

6.17.1 By City. Failure by the City to perform or comply with its obligations or responsibilities hereunder, which is not cured within a reasonable time, but in no event to exceed thirty (30) days following receipt by the City of written notice from Zuma Foundation Inc. specifying with particularity the Default so claimed. The thirty (30) day curative period provided herein may be expanded by so much additional time as is reasonably necessary to cure the Default, provided that the City commences to cure such Default within such thirty (30) day period and thereafter diligently and continuously proceeds to cure the Default.

6.17.2 By Zuma Foundation Inc.. Any one or more of the following shall be deemed a Default by Zuma Foundation Inc.:

6.17.2.1 Failure of Zuma Foundation Inc. to perform or
comply with its obligations or responsibilities hereunder, which is not cured within a reasonable Agreement between the
City of Malibu and Zuma Foundation Inc.

time, but in no event to exceed thirty (30) days following receipt by Zuma Foundation Inc. of written notice from the City specifying with particularity the Default so claimed. The thirty (30) day curative period provided herein may be expanded by so much additional time as is reasonably necessary to cure the Default provided that Zuma Foundation Inc. commences to cure such Default within such thirty (30) day period and thereafter diligently and continuously proceeds to cure the Default.

6.17.2.2 Zuma Foundation Inc. attempts to assign or transfer any interest in this Agreement without the express prior written consent of the City.

6.17.2.3 Zuma Foundation Inc. makes a voluntary assignment for the benefit of its creditors.

6.17.2.4 Zuma Foundation Inc. files a voluntary petition in bankruptcy or becomes the subject of an involuntary petition in bankruptcy which is not discharged within sixty (60) days after the filing of such involuntary petition in bankruptcy.

6.18 Waiver; Remedies Cumulative. Failure by a party to insist upon the performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy. In no event shall either party be liable for any loss of use, loss of time, inconvenience, lost profits or other special, incidental or consequential damages in any way related to or arising from this Agreement or the Triathlon Race Event.

6.19 Mitigation of Damages. In all such situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

6.20 Force Majeure. Each Party shall be excused from performance of its obligations hereunder to the extent such performance has been delayed, hindered or prevented by any cause or causes beyond such Party's reasonable control, which shall include, without limitation, labor disputes, riots, civil commotion or insurrection, war, war-like operations or terrorist acts, invasion, rebellion, military or usurped power, sabotage, governmental restrictions, regulations, or controls, inability to obtain any materials or services, fire or other casualties, natural disasters or acts of God. In the event any Triathlon Race Event Facility or portion thereof is destroyed or substantially damaged at any time during the Term of this Agreement by fire, casualty or other cause, the City shall not be required to repair or rebuild such Triathlon Race Event Facilities or portion thereof. If the RACE Course is unavailable due to circumstances beyond the Agreement between the
City of Malibu and Zuma Foundation Inc.

City's control, the Parties shall mutually agree in writing on a revised RACE Course approved through the City Temporary Use Permit Application Process.

6.21 Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

6.22 Entire Agreement. This Agreement constitutes the whole agreement between the City and Zuma Foundation Inc., and neither party has made any representations to the other except as expressly contained herein. Neither party, in executing or performing this Agreement, is relying upon any statement or information not contained in this Agreement. Any changes or modifications to this Agreement must be made in writing appropriately executed by both the City and Zuma Foundation Inc..

6.23 Notices. Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

City: Steve McClary Zuma Foundation Inc.: Michael Epstein City Manager Executive Director
City of Malibu
23825 Stuart Ranch Road
Zuma Foundation Inc.
30765 Pacific Coast Hwy #331
Malibu, CA 90265-4861 Malibu, CA 90265
TEL (310) 456-2489 x 224 TEL: (818) 419-4231
FAX (310) 456-2760 [email protected]

6.24 Warranty of Authorized Signatories and Acceptance of Facsimile or Electronic Signatures. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. The Parties agree that this Contract, agreements ancillary to this Contract, and related documents to be entered into in connection with this Contract will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
[Signature Page(s) to Follow]

Agreement between the
City of Malibu and Zuma Foundation Inc.

This Agreement is executed on __________________, at Malibu, California, and effective as of ___________________.

CITY OF MALIBU: ___________________________________ STEVE MCCLARY, City Manager ATTEST: ___________________________________ KELSEY PETTIJOHN, City Clerk (seal)
ZUMA FOUNDATION INC.: _______________________________ By: MICHAEL EPSTEIN, Executive Director
APPROVED AS TO FORM: ___________________________________ TREVOR RUSIN, Interim City Attorney

EXHIBIT B
Zuma Foundation Inc.
2024 – 2028 Race Dates
General Logistics Timeline
Set up will start at Zuma Beach on the Monday prior to race weekend, all week of set up will be confined to the beach and parking lots at Zuma Beach County Property.

Taking place on the Saturday of the event weekend, the Zuma Foundation’s Triathlon for Kids will be fully self-contained inside the Zuma Beach parking lot.

Race packets pick up will take place at Zuma Beach on the Saturday afternoon.

Sunday of each year will feature the Malibu Foundation Sprint and Olympic distance events.

Year Race Dates
2024 September 14 – 15
2025 September 13 – 14
2026 September 19 – 20
2027 September 18 – 19
2028 September 16 – 17

EXHIBIT C

INSURANCE LANGUAGE
Without limiting Zuma Foundation Inc.’s indemnification of City, and prior to commencement of work and/or services under this Agreement, Zuma Foundation Inc. shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.

General Liability Insurance. Zuma Foundation Inc. shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.

Automobile Liability Insurance. Zuma Foundation Inc. shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Zuma Foundation Inc. arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than 2,000,000 combined single limit for each accident.

Professional Liability (Errors & Omissions) Insurance. Zuma Foundation Inc. shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Zuma Foundation Inc. agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.

Workers’ Compensation Insurance. Zuma Foundation Inc. shall maintain Workers’ Compensation Insurance (statutory limits) and Employer’s Liability insurance (with limits of at least $1,000,000).

Zuma Foundation Inc. shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.

Umbrella or Excess Liability Insurance. Zuma Foundation Inc. shall obtain and maintain an umbrella liability insurance policy with limits that will provide bodily injury, personal injury, and property damage liability coverage, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason, other than bankruptcy or insolvency of said primary insurer;
• “Pay on behalf of” wording as opposed to “reimbursement”; • Concurrency of effective dates with primary policies.

Should Zuma Foundation Inc. obtain and maintain an excess liability policy, such policy shall be excess over commercial general liability, automobile liability, and employer’s liability policies.

EXHIBIT C
Zuma Foundation Inc.