Owners of Malibu Mansions Cry, 'This Sand Is My Sand'

August 25, 2002

By Timothy Egan

The New York Times

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MALIBU, California, August 23 - It started as another golden California day, the shoreline aglow in the haloed light of midmorning. Rob LeMond was teaching children in his surfing camp, passing on nearly a half-century of knowledge about riding the waves of the Pacific.

Then a nearby homeowner complained that Mr. LeMond's surfing students had crossed the line onto his beach property. The sheriff was called. A long argument followed over which strip of sand belonged to the public and which was private.

"Finally, this homeowner turned to me and said something I thought I'd never hear on a California beach," said Mr. LeMond, 54, of Malibu. "He said he did not like to look out his window and see people swimming, because it blocked his view."

Skirmishes over surf and sand have become particularly intense up and down the Southern California coast this summer.

To some people, the fight is about a California birthright: public access to every inch of the state's 1,160-mile shoreline. By law, there is no such thing as private beach in California. In a state where 80 percent of the 34 million people live within an hour of the coast, it is no small fight.

Others see a gold coast of hypocrisy. Some of Hollywood's and the Democratic Party's biggest contributors to liberal causes, like David Geffen, have turned into conservative property-rights advocates because the battle is taking place in their sandy backyards.

"The real issue here is money," said Steve Hoye, the leader of a nonprofit group, Access for All, and an active Democrat.

"These people who live on the beach here think that the public cannot be trusted to walk or swim in front of these million-dollar houses," Mr. Hoye said.

A court fight, initiated by Mr. Geffen, the entertainment mogul, could take the question of beach access well beyond the shores of Malibu. Last month, he filed suit seeking to block public access to a narrow walkway that goes by his Malibu compound. He promised access 19 years ago, but the path has never been opened, and Mr. Geffen now says it would be unsafe, dirty and impractical to allow people to walk by his home to the beach.

Mr. Geffen contends in the lawsuit that the access way amounts to a "taking of property without compensation," an argument that conservatives have used in environmental fights for years. If the suit is successful, it could make it much harder for state and federal agencies to open paths to public beaches throughout the United States, or even to acquire open space for wildlife or recreation, some experts say.

"This could keep the public away from a lot of beaches," said Robert Ritchie, director of research at the Huntington Library in San Marino, who is writing a book on beach culture. "And because a very significant percentage of the United States population now lives in counties facing the ocean, the pressure for public access has become enormous. At the same time, you have these homeowners fighting to keep the hordes back."

The stand taken by beachfront owners here in Malibu, long a Democratic Party stronghold, has infuriated another sector of party supporters -- environmentalists.

"Here you have the superrich wanting to have a private beach in a state that decided long ago it would not allow any private beaches," said Carl Pope, executive director of the Sierra Club. "It's a huge land grab. By blocking access, they want to lock up the coast."

Further complicating the issue, a prominent environmental philanthropist, Wendy McCaw, has vowed to take her lawsuit against beach access to the United States Supreme Court, making many of the same arguments as Mr. Geffen.

Ms. McCaw, the billionaire owner of The Santa Barbara News-Press, is trying to block access to a 500-foot strip of beach below her 25-acre estate on a bluff in Santa Barbara County. The easement was granted by a previous owner, and Ms. McCaw says it does not apply to her. She has already paid $460,000 in fines in her fight to prevent access. She says if the state is going to require an access path from her private property, then she should be compensated.

"There needs to be more effort toward protecting the embattled wildlife calling our beaches home, rather than focusing on how to pack more humans with their destructive ways into those sensitive habitats," Ms. McCaw said.

In most states, beaches that are covered by water at high tide but are relatively dry at low tide are public. The entire West Coast falls under this mean high tide doctrine. But some states, notably New York, Massachusetts and Maine, are more restrictive, allowing fences in the water and private ownership of tidelands.

California voters, in a populist campaign 30 years ago, took the additional step of guaranteeing "access" to beaches, and empowered the California Coastal Commission to fight on the public's behalf.

Since then, the state has reached more than 1,300 access deals with private property owners, but many of those have a time limit and are set to expire within a few years.

"Development shall not interfere with the public right of access to the sea," reads a section of the California Coastal Act.

Beachfront owners in Malibu have surveyed the tide lines and posted signs warning people that it is trespassing to walk within a zone they have claimed from their houses to the ocean. The coastal commission says these private surveys are meaningless because the definition of what a public beach is changes daily, with the tides.

Still, homeowners in parts of Malibu have hired private security forces to roam the beach on three-wheeled vehicles, herding people away from areas they consider private property.

A 1987 Supreme Court ruling, Nollan v. California Coastal Commission, limited the commission's authority to insist on public access, saying it had power only over new developments. Mr. Geffen and Ms. McCaw are trying to expand the Nollan ruling.

Mr. Geffen's spokesman, Andy Spahn, said the Nollan ruling should be applied retroactively to Mr. Geffen. Mr. Spahn said the public access promise Mr. Geffen made in 1983 was "extorted" from him as a condition to expand his beach property with maid quarters and other improvements.

Mr. Spahn also said he wanted to start a debate about the "beachgoing experience" of the public.

"We think this is the wrong place for access," Mr. Spahn said, referring to the path next to Mr. Geffen's house. "People are looking for safety, for bathrooms, for lifeguards. They're not going to want to cross four lanes of highway, carrying beach furniture."

But the coastal commission says that it has granted hundreds of access points that are no more than footpaths next to mansions, and that they operate without lifeguards or bathrooms and have few problems.

The path by Mr. Geffen's estate is blocked by a locked gate. In front of the house is a 275-foot stretch of beach, which is open to the public at low tide, but requires a 20-minute hike to reach now.

"What David Geffen is doing is simply breaking his promise," said Sara Wan, chairwoman of the coastal commission. "He has a very nice stretch of beach in front of his house, and it belongs to the public."

The city of Malibu, a 27-mile strip of beach castles and hillside homes along each side of the Pacific Coast Highway with a population of 13,000, has joined Mr. Geffen in his lawsuit.

Jeff Jennings, the mayor of Malibu, said the city was concerned about safety and garbage pickup if the access point at Mr. Geffen's house was not properly maintained by Access for All, the group that has been granted the right to manage the pathway should it ever be opened.

"I have no interest in keeping the public off public land," Mr. Jennings said. "But most people who come to the beaches are not experts in water safety. It can be a highly dangerous situation."

Veteran surfers, who rely on the narrow public paths to get to some of the best waves of the Pacific, say they do not need lifeguards or bathrooms. But they would like to bring back an earlier era.

"In the old days, it was live and let live," said Kurt Lampson, a surfing instructor who grew up on Malibu's beaches. "Now you got these guards going around saying sit here, don't walk there. It's depressing."