Broad Beach property owners say that a cease and desist order by the commission is too vague.
By Jonathan Friedman / Assistant Editor
After two months of calm, the conflict between Broad Beach property owners and the California Coastal Commission flared again earlier this month when the Trancas Property Owners Association (which represents Broad Beach property owners) filed a lawsuit against the state agency challenging the cease and desist order it approved for the property owners in August.
The Coastal Commission and its staff say the purpose of the order is to ensure the public’s right to access the beach. But the property owners association argued in its petition for a writ of mandate to set aside the commission’s order for several reasons, including that the terms are “so vague that it is impossible for the association and others subject to the order to ascertain what conduct is required or prohibited.”
The Coastal Commission’s order instructs Broad Beach property owners to stop using all-terrain vehicles and to remove all “no trespassing” signs. The property owners association in its petition defended the use of ATVs as an effective method to patrol the 1.1-mile stretch of beach for the purpose of public safety and to ensure people do not inadvertently or intentionally trespass onto private property. It also challenged the commission’s ability to ban the use of all ATVs because, the association said, the commission did not have the jurisdiction to ban the vehicles in situations that did not interfere with public access.
Marshall Grossman, a former Coastal Commissioner who sits on the Trancas Property Owners Association board, said the ATV and sign issues are not what is most significant to the issue, with the property owners already having complied with those rules anyway. He said the vague language of other portions of the order is what could lead to trouble, because people have no way of knowing when they are violating the order. Grossman used as an example a statement in the order that property owners must “refrain from undertaking any activity that violates the terms or conditions of any coastal development permit issued for development along Broad Beach, including… a public access easement [or] deed restriction.”
“There is no way that any individual can even know what is included in every permit ever issued on Broad Beach,” Grossman said. “If somebody is said to have violated a permit condition on another person’s property of which they are not aware, they could be found to be in violation of the order.”
The homeowners association also took exception to a statement in the order that property owners must refrain from doing anything to discourage people from using the public portion of Broad Beach. Association attorney John Bowman wrote in the petition, “The order does not state with reasonable specificity the acts which the association and others are to do or refrain from doing, and is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.”
But Aaron McLendon, the commission’s statewide enforcement analyst, and commission Legislative Director Sarah Christie said the property owners association members know full well that what is being demanded in the order is the public not be prevented from enjoying the public portion of the beach through intimidation and other tactics.
“I don’t know how they could think it’s vague to be directed to take down the no trespassing signs and to put an end to the ATV beach police,” said Christie, who called Grossman’s statements a classic example of an attorney trying to make something simple into something complicated. “As for complying with all the terms and conditions of prior permits, certainly all of the homeowners know what the terms of their permits are; they know what their requirements are.”
Broad Beach homeowners and the Coastal Commission have been at odds for several years over public access issues. The public portion of the beach begins below the mean high tide line, which changes daily. But also, nearly half of the 108 properties along the beach have lateral access easements, which makes for a puzzle-like configuration of private and public property lines that are tough to distinguish.
Coastal Commissioner Sara Wan, a Malibu resident, has been an outspoken advocate for public access on Broad Beach. Although she recused herself from the vote on the order, the property owners association argued in its petition that she still had an influence on the outcome.
“Before [recusing herself, Wan made a statement to her fellow commissioners] that she was not biased,” Bowman wrote. “Wan’s pre-hearing conduct… and her activities leading up to, and in the issuance of, the order, including but not limited to lobbying the commission staff and commissioners alike and in helping to craft the order, was so extensive as to deny the association a fair hearing and due process of law.”
Wan did not return calls for this story. Christie said she doubted the lobbying of a commissioner would influence the Coastal Commission staff.