Environmental Review Board - Regular Meeting

Hi Courtney, it's Clark. I I'm not able to change my name. It's so that people know. I'll change it shortly. Thank you. Thanks, Clark. And thanks Gail for the Zoom. I don't know why mine was not working. Of course. I believe we're still expecting Patrick Kaufman. I don't know. It's good. Good morning. Hey, Courtney. How are you? Good. Hi. How's it going? Hey, good. Long time no see. Yeah. Sorry guys, I'm fiddling around with my computer. Give me one sec. Or let me know. Is Patrick here? No. No. No. No. I don't see him. and Patrick is joining. Um, usually Mondays are Wednesday. Okay, I think you're good to go, Courtney.

Thank you so much. All right, you guys. Sorry I'm we haven't had an ERV meeting in a minute, so I'm just forgetting my whole setup here. Um, all right. Well, thank you everybody for joining on short notice. Um, my name is Courtney and I would like to call to order the Malibu Environmental Review Board meeting of June 25th, 2025. This meeting is being held via teleconference. Boards and city staff are participating from remote locations. Members of the public can participate in the Zoom meeting um via Zoom. Um members of the public wishing to speak during the meeting must click the raise hand button at the bottom of the screen to indicate a desire to speak after the item has been announced by the chair and must be present in the teleconference when called upon to be recognized. Once called upon, please lower your hand in the Zoom meeting. Board members, if you have comments to make during this meeting, please raise your hand using the raise hand link at the bottom of your screen and I will call on you in turn so we can make our discussion clear for the record and for the public. Okay. So, we will go for the agenda. We will go item number one, written and oral communications from staff and the board. I'm seeing none. Is that still the case? None. Okay. We will go item two, old business. Still none. Uh yeah, none. Okay, great. And then we will go um item three, new business. I'm going to pass this off to um Planner Brooks for CDP 23-067. Great. Thank you, Courtney. Um can everybody hear me? Okay. Yes. Perfect. Okay. Can we get the PowerPoint um pulled up? Um, while that's being pulled up, um, I wanted to kind of give some context about why we're here today. Um, it's kind of rare that we come to the

ERB for this type of issue. U, this project, um, has come before the ERB before, you may recall it was almost exactly a year um, today. Well, technically yesterday. Um and when after that project was considered there were a series of recommendations provided um from the ERB on the project um and later that year um in September u of last year the item was scheduled for the planning commission for their consideration. Um when the staff report was published, um staff received written correspondence from the coastal commission um that raised two primary concerns. One of which echoed one of the ERB recommendations regarding citing the proposed um residents closer to PCH and further from the ESHA that's located north um of the site. Um the other comment which is why we're here today is a concern about the drainage feature. Um specifically the coastal commission staff raised a question about whether this drainage feature meets the LIP's definition of a stream. Um I have a slide later in this presentation that includes um the text from the LIP. Um and so after um staff received the um coastal commission's comments u the city biologist then went to the site to kind of do a preliminary assessment of this drainage feature. Um, up until this point there had been um, a series I think at this point there were two biological assessments that were submitted um, for the project for the property and there had been some back and forth between the city biologist and the project biologist regarding the drainage feature. Um, but at that point

it really didn't take into consideration the stream definition, right? And so there was some back and forth and we determined that it may not be a stream um but minimize any impact as much as possible. Um so again after um now realizing we needed to assess this drainage feature under the LI's definition of a stream and the city biologist went out to conduct a site visit. Um she did notice um a bed and bank um at the feature and there was some other vegetation that may you know indicate that it would be a stream and subsequent to the site visit there was a determination that the drainage feature met the LIP's definition of a stream. Um once this definition this determination was made um to the applicant owner um he challenged the definition or challenged the determination. So there was some back and forth about, you know, him not agreeing um us the city uh maintaining that the feature is consistent with the LIP's definition. And rather than have this dispute go any further and have the planning commission kind of weigh through these um issues, we thought it'd be best um for the project to bring it back to the ERB um to you know lay out the evidence provided um by the applicant um as well as the determination um from the city biologist to you know glean a an opinion about what the ERB u believes. um regarding this drainage course. Next slide please. And again depicted here is the facility

map. Um the property is located west of um Point Doom. Next slide please. Depicted here is the GIS um image of the the site um which includes the ESHA overlay um layer depicted here in orange. Um this layer is for the most part consistent with what the project biologist has determined to be the bounds of the ESHA on site. Next slide please. Depicted here are the sight specific um ESHA delineations. Um again there were a couple of assessments done last year. There was an updated assessment um submitted um a couple of months ago and this shows the drainage feature um and the ESHA on site. Next slide please. And just a quick overview um of the proposed project. Um, it does include the construction of a new single family residence just under 4,500 square ft. It includes an attached garage, a pool, driveway, decks, um, heartscaping and associated development. Um, the image depicted here is the current um, location of the structure. I will I meant to add that after receiving the coastal commission's comments and kind of having some back and forth between you know city staff and the project applicant to um you know refine the project to adequately address not only the ERB's original recommendations but also the coastal commission's concern. Um the project has been cited um closer to PCH. Um this um relocation of the building does minimize impacts to ESHA located um north of the prop of the

project. Um the fuel modification for the project does still encroach in the ESHA buffer, but direct impacts to ESHA have been minimized with the revised project. Next slide, please. And again, back in 2024, um the ERB made several recommendations on the project. Um the first of which was related to a reduction of the ESHA impacts. And the recommendations included extending the proposed oak woodland towards the drainage feature um with the idea that extending this oak woodland would help um sustain any riparian um vegetation. There was also a recommendation to minimize the fuel modification um required by the fire department um to minimize direct impacts to ESHA which has been done with the project related to habitat mitigation and restoration. There were a couple of recommendations um again the um to extend the um the oak woodland to the drainage feature. Um I'm sorry. All right. And then back um I'm sorry, the first recommendation related to um the ESHA impacts. Um the recommendation was to consider shifting the structure um closer to the street, which has been done again related to habitat mitigation, extend the oak woodland. And then there was also um a recommendation to provide on-site mitigation in addition to the payment of enlies related to grading and storm water off. there was a recommendation um to ensure the project disturbance area didn't exceed um a threshold and they wanted to there was also a suggestion that we just confirm the grading quantities um proposed for the

project and then related to wildlife protection there was a recommendation to um to to use bird safe glass um to minimize um any harm to song birds or raptors um from bird strikes. Next slide please. So on this slide is the language um that is contained in the LIP um specifically section 2.1 which contains um all the definitions um that we utilize in implementing the local implementation plan. Um this is the context for which the stream determination was made by the city biologist. Um we do acknowledge that um other local, state, and even federal agencies have other definitions of what a stream could be. Uh but under the LIP, we are charged with applying this specific definition. Next slide, please. Um the next um couple of slides include images um that reflect the city biologist um site visit and to support the determination that the drainage does meet the definition of a stream. Um this is just a um a vicinity map showing um the pinpoint drops are where photos were taken um along the drainage feature. Next slide please. And these two images show um the bed and bank that was observed at the project site. Next slide please. And depicted here are the original and updated um projects showing the encroachment um the reduced um encroachment into the ESHA. Again, with the revised project, um it appears that

the fuel modification does not encroach in the mapped ESHA um located north of the site. Um but there would be fuel modification that would encroach in the drainage feature um which has some implications on whether um an approval from the California Department of Fish and Wildlife are required. Um, it also would establish the project's appealability to the California Coastal Commission. Next slide, please. And that does conclude my presentation. I am available for any questions. I believe the applicant team are here as well. Thank you. Thank you so much, Rene. I really appreciate it. Um, let me see. Gail, I'm not seeing any is Arya public? I just want No, that's Rodney. I don't know why it's showing up as Arya. Oh, okay. That's me. That's Rodney. Oh, okay. Apologies. Sorry about that. Um, so Gail, do we want to let the applicant speak and then go into ERB member? Yeah, that sounds about right. I just want to check. Is Parker, are you here? Okay. He's not here. So, I'm gonna take over for a presentation. No, I'm I'm I'm here. He's here. Okay. Okay. All right. So Rodney, um I don't know how many minutes they get. I believe it's uh 15 minutes. I'm gonna have it on my phone. So give me a moment. I'll start it when he starts speaking. Okay. So when the presentation is up, are we ready? Let's get the presentation up. Yeah. Thank you. What's the uh Gail? Is it the PDFs? Yeah. Yeah. He sent over a couple. It was the first one. And that is there a order you would like the PDF

sent? Just the one labeled presentation. Yeah. Oh, got it. Thank you. Hello. Hopefully everybody can hear me. I'm Rodney Ekerman. I'm the um owner um and developer of this home. Um wanted to put a few things in context uh before I move into the presentation. One is when I started this project over two years ago, one of the first things I did after having a preliminary site that took into consideration esh encroachment, took into consideration view corridor, took into consideration grading, other factors as I met with the then head of planning of the city of Malibu, Richard Malikica, um, and met with Courtney to review the plans that I was going to then release my architects and engineers on developing for submitt. I did that and over the next seven months went through a half a dozen different uh submittals and corrections and uh prior to going to the ERB had received all the department approvals. Um after the ERB hearing, I did um reach out to the head the battalion commander in this region to see if we could minimize the zone C 100 to 200 foot ASHA clearance of which I was notified that whereas because I presented to them the 11 closest homes only one cleared to 102 feet uh some as little as 23. And while he said it was unlikely that I would be required to clear greater than 100 feet, uh they

weren't going to remove that uh qualification. Um I also on the habitat that was brought up by the ERB met with the Malibu Forestry who has a planting program for uh oaks and met with them to discuss planting heavily into the area of this drainage and other areas in the Asha. Um I also uh presented to ERB that the grazing and storm water runoff uh pursuant to conditions that were put on by Calrans, our post-development runoff was less than the pre-development runoff. And whereas we had um developed trellis structures and others that would minimize the effect of bird um you know we did not want to go to bird safe glass which was not something other projects apparently were being made to do. So that's the only thing that I did not fully address. Um so first slide. Um, you know, my goal on this new presentation, design a home fully compliant with code requirements to not encroach into Asha. Um, just to point out, it's an 8acre site of which, uh, code allows me to develop an 11,000 foot home and I'm developing a little over 400 40 4,400 ft or less than 40% of the, uh, total area. Uh, next slide. I started off this project uh initial report was Ford Biota um they presented a detailed report addressing the drainage issues plants in the area and establishing the drainage does not qualify as a stream. The city planning report issued in September 2024 supported that finding. Uh Ford Biology to point out has worked with the city extensively for the last 20 plus years has done over 200 wetland and stream delineations in Southern California.

Also I wanted to point out that the adjacent site uh 31558 was approved by city planning June of 2024 and this drainage was not classified as a stream at that moment. I also reached out to Fish and Wildlife um and they gave me a clearance letter subject to not clearing into the ASHA which the current site plan does not. They uh said that this is not listed as a wetland or stream and the their inventory maps and that clearance letter has been supplied. Next slide. Um I spent the better part of um well let's just say a long time trying to figure out why the city was reclassifying this. Um you know as mentioned by Reneica days before the planning year in coastal issued a letter at that time city pulled uh the project saying it could go further from even though they approved it for 15 months in the existing site and stated drainage was bed and bank. Next slide. For the next seven months, the city gave me the only reason was this was they identified bled bed and blank. I requested um for seven months in writing in three different meetings and in phone conversations what were the conditions of a bed and bite. You can't hit a target you don't have people establish. I was never received a response. Also because of the difference in biologist opinions, I requested the the uh city biologist qualifications and experience in stream delineation. Neither of these items were ever furnished to me. Out of frustration, in April of 2025, about six months later, I went to um the governor's office um looking for an appropriate person at Coastal to discuss this with and they set me up with planning manager, statewide planning manager Erin Praer, who stated Coastal

has no definition for bed and bank, but a stream definition would need more parameters than Bed and Bank. I went back to the city, told them about this conversation, and at that moment, the city suddenly said, "Oh, we noticed repairing vegetation," which they had never told me before. Uh about a month later on May 20th, I received an internal email from the city that discussed one repairarian plant found. Um, you know, I could easily argue today, but I don't think I need to, that one plant does not reclassify an area as wetland or stream. there is a rep Raponos versus US uh Anthony Scilio wrote the majority opinion on that at the US Supreme Court that a propundance of evidence is required and there's been other court filings. Um so you know I think you know I could also argue other definitions of string but I don't think we have that issue because this does not meet the city's definition. Uh next slide. So, a few things, you know, one is just I'd like to mention my daughter is a senior environmental scientist with ERM. Um, they have offices in 33 countries. She has consulted me on this. I've not cluded her as a um expert witness or anything else because clearly she has a conflict of interest. Uh but I did reach out to my initial report from Ford Biology. After I received from the city that um they felt this was a scream, I reached out back to Ford and said, "Guys, I want to pay you to go back out, do a very extensive study. Um we have a different opinion here." They went back out. They confirmed their findings. There was no repairarian vegetation, no aquatic life. I then reached out when I couldn't get even a conversation with the city on an explanation to Tony

Bombamp. Um, you know, Tony wrote the Glenn Lucas report that a lot of people um have followed on the Krummer property years ago in the city of Malibu. He's a respected field biologist, wetlands ecologist, regulatory specialist, and he confirmed this as a femeral drainage. Um, I also during the winter, um, a day after some heavy rains in Malibu, went out to the site, took timestamp dated photos, sent those to the city, uh, showing no water at all, therefore continuing to support this ephemeral drainage training. Um, when we, you know, I still couldn't really, I mean, you know, I requested for the applicant at my cost to meet uh, Ford at their site visit to show them what they saw. I then hired um a independent firm who is highly specialized in regulatory activities who are on the phone with us today to perform an additional detailed independent review of the drainage and to give their report and they're on um the uh call or at the meeting this morning uh to discuss their site visit and their findings. Um they have extensive experience as Ford does as well in this area. So Julie or Wade, are you prep able to give your overview? Yeah. Uh, hi everyone. Wade Caffrey here. I'm on the call and can speak on the next slide. Uh, yeah. So, VCS Environmental has been around for almost 30 years. Uh, founded by Julie Bean back in 1996. Um, and I've been with VCS Environmental since 2011. I have a biology background and I'm vice president of the company. Um, I was the one that was at the site uh most recently and I've been doing delineations my whole career. I'm familiar with biological resources, wetland plants, riparian habitats. Um,

so that's just a little background about VCS environmental. Uh, next slide please. So our review of the site initially was with some of the uh documentation provided including the definition of what a stream is and as you all know that definition is quite broad you know what is a bed in a bank that is very subjective term. Uh most of our focus was uh predicated on the riparian vegetation component because that seemed like the more critical element here as to whether or not this should be a stream. It is, it does have, you know, as you showed in those photos, a bed and bank, if you will, because there is some channelization of water. That's a very common um component through um hillsides throughout all of Southern California, not all of which would be considered a stream subject to the ESHA protections. So our understanding was that the riparian vegetation that was noted was the key um component that was then triggering this stream determination warranting the ESHA protections. So on our site visit we were focused uh primarily on riparian habitat looking for that habitat on the site. Um there was mention of the giant wild rye as potentially being a riparian plant. In my experience we've never cataloged that species as a riparian species. it it wouldn't be considered a wetland plant. It it's um facultative upland when you're doing wetland delineations. So if you had, you know, a lot of giant wild rye in a drainage course, that wouldn't be sufficient to call something a wetland. I understand wetlands and riparian are not the same term, but in this case, we're we don't really have a good definition of riparian either. So we're working with um you know, these kind of more subjective definitions of things. But in our experience, we've never classified gi giant wild rye as a

riparian plant. Um, we also did just look for ripar uh wetland indicators, soil uh we we did a soil pit. We looked for any evidence of um hydric soils. There weren't any. Um so our conclusion was that this is just an ephemeral drainage. It didn't support riparian vegetation. It doesn't support wetlands. Um, and you know, if that's the key element that makes it a stream, then it it wouldn't be a stream in this case. Um, and I think that's it for our presentation. Okay. Thank you, uh, Wade. So, just to to wrap up a little bit is, you know, as Ford Biology has pointed out, uh, the giant wild ry is not on the national wetland plant list. It is not in the United States Department of Agricultural Natural Resources Conservative Service List. It is uh defined as something that is rarely found in wetlands. Um it's a drought tolerant plant typically found in coastal sage scrub and chaperel and woodlands. Um, so you know, as I mentioned earlier, there are a lot of other arguments to to make that um are counter to the email that I finally received seven months later. Um, but I don't even think we need to go into those arguments because there's no repairarian vegetation in this site. I have three experts that have testified to this. each has well over hundreds of uh project wetland delineation experience and um I think in this case the city was right in their first um representations um after having com comments with coastal uh I don't think this has in any

way meets coastal's requirements I presented a letter from fish and wildlife that gave um approval that uh They have no jurisdiction and so I'm not sure what else I can do. Um I am incredibly frustrated that this email was not given to me seven months ago because we could have addressed this then. Um that especially after I mean I can document well over a dozen dozen requests. So it is frustrating to have killed all this time but um I think it is um you know undebatable and crystal clear that this should not be defined as a string. Okay, wonderful. Well, thank you guys so much. I really appreciate those presentations. Um, unless there's anything that I'm missing, I think we'll go to the ERB members. Okay. Is there an ERB member that would like to start? Clark. Okay, great. Yeah. So, thank you. Um I I think in in Rena's presentation um I want to acknowledge that both of the primary recommendations were from from this body were acknowledged and um the most important being that the home was moved um further from the ESHA um also did receive and review the the CDFW um letter on that concavity, we'll call it that concavity in that water flows occasionally through. Um, and uh, I also appreciate the um, it was a little out of focus and and and no dimensions required, but I but I do see an intent

to I wouldn't call it oak woodland because it's not continuous canopy. Um, but I appreciate that you've reached out to Malibu Forestry and it sounds like working with them. And I guess this is a question for the applicant. Is that planting plan uh an approved um uh vegetation plan from LA uh LA County Fire? It looked like there was a stamp on it. I was kind of hard to tell on the uh so LA County Fire did um one of our um they did stamp our original plan. I need to go get a new stamp for the existing plans which I think is no problem at all because we've shortened their driveway. We've still met all their fuel mod requirements. So I think that will be easy. Um, I did also reach out to the neighbor because most of the new oak uh the woodland oak planting would be on their property and they are very supportive of that effort. And um, you know, I'm informed that it's a it's a good thing for um habitat, but it's also a very good thing that these oaks u fire. They're a good fire buffer. And so I'm fully committed to that and have had great conversations with Malibu Forestry. Okay. Thank you for doing so. And um I also note from the I think it was in the Ford report or the VCS, I can't remember which one, that there was a recommendation that I think it was the 100 foot um limit be be marked with split rail fence or was that the 200? Um um I believe it's the 200 which is the maximum area we could we could um clear into. We we and the new plan we have no we're not touching a piece of ESHA and not touching the drainage. So I want to be careful about what gets written as recommendations here as opposed to a

discussion. I I would encourage you to continue to work with Malibu Forestry um to create that delineation for future. From this process, you're going to know real real well where where 100 and 200 feet are in your property. You've learned your property well. But for the future, if if LA County Fire would allow it, I would encourage you um and again, I don't I'm not calling this a recommendation, but I encourage you to to negotiate with the county to see if you could make that fence a little shorter by pulling it into the 100. Um worst case that could happen is if you have review on site and they say, "Okay, we want you to thin a little further uphill." Um you could step over that and do that. But but given that the support is Yes, you're right about about oak woodlands in particular, but any irregular vegetation depositing embers, breaking up the wind flow and um you know decreasing the likelihood that all the embers will deposit at your home. Um it would be it it's still the case that um statistically insignificant to modify habitat beyond 100 ft relative to structure survival in a wildfire. So that's supported science. So if you could negotiate that barrier which was recommended, I I would put it up, but I'd see if you could put it at 100 rather than 200. See what the fire department would do. and um and also see what they do possibly um to make it more like an oak woodland. Certainly proximity to that uh drainage feature. Um so it is a little more woodlandike. I can't tell the spacing of

these oaks on the plan. doesn't sound like there is an approved fire plan um uh approved by the fire department, a planting plan, but um it'd be nice if it really could be more like a woodland rather than what kind of to me looks like an oak savannah, right? It's got scattered oak trees. Um and I we we have larger oaks that we are planting in the um in the ESHA buffer the two zero to 200 feet and then we were going to plant smaller oaks in the existing ESHA area selectively plant and that's in the discussions with uh Malibu Forestry. Right. What what I'm talking about is a is a gradient of of if possible um more of a woodland type planning between 100 and 200 zone. Okay. Right. So yeah. So that um personally I' I'd like to see that throughout, but I'm I understand that it's the fire department's call right on this, but it it's not really an oak woodland. It's it's they're oak trees and and that's great. That helps with all of the above. But from a habitat p perspective, you can establish contiguous canopy and that would be allowed particular again as you move towards that feature on the north and east of your property in that in that modification zone. That would be better habitat, right? be it would increase the quality and the likelihood the soils would change and all the other things that come along with an oak woodland as opposed to an oak tree um would would be there be more beneficial. Again, this is a recommendation that you consider uh talking to the working working working these issues in to your discussion with

a fire department and and particularly with Malibu, working with Malibu Forestry because they're foresters and habitat as well as fire safety. So, that's a good place to be and they'll give you free trees. The last question I have is for Can I I need to jump in for a sec. Um because that was a little unclear. Clark, you started with saying it wasn't a recommendation and now it is a recommendation. Well, I I re I re recommend that the owner continue to work on refining their plan with LA County Fire as they work to achieve a um a stamp, right, an approved an approved mitigation plan. Um, and but I am also acknowledging first of all the big move that took care of a lot of the problems by by moving the house down. But but also wanted to recommend that you in working with them consider the difference between beyond 100 ft and and within 100 ft of the house. I can't be any more specific than that because it you can't design in these calls, right? But it's basically like he's finishing the design and and you know and so recommend continuing to work with Malibu Forestry on that design. We'll do I think it's a reasonable recommendation and they're they've been great to work with. He's offered to meet me on site at the appropriate time and the other thing we're doing Rob's office run. Yeah. Yeah. And so this because this area is actually um you know area that's been continually fire cleared um up to not up to the esha but in that direction. We've actually talked about doing a um a low growth natural habitat so that any fire clearing above the house is minimal. It's selective. Yeah.

U easier to maintain a more I think a better look. Yeah. um as part of the development plan. So, yeah, and that's true. And and and I'm glad you've seen that you're continuing to learn and and work as a responsible um home home builder um for yourself. And yeah, it I I also agree it'll add it add value to your property have a good rather than the fine flashy fuels because what happens with a clearance is that you have less fuel but you have easier ignition from embers, right? So the heavier vegetation, oak woodland's great if you can get it. Um but anything heavier than uh invasive grasslands that result from overclearing is going to be beneficial from an ignition reduction perspective. So good continue to work with Rob. My question is now when when that oak this is this isformational for staff. Um when that plan is approved will it come with um monitoring uh that goes with the property? Right. meaning not that that the oaks that are planted don't just die and okay, we planted them and we documented that they were in and a year later they don't exist, right? Like is there anything in the the typical process that ensures that this owner and potentially future, right, something happens, you know, daughter wants to move, has grandkids, whatever, you know, there's a new owner in a few years. Can is there a way to to assure that to the extent these are mitigations um that's the right term that they will reach maturity they'll be that that the trees shown or replacement trees if

something happens will be there in x years like you know like in the county right you have the seven-year kind of um verification point Rica do you want to take that um yeah So, we do have a standard condition of approval that generally requires um annual um reporting um for five years. Um I don't know if you're thinking more is needed beyond that, but typically No, no. Whatever. I just wanted to make sure that there was some standard I wasn't familiar and you've told me in five years is is is better than five months. So, yes, correct. Yeah. I just wanted to make sure that it's not just a drawing, right? that it actually will be a developed piece of the property just as much as the home will be. That's all. Yeah. Okay. I was just about to say Okay. Thank you, Clark. I appreciate those uh recommendations. Um do just to clarify um did you have a specific opinion about the drainage feature? I know you kind of I did read I I read the fish in and wild. I think that impacts to the drainage, whatever it's called or whatever you determine it to be, um, are are well mitigated by moving the home. So that the 100 foot is well beyond what would be bank if it were a stream with a bank, right? that where it becomes convex that um or sorry concave. Um and that my comment regarding working with uh with Rob Walton at Malibu Forestry in LA County to to pay particular attention to um oak woodland in the in the proximity to that drainage feature that that

covers it. basically whether or not it's it's a it's a stream or not, it appears to me that CDFW does not feel it is and that was a formal review. So, um that's fine. But even if it were um the mitigation recommendations would be similar which is to you know do restoration in proximity to that feature uh do enhancement I would call it enhancement um which which I think is yeah is what's being worked towards it's hard because we don't you know ultimately it's the stamp fuel mod plan and landscape plan that determines what they're going to do. So all I can recommend is that you get that uh and and work with the resources you are working with um now speaking to the owner to to make sure it's the best plan it can be from a habitat perspective. So um as was mentioned in the presentation, we've been flushing through this issue for a series of months. Um, we did receive the letter from Fish and Wildlife. Um, and you know, I ended up having a conversation, you know, with their staff just to be clear about the context of the letter. Um, the letter only addressed the sighting of the house. um it did not consider any um proposed any required fuel modification and so it was a clearance in a way but didn't really take into account the entire project scope which included the fuel modification and so I just wanted to make sure that we were clear about the context of the correspondence I understand again um two things for me and this is this is opinion uh supported by our read at the RCD of of the science once that house is moved so that the 100 ft

and and almost the 200 foot at least to the center line of the stream that that essentially in my mind that second 100 ft is an additional buffer because it should not be it the habitat nothing no reduction of habitat in in our view should happen beyond 100 feet. It's just not justified by the fire behavior science. And actually, as was noted, you know, adding varied topograph topography of plants, if you will, um trees, oak woodlands, even continuous canopy, particularly continuous canopy, oak woodlands would be beneficial from a fire perspective and and mitigate um well, it would enhance the habitat in the area. that's clearly the best, most varied um uh densest vegetation on the site. So whether it's a stream or not, it's really good habitat there. And not that it's bad habitat elsewhere, but it's it's that's a feature that has greater wildlife potential in it. And it' be nice if there was more of it. And that's really what my comments are about is work towards towards enhancing um the oak woodland and and other understory conditions or appropriate bank conditions with with LA County fire to get your fuel mod also to be um a habitat enhancement which I think it can be and that seems to be the intent. Reneek, I think it's important for clarification because I've spoken with California Fish and Wildlife on numerous occasions. Now that we are greater than 200 feet from the drainage feature, we would never touch the drainage feature because fuel mod would has a maximum clearance

of 200 feet. And therefore, that one caveat within the fish and wildlife clearance is no longer an issue. Yeah, but but Rodney, in fairness, that it wouldn't be the center line of the stream. If it were a stream, it'd be the whole bank, right? And and the bank then would go all the way up until it levels off and bank determination would be a thing. But CDFW says there is no stream, right, to edit the bank. So, I want to go back and remind you again. You keep talking about 200. I keep talking about 100. Yeah. And this is my this is my soapbox opportunity. Um, put the fence at 100 and don't allow a future owner who hasn't been through all the hard work you've been through to get to this home to screw up and diminish the habitat value because they can. This is the problem. And you're right, the fire battalion chief will never say it can't be up to 200 because that's that's what that's what the regulations say. It could be they could ask you to go to 200. Rob and Ron, you know, use their names. Their particular people in LA County Fire would would not ask you to do that. I'm confident they wouldn't, but it's the homeowner that comes next. So, please um see if you can um follow through on that recommendation from your ecologist that that the um habitat be the the should be protected, but protect its buffer is what I'm saying. So the Escher really now has a 100 foot buffer in my mind from 100 feet out um to 200. And if you put the fence at 100, it prevents the next owner from saying, "Why don't I just keep going up the hill? I'll be safe." Because that's that's the word on the street. Generally, we're we're working on that. You you got the message that that

doesn't make you safer, but the next owner may not. Okay, Reneica, do you have any other questions or do you want me to speak to the other ERB members? Yeah, I was Yeah, I was just looking to get a clarifying comment um regarding the stream determination as the primary reason why we're here today, but I I think I have what I need so far. Yeah, Rene, I'm responding to the documents that were provided. Yeah, I know that's the reason that's the history and I I also heard the owner talk a lot about the history, but honestly, he had me at your first site plan. Yeah. Where the house got moved. Thank you. Yeah, I agree. It's a great a great compromise. Yeah. And it required work, so I appreciate that. Yeah. Okay. All right. So, I think we'll then move on to Patrick or Marne. Either one. Whoever would like to go next. Yeah, sure. I'll go next. So, we're we're just making a determination as to whether this meets the definition of stream, right? Yes. Unless there's other um recommendations um that you'd like to make on the modified project. Yeah. I'll I'll stick just to that focus point for this. Um just to clarify with any of the fish and wildlife approvals at this point, they have made an opinion as to whether it's a stream or not. Can you clarify that? No. They made an opinion about if a stream bed alteration agreement was required based on the location of the house but does not take into account the required fuel modification. But they but they do they did say that they do not show this classified as a stream. California Fish and Wildlife do not have this drainage area classified as a stream. They have a very specific

mapping of everything they've classified as a stream and this is not classified as a stream. Right? But I think because of the way in which the local implementation plan um is written, the determination is made with the local jurisdiction based on whatever whatever qualifying factors. In this case, it's our broad definition of what a stream is. Um, and then based on that determination, other requirements go into effect, including any type of clearance or approval from Fish and Wildlife. Well, it's my understanding, and this is from Aaron Praer, who's the state director uh for Coastal, is it is absolutely a city determination unless the applicant chooses to appeal to Coastal. So, and clearly from a state perspective and if you read the Glenn Lucas report on the Crummer property, um there's a lot of discussion about various jurisdictions and ultimate authorities and um what I think what's important to note here is California Fish and Wildlife, US Fish and Wildlife Core of Engineers, none of these entities who are regulatory entities on these type of issues. state that this is a stream in any of their mapping. And in addition to that, not that we have repairarian plants because I have three different bi highly qualified biologists saying there are none, but if we had one as cited, that would not re justify reclassifying this as stream or wetland. I think those are very important points because they can all be argued, but I don't think we need to because it doesn't meet the citystream definition. Okay. So, Rodney, we really appreciate that information and and you had those 15 minutes and Patrick, hopefully that gave you some clarity. Um, it does. Yeah. Thank you. Okay. Okay. Yeah, I

think that was important to form my opinion here. Okay. And we're only assessing the definition of stream right at that point that we were looking at on the map, right? and where the photos were provided, not so much the the continuing drainage course ascending up the slope because I'm I'm just I'm just looking at the city's definition and I want to make sure I'm super clear just on where I'm assessing this. Yeah, I appreciate that. Um and you know because there wasn't a formal investigation for the entire stretch of the drainage um course and honestly we're specifically here because of a project right and so we're looking at any portion of that drainage course that's within I guess technically 300 ft of the residence assuming the full 200 foot fuel modification and the 100 foot um stream buffer. Yeah, because looking at the definition, I think the repairarian vegetation component is important. And I, you know, it's always tough to gauge what people were thinking when they they wrote these definitions, but I would have to assume that they intended that to be a key component of the definition of stream because just looking at this in kind of two uh lenses, there's the topographic feature that at least periodically conveys water through a bed or channel having banks. And I think for the upstream component it this broadly would meet that definition. But to the uh evidence the biologist has provided I'm not sure if it would meet the second part of that definition uh for having repairarian vegetation.

That's beyond me to really comment on but I I would trust their expertise on this given all the background they provided. So what I'm struggling with is moving on in the Malibu LIIP. You know, like I said, I think that repairarian vegetation was important and and how they define this, but I'm going to contradict myself here because when in 4.6.1 6.1 when it talks about the development standards near a stream it says when repairarian vegetation is not present the buffer shall be measured from the outer edge of the bank of the stream. So it like I said it kind of contradicts what I'm saying and I'm I haven't made a determination yet just kind of talking out loud and meant for this to be more of a discussion. Um, and I'd appreciate some input too maybe from the other ERB members just because this this seems to be a very broad definition. We're trying to, you know, interpret what they were initially thinking when uh they wrote this. But um, looking at the photos from just a civil engineering lens, I would say it's more of just an erosion goalie and not a stream as they intended that definition to be. But because the definition in the in the LI is so broad and that's the only thing we're making a determination on, I'm um I'm just not quite sure how I would vote, if you will. That's okay. That was Yeah, I don't Well, I don't know. Rene, is it Yeah, it's not okay. like I'm I'm going to make ultimately a determination, but maybe like you know because of some of the expertise on the other people on the ERB, you know, this is kind of an an open-ended thing, maybe it's more beneficial if it is kind of a a discussion so we can all

give our opinion. Yeah. And I really appreciate um your approach to that. Um it would be great to have a discussion about it. Um it also highlights why we've been having some difficulty around this issue because just like you just identified um in the development standards related to development adjacent to a stream, it seems to focus on the bed and bank and if there's habitat with the stream then of course you would take your buffer from the edge of the the drip line of the riparian habitat. Um, so I don't know if anybody any other ERB members have comments or additional things to add to this discussion. It would be really helpful. Maybe Marne. I like to pick on Marne. Thank you. I appreciate that. I was almost going to do it. But I can't help you in this regard. This is not my field of expertise. It does seem to me that in this case we're talking about at best an ephemeral drainage and that they the the relocation of this house has really addressed almost all the concerns that we had and I think they've done the very best they can as far as the fine definitions of these different features. There is always room for interpretation. That is the problem with the LCP as we all know. But I just want I I agree with what Clark had to say about the fuel mod. I do think it would be very helpful to us and I've said this before if we were looking at approved stamped fuel mod plans when we review a project because someone can say I talked to Rob or I talked to Ron. These are

individuals who may or may not stay in their jobs for eternity and we need to have a stamp on a plan. And the the plans are generally reviewed by the LA County Fire Department fuel mod unit in ASUSA, not the nursery on Malibu Canyon Road. So you need that stamp on the plan. And and I also agree with Clark that that second 100 ft is a thinning zone, not a clearing zone. And that's pretty clear in the notes in the fuel mod notes that go on those plans that get stamped. So it would really be helpful to have stamp plans and not just, you know, a conversation related to us that has taken place. And those are my comments. Wonderful. See, I picked on you because you provide wonderful content, Marne. Courtney, well, let me let you finish. I'd like to make some closing comments on a couple of these issues at the end, but we when you're done, uh, yeah, Rodney, so yeah, we'll give you time at the end, but I I need to wrap this up. No problem. Chair of the Environmental Revenue Board. Thank you so much. Um, so Patrick, does that assist you? Yeah, I think I'm I'm leaning strictly on the definition in section 2.1. You know, although there's more broad interpretation later on in the the LIP, I think in in my interpretation, the repairarian component is important. And this is more of an ephemeral drainage course as opposed to what the intended definition of stream would be.

Okay, wonderful. Let me hold on one second. Okay, so I wanted to give the ERB members one more chance. If anybody else has any comments, we appreciate you guys coming to this ERB meeting because um I think this will help Renea uh with the eventual planning commission hearing. Correct. Yes. Um Gail, I saw your hand raised. Sorry. I uh I just wanted to help the record maybe a little bit. So for Patrick Kaufman, it's your opinion. This is not a stream for the LP definition. And then Marne and Clark Stevens, uh, you did not give a opinion or you did. Marne did. Marne did that. It's not a stream, right? Marne. Yes. Okay. Marty said it's not a stream. And Clark, did you give an official opinion or decline? say I would say for the purpose of this project as cited um I would not treat that drainage as a stream. Okay. So that's three uh opinions not a stream. Okay. Thank you. Thank you G. That does make it clear. Yeah. Okay. So Rodney if your comments are brief. They are. They are. So I I'd like to first off thank everybody for you know uh taking your time to have this meeting uh on the fuel mod. I think it's it's critical for me to get a termination on the drainage determination on the drainage to finalize plans and then we will immediately submit to fuel mod and they usually come back with a stamp in a couple of weeks and I think the fact they stamp the prior site this will be easy for them to do uh based on my

conversations with my landscape architect who handles that portion of the project. Um the other thing is the stream language in the um the Malibu LIP. Um it's been discussed with me that that language differs because if it's determined that this is a stream and then is there an area that does not have repairarian vegetation, then you would measure in that area from the bank. but you have to first make a determination that it's a stream and has repairarian vegetation. Um, I would also point out that the city may want to try to clarify that language. And if you go back and read the Glenn Lucas report on the Crummer property that I think was probably 15 years ago now that a lot of the biologists I understand refer to when they're looking at sites. Uh, you'll find that it discusses many of these issues. And last, I would state that Coastal definitely stated that a stream definition would require more than Been Bank. And they pointed me to the three parameters that they use, which I'm sure Wayade could comment on. I believe they were repairing vegetation, aquatic vegetation, and some type of soils. I don't really understand but um so but my whole project is held up by the stream designation because it really makes the buffer 300 feet versus 200 which is very problematic. So, I've got to get a definition on that. And at that point in time, I can finish these plans. And I believe the way we've cited it as for zero, no height, less than 40% of allowable square footage, no grading variance, um, you know, drainage, postdevelopment, less than pre-development as far as runoff. I think we've clearly addressed every issue. Um, we have one outstanding

issue that I've discussed with um, Reneica, which is do we have to have a setback from the neighbor's driveway easement? And um, in any case, we wouldn't move further away from PCH and encroach on buffer to accomplish that. But I I think we've kind of determined that we don't have to accomplish that. Um, that the the easement's dead in, it'll never be a public road, etc. But that would be the only thing that would affect a potential variance that I'm aware of. So hopefully with these recommendations, we can take and the the multiple biologists that I've gotten opinions from, we can take a look at this uh designation of the drainage and and once we have that, I think I'd move this very quickly. Thank you everybody. I see Clark's hand raised. Sorry I if that's closing comments. I it's not that important and I don't want to throw a bomb, but I was curious about the vi the violation that was mentioned. I don't recall that from the first time because that to me suggests mitigations and stuff and it wasn't mentioned. So it this this was a just for clarification. Hold on one hold on. Okay. So So there is a violation for the property for clearing ESHA. I believe it was it was in the packet for the first DRB meeting and um that is it's an it's a code violation. It is an open code violation. Um and there will be mitigation. Okay. For that cleared ESHA. Thank you. Correct. Re that is correct. Yeah. I've signed an agreement with Rodney. I'm sorry. Hold on. Hold on. Yes. That is you have yes you have done yeah mitigation um and and that will be fully you know

fully followed through but if you have comments on it no no that's that's all I did yeah no no no we're good if Clark has any comments on it no it's similar to what Marne brought up it's it's we're we're having to act on good faith, you know, ex expecting good faith of the applicant to follow through on recommendations and mitigations. We understand that there's a process for reviewing that and verifying that. So, I think that's fine. It's um you know that the the the advantages are in the details and we have no detail on the plan and that could I mean honestly it could become more of a a riparian uh situation. He could create a stream if he did it right almost. Um where there there isn't currently one according to this project's definition. Um, but it's it's again it's it's it's hard because we're saying please do a good job going forward. We won't see you again, but we'll see your project built someday as we're driving down PCH. Yes. So, so there are pretty specific mitigation requirements housed within chapter 4 of the LIP. It doesn't uh give us a lot of direction on ESHA that was cleared that is not a part of development. Right? So, it was cleared prior to development. Um and so it it also you know we would like to see similar habitat that was taken out planted etc etc. The five years that Reneica mentioned earlier is is correct. We we asked for restoration and certain success criteria to be met within those five years. And so um you know for example I just reviewed a restoration plan that uh was in its fifth year and they hadn't met the success criteria.

the biologist recommended an additional year of monitoring and efforts and I agreed with said biologist to implement an additional year. So there there are certainly um requirements housed within the LIP that will be met with that clearance. Um yeah so and and the plans will be reviewed thoroughly and those are not subject to being overturned by a fire official. in the process of creating a final plan. That that's that's where the concern is is that right because life safety I'm quoting life safety because statistically there's no life safety issue beyond 100 feet. There is however potentially for firefighters standing there so I don't want to want to acknowledge them. That being said, it it it it's kind of like when push comes to shove, the fire department's the designer, and that's the concern. I have all these recommendations and and you know, I think the intent of the owner um have every reason to believe. Um but again, as as Marty pointed out, it's it, you know, it's Sierra Madre or wherever that that you know, reviewer is housed. Yeah. Yeah. So, can I point out one thing? So, the recommendation was this was a burnout area and was to not touch it, to let it regrow, Rodney. I mean, that's the that's the opinion of your biologist. No, no, that was what was in that was what was in the September document that was going to planning unless the city's taking a change of position. So, I had an agreement with Santa Monica Conservatory to pay a fee, which is one of the resolutions in the city. That's perfectly fine. You can So, there's a full resolution on that. I just wanted to be clear on that. Sorry. Yeah. This is really not Rodney.

It this was the bigger issue that we keep revisiting for the process. Got which is that it makes it difficult for us to know what what actually is the plan that's being approved or or not in our case we're not approving our recommendations to the planning approval entity it I don't know you know we're hoping for the best and thank you for those um additional comments Clark because I also in kind of grappling with you know the multiple layers of um concerned about this, you know, um stream definition and and really just assessing what are the potential impacts to ESHA. I also had a conversation with the fire department, specifically the fuel modification unit. Um, and this was in a in an effort to understand the owner's um effort to record a deep restriction, a de restriction um that would limit um the fuel modification buffer from the home. Um there have been multiple attempts on multiple projects to get modified fuel modification plans approved by the fire department, but according to them, life safety is the most paramount issue or concern that they have. And if the fire code u allows them to clear up to or thin up to 200 ft, that's what they're going to do. And so, you know, as we're reviewing these applications, particularly that those that would potentially impact ESHA, we we tend to consider what the fire department could require, right? So, we can have a few modifications as you well as you well should. I I I agree that that's the case. And that's why I like seeing a plan that has oaks in the area that would otherwise be thinned. Yeah. It's pretty hard to thin an oak, right? It's

like thinning, whatever that may be, um, is not well defined as practice. It ends up being bladed weed, you know, weed removal and sometimes disckked like, so it's just, you know, this is the problem. It then falls to the to the to the landowner to do this and they do the interpretation, not the fire department after the fact. So again, already repeated, put the fence at 100 uh if if if you can um and and plant things beyond 100 ft and particularly towards the drainage that are not thinnable. Martin, I see your hand raised. Yes. So I just have one more thing to say. You fuel mod does require and can require thinning up to 200 ft, but they do take a look at slope gradient and many other factors. So when you have a project like this, you can get pretty specific on those plans and sometimes get some relief from standard setbacks. So, not they're not going to say you don't have to potentially sin within 200 f feet, but how you do that, how you manage that can be pretty specifically determined on a plan. And the more specific the plan when you're trying to protect resources, it it's very important because in the future, the local stations are going to be enforcing these plans and they're not they're not biologists. I mean, they're not and they're not involved in in landscape and in habitat protection. So, it's really critical when that is a big factor to have that be as specifically

approved as possible. And again, since it's justformational, uh, at this point, um, the prior plan that was approved was not specific in a way that Marne is talking about and it wasn't as good as it could be. So just for you know for the the owner's benefit um you know uh you're working with the right people it can be better than it was. We can clearly make those modifications to the plans and u you know put on suggestive clearance etc. As I mentioned, my son-in-law is a fireman in Malibu, and he put me in touch with the battalion commander who basically said, "We will work with you as we do with other neighbors, but we can't remove that stamp that allows us to potentially have you fully clear 100 to 200." We could talk offline. That's not a reassuring comment, but but let's just let's just take it from there because that's exactly the problem. I so and so said this and then I heard it and whispered down the lane and before you know it the habitat's gone. And I talked to Walton about it as well and he said you know 10 years ago we would have given you a variance on this project but with the fire problems that we're just not going to change that stamp. So again, design it. Design it and label it more carefully than the original one was dimension locate particularly where those oaks like it's make a real plan not just okay I agree that that meets the minimum standard because that plan will be the defense the Habitat has against the future battalion chief or your son-in-law or whoever. Right. Sorry. There we go.

Okay, Rene, did you have anything else or if that concludes? Um, yes. I just want to thank everyone again for their um insight on the stream issue um that we've been um reviewing for this project. Um the city biologist determination is going to remain based on what the LIP says. Um but what this does allow is for a full um u description of the issue and the planning commission's um consideration of the project and they will make the final determination about the stream and the project's appealability to the California Coastal Commission. So Reneica, do I design to no stream, which is how I've designed, or do I design with to a stream, which means I have to completely redesign? This is critical because at this point in time, I have three highly qualified biologists. I have one repairarian plant that's not a repairarian plant that can be argued at different levels. I will either appeal to city council, appeal to coastal or appeal to courts because you have one opinion with one plant going against every other opinion including your three ARB members and it doesn't allow me to move my project forward because if this is a string I have to redesign the project entirely. I have to put it in a 10,000 square foot envelope. I have to make other material changes when I have basically sacrificed my ocean views to move 200 feet from the escher and I think reinforcing me on not it's not a stream is going to be fish and wildlife three erb members three highly qualified experts in delineation

the coastal commission I think all of those parties are going to be on my side and I don't know why you've dug your feet in so hard on this. So, I'll wait to hear back from you, but that will be my course of action because I can't move the project forward otherwise. And it's not an attempt to dig anyone's heels into anything. Um, we're charged with implementing the LCP as it's written, which I I will also admit that there are areas that are extremely broad and make it difficult um for staff um to let's get legal involved to make an interpretation on the language because if you go and read the Glen Lucas Crummer report, it points out exactly this that the city needs to update it because it is vague. You can't hit a standard that can't be defined and established. So I am just telling you my next course of action is either to redesign which I'm not going to do given if I would have had if VCS would have come back and said no you're wrong Rodney your prior biologist is wrong but I keep spending all this money seven months it took for the city to tell me about one repairarian plant that everybody says is not a repairarian plant. It's a drought tolerant plant. Courtney, can you speak to that? Why you think it's a while I'm simply the ch my hat today is the chair of the environmental review board unfortunately. So I'm sorry Rodney. Um I I have to remain the chair of the environmental review board. But see I'm not even a for due process. We have accomplished I believe the goal of this envir environmental review board. And so I believe that the conversation that's happening now at this point um is is truly needs to happen offline unless someone wants to okay that so um I'm just responding to Reneica telling me

it's still because I can't design around Rodney I understand um so so I I I I understand everything that you're saying but we we have accomplished the goals of the ERB meeting today um I I believe and so um I I do think that that is the conclusion of this unless Rene would like to correct me. Um I think that these conversations need to happen offline. Okay. Yeah. I don't think there's anything else for the ERB, but I do have an idea about what the potential next step would be um regarding the appealability. So, we'll take this conversation offline. Okay. Okay. Everybody really appreciate your time today um and thank you so much. And um ERB members, we'll let you know if there's a meeting in July. Wow. July. Okay. And then I just wanted to give a reminder if anybody wants to submit any other written comments, please do so before the end of the week and it can be included in the record. Thank you so much, Gail. Okay. Thank you. Thank you everybody. Thank you very much. Thank you.