Can't reach the beach? Turf war on Malibu's coast

By , Staff writer of The Christian Science Monitor

One California guidebook calls this beach-side community of 13,000, sprawled along 27 miles of coastline, "garage doors of the rich and famous."

It's a populist resentment nurtured over generations by those who find the pedestrian view far too pedestrian. Here, along one of California's most spectacular stretches, beach pilgrims are greeted by the back views of Hollywood homes – the mansions of Tom Hanks, Goldie Hawn, Robert Redford, and others.

The guidebook jibe reflects decades of cheek-by-jowl home building that largely prevents access to beaches – which, by law, are public.

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Now, in a series of court cases that will clarify the issue of public access to California beaches – and be closely watched across the US and in Europe – environmentalists, local officials, and homeowners are duking it out. Several observers say the cases may end up in the US Supreme Court. Beyond the clash of homeowners and visitors, there are environmental, health, safety, and social-justice concerns.

"The California coast belongs to all people, not just entertainment moguls and rich movie stars," says Robert Garcia, director of the city project for the Center for Law in the Public Interest. The city of Malibu, he points out, is 88.5 percent non-Hispanic white, and 25 percent of households have incomes over $200,000; Los Angeles, in contrast, is 31 percent white, with only 3.5 percent of household incomes over $200,000. "This is very much a case of the people of Malibu not wanting other people to use their beaches," says Mr. Garcia.

The current spate of court fights stretches from Malibu to Mendocino, several hundred miles north. All have their genesis in a 1972 citizens' initiative (Proposition 40) that reaffirmed a state law claiming beaches as public space, and created a new agency – the California Coastal Commission – to guarantee access along the 1,160-mile coastline.

One of the commission's primary tools has been requiring homeowners seeking building permits to donate easements. These options to develop (OTDs) allow for strips of public right-of-way that can be opened by government agencies or environmental groups willing to pay for upkeep.

With time running out on many of these OTDs, groups that have formed to open a few of the paths are incurring the wrath – and legal recourse – of local homeowners.

The highest profile case at the moment concerns David Geffen, the "G" in SKG Studios, formed in 1996 by Mr. Geffen, Steven Spielberg, and Jeffrey Katzenberg.

The California Coastal Commission authorized a local environmental group, Access for All, to pick up the option on a strip next to Geffen's beachfront property. But Geffen is taking the group to court on procedural and other grounds.

"We feel that there have been no studies of public safety, environmental impact, or traffic in selecting this site for an access," says Geffen spokesman Andy Spahn.

Though he acknowledges a "general, across-the-board support for the notion of public access," Mr. Spahn questions the motives of Access for All in selecting his high-profile client. And he wonders whether such a small group can maintain the path: Spahn says "Access" has only three members, though Steve Hoye, the group's head, claims three board members, eight advisory activists, and 100 volunteers.

The City of Malibu has joined Geffen, citing concerns about safety and management.

If Geffen and Malibu win, federal and state agencies elsewhere may find it harder to create open access to public beaches. Fights are pending in Texas, Massachusetts, Hawaii, and elsewhere.

Scheduled to be heard next month, the Geffen case has already drawn national coverage – and plenty of David vs. Goliath comparisons. Last week, Pulitzer-prize winning cartoonist Gary Trudeau began serial references to it: A character known as "Surfer Dude" decries the fate of coastal access, "blocked by the Malibu mansion people and their dark leader," referring to Geffen.

The Geffen OTD was put on the books in 1983. But four years later, a Supreme Court case (Nollan vs. California Coastal Commission) declared the method of requiring OTDs in exchange for permits illegal. "We feel [Geffen] had a right to the permits without signing over these easements," says Spahn. "And we feel that what the US Supreme Court said was illegal in 1987 was also illegal in 1983."

But some legal scholars say that the finding is not likely to apply retroactively.

"At the time these agreements were signed, they were completely in agreement with California law," says Harold Kushner, law professor at Southwestern University in Los Angeles. "If Geffen had any challenge to the legitimacy of the easement agreement, the time to challenge it was then."

So far, in other cases against the California Coastal Commission, the commission appears to have a legal edge. In nearby Santa Barbara, wealthy publisher Wendy McCaw has tried to block access to a 500-ft. strip of beach below her estate using arguments similar to Geffen's. But in early decisions, the judge has ruled against her.

"Each of these easement conditions were accepted by the landowners at the time they got their permits," says Linda Locklin, manager of the commission's coastal access program. "Now that we are trying to make a go of them, they are all saying, 'Hey wait a minute, I want to change the rules.'"

Mr. Hoye, head of Access for All, says Hawaii activists have contacted him, concerned that hotel chains are buying land and closing off public access. And he's been contacted by groups in Texas, Connecticut, Massachusetts, Germany, and France facing similar clashes of public and private interests. Still, some say the Geffen dispute is being overblown because of Geffen's fame.

"Beach access in Malibu is only a problem on perhaps a half dozen weekends per year," says Arnold York, publisher of the Malibu Times, noting that on Labor Day weekend, crowds of 850,000 converged on the tiny hamlet. He thinks Access for All has picked the fight to create leverage in a host of other coastal management issues.

"This is about whether the CCC can use 'Godfather' tactics to get their way," says Mr. York. "Making homeowners donate OTDs in exchange for building permits is like the guy in the movie who said, 'I'm either going to have your brains or your signature on this contract.' "

Whatever the motives, the Geffen case is likely to clarify future cases, as it draws more attention to how – and whether – such commissions can control beach access.

"The court will bring at least legal clarity to the clash between the legitimate need for access ways vs. homeowners who feel they are simply being taken advantage of," says Professor Kushner.

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