A property owners association, which is being sued by the state for moving public sand without a coastal permit, offers an apology, but the Coastal Commission says sorry won’t do. The association faces fines that could exceed $400,000 and another possible lawsuit.
By Hans Laetz/ Special to The Malibu Times
Broad Beach homeowners who hired bulldozers to move sand from public beach to form a large berm in front of private homes without the necessary coastal permits face collective fines that may exceed $400,000, but have asked the state to forgive penalties for what they admit was a big mistake.
Not likely, said a California Coastal Commission enforcement officer, who noted that public access was prevented, state-protected fish eggs washed to sea, rare sand dunes damaged and numerous permit laws flaunted by the Trancas Property Owners Association.
State attorney Bill Lockyer filed the lawsuit against Trancas Property Owners Association last week over the sand movement on behalf of the California Coastal Commission and the State Lands Commission.
And that lawsuit may be just the beginning. Documents obtained by The Malibu Times indicate that the Coastal Commission plans to file additional court action soon over the issues of Broad Beach residents placing “no trespassing” signs and chains on publicly owned wet sand and hiring private security guards on motorized vehicles to ask the public to leave dry sand that in some cases is open for beachgoers.
Aaron McLendon, a Coastal Commission enforcement officer, is quoted in the association’s formal defense as telling residents the state will press forward in August seeking a new cease-and-desist order against Broad Beach residents.
The offending signs and chains were removed last month, and last weekend a lone security guard on foot was observed patrolling a line of small flags that are well inland from where the controversial wet-sand signs and chains were in past years. Talks had been underway with the Coastal Commission and the property owners association over those issues before the current controversy took place.
A property rights watchdog lawyer said he expects the California Coastal Commission to use the threat of fines in the sand movement case to seek advantage in long-playing talks to end the Broad Beach owners’ claims to wide swaths of the beach, one of the few coastal dune environments left in Southern California.
“The commission tends to go after people it already has a dispute with,” said Dave Breemer, staff attorney for the Sacramento-based Pacific Legal Foundation. “It often gets the land it wants out of the enforcement effort.”
The extensive sand movement last month destroyed incubating eggs from at least three grunion runs, state officials charge.
“The damage that was done was extensive,” McLendon said. “It adversely affected public access-you couldn’t walk up and down the beach,” he said.
“You cannot get away with what they’ve done, and these sorts of violations are seriously taken,” he added. “The fines say don’t do this sort of thing again.”
Owners of the row of 108 multimillion dollar beachfront houses are tight-lipped and said they could not comment on the lawsuit. Trancas Property Owner Association member and attorney Marshall Grossman and other board members have declined to comment on the case.
But in its formal response to the Coastal Commission, the property owners association admits a serious mistake was made when a contractor dramatically altered the mile-long beach without necessary permits, and further blames its contractor for exceeding his instructions. The sand has since been put back, with the necessary coastal permits.
But the Coastal Commission notes that a property association board member signed off on each day’s work. The state is not charging the bulldozer contractor, but is going after the Trancas Property Owners Association for a $15,000 per day fine for the period that the sand berm was in existence-three to four weeks-plus a $30,000 fine for each violation of law.
Ross Feinberg, an Orange County real estate attorney who is president-elect of the Commercial Association Institute in Washington, said the problem would be in dividing responsibility among board members and the 108 homeowners along Broad Beach, not all of whom are necessarily members of the voluntary property association.
“Unless the board followed the ‘business judgment rule,’ the individual board members or their insurance policy could be liable for the fines,” he said in a telephone interview. “That rule would give TPOA board members immunity if they had consulted engineers, officials or other experts who had erroneously told them to proceed without necessary permits from the Coastal Commission, Los Angeles County, city of Malibu, U.S. Army Corps of Engineers and state Department of Fish and Game.”
State officials agree and as of now, the only two homeowners named in the lawsuit are property association president Arnold M. Palmer and secretary Winifred Lumsden, who authorized and oversaw the earthwork, officials said.
Palmer is out of the country, and Lumsden would not comment.
In its statement of defense, the Trancas Property Owners Association said sand needed to be piled near culverts and storm drains that had failed during last winter’s massive rains, which washed out a section of Pacific Coast Highway just above Broad Beach.
“The repair work included restoring public access ways where storm damage precluded the public’s use of those access points,” read a statement by the association. “When the repair work was requested, it was believed no coastal permit was required.”know and would have more information later.