Property lines in debate

A fight that’s almost half as old as this country continues to flare up in Malibu over the definition of where private beachfront property ends and state-owned lands begin.

Since the early 1800s, court cases have been debated as to what constitutes the line dividing private and public-owned property.

The State Lands Commission (SLC) says one thing, property owners another, and even with issues not relating to ownership but with where one can hold a film shoot, state rangers say yet another.

Beachfront property owners do know the boundaries that lie to the east, the north and the south, of their property; however, west, or seaward, is where the problem arises.

When homeowners want to build-out on their property seaward, perhaps adding just a deck, they may be told they cannot because they are encroaching on state land. They may even be told their existing property already is encroaching on state lands.

This has not only caused a problem with property owners, but also for people like Doreen Consol, executive director of the Malibu Bar Association, and an employee of Malibu Locations Etc, Inc.

Consol helps location scouts for film, television and print shoots to find not only homes but beaches to film on. During one such shoot, Consol said that a State Parks and Recreation ranger had stopped the shoot, in addition to other reasons, because he claimed they were on state land.

She said the ranger said where the seaweed on the beach was indicates where the last high tide was, which meant that was where state land begins — at the mean high tide line.

The mean high tide line is apparently what determines where private property ends and public land begins in coastal areas.

“The mean high tide line is always the big deal,” said Consol. “What is it, does everyone think the mean high tide line is the same thing, is everyone informed? Everyone has a different opinion.”

Reg Browne, president of Pacific Engineering Group, is a coastal engineer and has testified in cases that involved the dispute of where private property boundaries lie.

“The legal definition [of the mean high tide line] is where the land intersects the elevation of the mean high tide,” explained Browne. “The mean high tide is a certain distance above the mean sea level (mean sea level is when the ocean is at rest with no tides) [which is] 1.9 feet.”

This measurement was established after a series of surveys over a period of 19 years off the L.A. Harbor.

Browne said that in Malibu that line can vary, on average, 80 feet between summer and winter.

However, when the sudden movement of land, called avulsion, is cause by the natural forces of water, it does not change where the line will be. Most of the time, property lines are moved by only a few inches or feet.

In certain cases, where beachfront property has changed due to artificial causes, property owners have had to tear down what they have built. One problem debated in courts is in trying to determine what is artificially caused.

Curtis Fossum, senior staff counsel for the State Lands Commission (SLC), said about boundary disputes: “Ninety percent of the time there is no problem whatsoever. In a few instances we have asked an owner to move their property back and they do that. There’s only been a couple of instances where that has been a problem.”

One of those instances involves Fred Patrick, a local contractor who purchased a 50-year-old house at Las Tunas State Beach about 10 years ago.

“Six months later the state came in and claimed they owned the entire property,” said Patrick.

The problem started when Patrick applied for a permit to put in a bulkhead (a wall that if placed in front of the property would protect the home from incoming waves).

“They said not only are we not going to give approval [for the bulkhead], but we’re going to take your land,” said Patrick.

This was because groins had been put in at the Las Tunas beach property where Patrick’s home was, which artificially caused sand to build up, extending the property beyond state owned land.

“Groins more or less fixes the beach at that location,” said Fossum.

According to court rulings on a myriad of other land dispute cases, when an area is artificially changed, it does not change where the property line will be. Before the groins were put in, the mean high tide elevations intersected the land farther back.

The SLC gave Patrick the option of signing a lease to keep his home on the property but he did not want to go that route.

Patrick and the SLC went to court over the dispute, and in the end Patrick had to cut his house nearly in half, said both Fossum and Patrick.

“I’m hurt,” said Patrick, “I’m just a builder. I’ve built here in Malibu for many years . . . I don’t have those kind of dollars to work with.”

“The SLC, since 1938, has been the responsible agency for managing the state’s water bodies,” said Fossum. “Malibu has [had] the most development on the beaches in the past 40 years. We look at those projects and take the facts we have as to the location of the boundary–where it is and has been, and try to make the best judgment as to where the line is.”

The battle continues with other property owners.

Norm Haynie, a civil engineer and local resident and developer, has been involved in court battles since 1997 over the determination of where his Lechusa Villas Beach property boundary lies.

Haynie said that court rulings regarding the use of the mean high tide line contradict the public resource code, which he said requires that property lines are “easily ascertainable.”

“The way the appellate court has interpreted the law, the Coastal Commission and the SLC can deny use of all property,” said Haynie.

“What happened with Haynie is that he was relying on an old 1930s survey that showed the beach was quite wide,” explained Fossum.

Joe Barbieri, deputy attorney general, said that the court has responded ‘yes’ there is a certainty–a legal definition of where property boundaries lie on the coast.

“What’s uncertain is where that boundary is any one day,” said Barbieri.

The Malibu Times is the first newspaper in Malibu, serving the community since 1946.

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