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

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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