Malibu Zoning Feud Seals Family in Nightmare

Calvin Barginear looks out across the 36 acres of spectacular Malibu land into which he has poured his life for the past decade and speaks, in disbelief, about the nightmare it has become.

Locked for seven years in a complex zoning battle with the county, the soft-spoken former owner of Malibu Auto Supplies can neither sell the land he bought in 1976 nor hang onto it.

In a drawer at the Barginear home in Agoura, a foreclosure notice warns that soon he will lose the land if he cannot come up with a $350,000 payment on a $1-million debt incurred to finance his fight.

Three weeks ago, the Barginears filed suit against the county asking a judge to approve a subdivision map that allows them to create 24 lots on their land instead of the 12 lots tentatively approved in 1980 by the county Regional Planning Commission.

‘Unable to Go On’

The Barginears have already lost their once-thriving 15-year-old business. Sales fell off as their fight occupied more and more time, and, for the first time in their lives, they could not meet the rent on their store.

Last month, Barginear, his wife, Barbara, and one of their three children, Gene, dejectedly packed up the inventory and hauled it to a storage yard.

“Just unable to go on with it anymore,” Barbara Barginear said, weeping.

Theirs is a tale of broken promises, bureaucratic red tape, the changing politics of the county and California Coastal Commission and of a family that stubbornly and, some say, ill-advisedly, refused to give up.

‘One of These Nightmares’

“It’s one of these nightmares, a classic example of someone who has been hurt by this whole coastal planning process, and there may be other examples of it,” said Peter Ireland, an aide to county Supervisor Deane Dana, who has tried to find a solution to the case.

It began in early 1980, when the county Regional Planning Commission gave the Barginears tentative approval for a 12-lot subdivision on their emerald-green parcel of land that rises above Latigo Canyon Road. They planned to build a family home there and sell off the other 11 lots.

Jubilant, the family talked of little else. Calvin and Barbara, sweethearts since high school, excitedly sat down with an architect at their kitchen table, making drawings of their dream home.

But what should have been a routine final approval was never granted by the county because the Coastal Commission refused to grant the Barginears a permit for 12 lots.

The family was caught in a Catch-22. Without a coastal permit, the county would not approve the project. And the Coastal Commission would not grant the permit because the county had recently changed its plans for Malibu, and the new plans did not allow a 12-lot subdivision.

County planners, engrossed in a master planning effort for all of Malibu, had not included the Barginear’s subdivision--and several other projects--on critical land-use documents approved by the county late in 1980. In foothill areas such as Latigo Canyon Road, the county was proposing far lower housing densities.

Relying upon those proposed reductions, the Coastal Commission in 1981 refused to permit more than four lots on Barginear’s 36 acres unless the county changed its documents to allow the dozen lots.

Ralph Faust, chief counsel for the Coastal Commission, said his agency “takes the information submitted to it at face value,” regardless of the desires of the county.

County officials said they failed to include the subdivision because they mistakenly assumed that the Coastal Commission would honor the State Map Act, which protected a smattering of already-approved projects, including the Barginears’, whether or not they appeared on land-use documents.

“Because he had a tentative approval,” Barginear should have been given a final approval that reflected the 12 lots he was given,” Ireland said of Dana’s office. “But when he went to the Coastal Commission, he was told, ‘No.’ He was a victim of dual planning requirements.”

Barginear and his attorney at the time, Charles Greenberg, say they were assured by a former aide to Dana that the 12 lots would be included in corrections and revisions in the land-use documents a few months later.

However, when the revisions were made, the Barginears’ file was mislaid, and the opportunity was lost, Greenberg said.

Despite that snafu, county planners assured Barginear that the project would be protected by a “grandfather” law safeguarding previously approved subdivisions.

“We believed in grandfathering and we still do, because there are a minimal number of projects affected by it,” said county planner Bob Hoie, who tried to help the Barginear’s save their 12-lot subdivision. “The grandfathered projects really would have had very little effect on Malibu.”

However, the slow-growth wave was cresting in Malibu. Some coastal commissioners and environmentalists saw grandfathering as a potential loophole that could allow the coast to be overrun by developers with blueprints in hand.

Hoping to persuade the commission to approve the subdivision, county planners in 1982 drafted a letter, saying the Barginears’ 12 lots were left off county zoning documents because of an oversight but should be approved under grandfathering laws.

The letter was never sent. Informed about the letter, the commission staff sent word that it would do no good. Again, the Coastal Commission said it would not act unless the 12 lots were shown in the county’s land-use plan.

“We were prepared to send that letter out of sympathy to Barginear’s plight,” said John Schwarze, the county’s zoning administrator. “But by that time we didn’t think it would accomplish anything.”

Faust, the commission’s chief counsel, said that in cases where a land-use plan restricts a project that a county supports, it is “common procedure” for the county to request an amendment to its own plan.

And, in fact, Barginear did ask the county more than once to seek an amendment on his behalf.

But, county planner Hoie said, the county supervisors and coastal commissioners had come to view amendments “as a no-go.”

“Developers, lots of newcomers, were popping out of the woodwork looking for plan amendments as a shortcut to the formal process,” he said.

Numerous projects, thrown into limbo during the same period, eventually were abandoned. However, county officials say they believe there are a handful of landowners like the Barginears who still hope to build their original projects.

The Barginears took the only two routes open to them--seeking grandfather protection for the project or an amendment to the land-use plan--Hoie said, “but both doors were closed.”

After years of promises that he would get his dozen lots, Calvin Barginear said, county planners began suggesting that he settle for four, or perhaps try for six.

“From there on out it was one cock-and-bull story after another from the county, one disappointment after another, and I did not know what to say to my family,” Barginear said.

SH Longtime Residents

The Barginears were longtime residents of Malibu who had worked long hours to make a success of a tow-truck business and gas station they operated before they bought the land. Barbara, 50, worked side by side with Calvin, 52, pumping gas or driving the tow truck when things got busy.

Barbara says she remembers teaching her children, “Always reach for what you believe in and don’t give up.”

But, said Calvin Barginear, “looking back, if I had known this thing could be dragged out this long, I would have stepped out of it, would have said, ‘You mean 10 years of my life?’ ”

One county planner, who asked not to be named, said Barginear “helped pull the wool over his own eyes. It became apparent to us that the Coastal Commission wouldn’t bend, and we tried to tell Cal, but he wouldn’t listen.”

But Greenberg says the county owed it to Barginear to fight it out with the commission, despite the political pressures.

“Those same people now will just say, ‘Well, you can’t make an omelet without breaking a few eggs, but isn’t it a shame that a nice guy like Cal Barginear is one of the eggs, tsh, tsh?’ ” Greenberg said. “Frankly I think that’s a pretty terrible philosophy.”

‘Nobody Opposed it’

Ironically, the environmentalists and slow-growth advocates who were pressing for tight controls in mountainous areas did not oppose the Barginears’ project.

“Nobody opposed it, it just got swept up in the times,” Hoie said.

Faye Hove, one of the most outspoken slow-growth advocates in Malibu, wrote a letter to the county last year, calling the Barginears’ plight “a gross injustice constituting harassment and excessive expense for one landowner for almost a decade.”

Hove, a member of an early citizens advisory committee on Malibu land use, said last week that Barginear was hurt in part by “all the revolving staff at the county,” who gave him advice and then moved on to other jobs.

“No accountability,” Hove said.

Ultimately, the county applied a concept known as slope density to land-use planning in Malibu. After assessing the steep and flat areas of Barginear’s acreage, the county told him in late 1982 that his land could hold 8.75 lots.

The news was the first glimmer of hope in a long time, and Barginear said he “thought maybe things were changing for me.” And he asked the Coastal Commission to approve nine lots.

However, a Coastal Commission staffer wrote to Barginear in 1983, saying nothing had changed: The Coastal Commission would not approve a nine-lot subdivision until it was reflected in land-use documents.

Disgusted, exhausted and now grimly determined to get his 12 lots, Barginear let his application for nine lots expire.

“I wanted to come out with something to show for all the wasted years, my family’s wasted years,” Barginear said. “Doggone it, the county owed us that much.”

Greenberg, Barginear’s former attorney, says he wishes Barginear had taken his unusual case to the coastal commissioners themselves in 1983, bypassing the commission staff.

“He had a great case for nine lots, but Cal was snake-bit, because my advice originally had been to go through the Coastal Commission in 1981, and it didn’t work.”

Still, Greenberg said, “I have never understood to this day why he didn’t take the nine and run with it. He might not have made money, but maybe he would have gotten away with his skin.”

At a loss over how to help the Barginears, Ireland of Dana’s office introduced them in 1984 to Burtram Johnson, a consultant with a reputation for trouble-shooting on tough land-use cases.

The Barginears immediately hired Johnson, and for weeks the two men sifted through a dozen cardboard boxes and seven thick notebooks in which Calvin Barginear has meticulously filed each letter, memorandum and document--even notes from phone calls--dating back to when the Barginears bought the land in 1976.

In January, Johnson and Barginear asked the Board of Supervisors to investigate the county’s handling of the case.

No Improper Action

In response, the chief administrative office issued a report a few days later saying the county had done nothing improper.

It noted, however, that nine lots probably would be acceptable to the Coastal Commission now and said there “may be validity to the developer’s request for 12 lots” because of the length of the case.

Johnson says the report is “a classic example of too little too late.”

The family has plunged so deeply into debt in fighting their battle that even if they were given 12 lots, selling them immediately would not save them from financial ruin, Johnson said.

In 1985, desperate to hang onto the land, the Barginears took out high-interest loans totaling $750,000. They paid off their original loan and set aside a fund to pay consultants and other future costs. Just one bank would take on the risk, and it charged them dearly--interest and loan fees amounted to a rate of 31%.

With interest and fees, the debt has skyrocketed to $1.3 million. Johnson said the 12 lots could bring more than $100,000 each, which would meet most of the debt but leave the Barginears empty-handed.

“I’d rather serve 10 years in prison than suffer what I’ve suffered,” says Barbara, who often cries when she talks about the zoning battle.

“It has ruined our lives, but we’re tough, and we’ll pick up the pieces somehow,” says their son, Gene, who lives in a mobile home on the land.

County officials say the county has done all it can do.

They point out that the county agreed to place a moratorium on the project, helping them to obtain deadline extensions that kept the project alive.

More Than Good Intentions

But the Barginears say the county owes them more than a well-intentioned effort.

So, since 1985 Johnson has hammered away at a strategy opposed by deputy county counsel Charles Moore and nearly every county official familiar with the case. Johnson contends that, because of a technicality, the county actually owes the Barginears 24 lots.

Johnson bases his argument on a quirk on the map approved by the Regional Planning Commission in 1980.

The commission drew a road that runs directly through the middle of each of the 12 lots. As drawn, the road cuts off each house from an acre-sized section of each yard.

Johnson argues that the county unwittingly created 24 lots when it crafted the map.

He contends, as does James R. Robie, an attorney whom he hired, that the road automatically creates a new property line, which doubles the number of lots.

In the suit filed July 1, attorneys for the Barginears claim that the county should approve the 24 lots.

Cheryl Keith, a Lawndale attorney representing the family, said that the road automatically constitutes a new property line.

Moore said that the road idea “is simply not the way the law works.”

In an effort to persuade the county to approve 24 lots, Barginear has offered to build a road to replace a slide-threatened portion of Latigo Canyon Road nearby, which he says will save the county money.

“When he came up with this road argument, that’s where we parted company,” said Michael Pohndorff, an aide to Dana who has grappled with the Barginear case in recent years.

“The thing about it is that I really tried for Burt, I really went to bat for that guy,” Pohndorff said. “I asked Moore, ‘Well, why wouldn’t a road divide one property into two?’ But I found that it just isn’t a proper way to do it.”

Keith said no case law exists that spells out whether a road drawn through a subdivision map creates a new property line. Instead, she said, she is relying on a 1973 opinion by the state attorney general.

Another Loophole

Johnson also argues that a coastal permit is not required for the Barginear property.

He says the county failed to put the coastal permit on a list of requirements issued to Barginear in 1980. Barginear was told to take care of flood hazards and a small slide area on the land but not to get a coastal permit.

However, Pohndorff said, “It’s just a fact of life that you have to go to the Coastal Commission for approval, whether that’s stamped on a piece of paper or not.”

“Mr. Johnson has a very creative approach and is a fighter for his clients--a real tough fighter,” said Ireland. “But county counsel has a very conservative and cautious approach to these issues. Unfortunately, there’s a real difference of opinion between them.”

Moore says the county would be breaking state law and could be sued by the Coastal Commission if it approved a final map for the project without a coastal permit.

Opinion Not Shared

Oddly enough, Moore’s opinion is not shared by the Coastal Commission.

“We wouldn’t go after the county in a case like that,” Faust said.

“We might be a little distressed that the county didn’t require a coastal permit before they approved a map,” he said, but it is “strictly the owner’s job to get that coastal permit from us before he sells off parcels of land.”

Calvin Barginear wants the Board of Supervisors to step into the fray. “I want them to cut me loose and let me record my map . . . before I lose everything,” he said.

Many observers of the Barginear case believe the controversy can only be put to rest in the courts.

However, the family has no money, and, Barbara said, “I just don’t believe I can face any more fighting.”

“It wasn’t to get rich, you know?” she said of her broken dream. “It was to send our children to college and have something for our retirement, because we worked pretty hard, Cal and I.”

Now, Calvin said, “I stand here, and I can’t move. I don’t know what direction to go in. I set out for my dream, but I ended up on a roller coaster.”