Malibu beaches seem to get more crowded every year, with frequent social media photo posts depicting piles of trash left behind on local beaches that don’t have public restrooms or trash cans. Visitors sometimes spend the day camped out underneath the pilings or overhangs of houses. The problem has been exacerbated by this year’s on-again, off-again public beach closures during COVID-19. As private property owners became more and more fed up, it appeared almost inevitable that the issue of property rights and signage would head to court at some point. Now it has.
On Sept. 24, 2020, Dennis and Leah Seider, represented by Pacific Legal Foundation (PLF), filed a complaint with the U.S. District Court, Central District of California, against the City of Malibu, challenging the restriction against signs to clearly mark where public access ends and private property begins at their beachfront home on Latigo Shore Drive.
In the legal action, the couple seeks an injunction and a declaration that portions of Malibu’s LIP (local implementation plan, which is part of the local coastal program) are inconsistent with the first amendment.
“What jumped out at us [PLF] about this case is that it really operates at the intersection of property and first amendment rights, and both of these are areas that we litigate in the U.S.,” attorney Jeremy Talcott said in a phone interview with The Malibu Times. “It’s where a property owner is being prevented from truthfully talking about their property rights.”
In addition, PLF wrote that, “Americans should not—and do not—need government permission to mark the boundaries of their private property in order to enforce their fundamental right to exclude trespassers. Yet, Malibu’s LIP demands that coastal property owners like the Seiders forfeit both their first amendment and property rights. That much is unconstitutional.”
All beachfront property owners in the state own the sand up to the “mean high tide line” as determined by a survey. The Seiders’ property actually gives the public an extra 25 feet of beach beyond the mean high tide line because of a lateral easement granted in 1976 by a previous owner.
In order to put trespassers on notice and protect their property against any future claims of “prescriptive rights,” the Seiders are seeking permission to post a sign indicating where the public easement ends and their private property begins. However, they say, because no signs are allowed, members of the public keep coming onto their private property and insisting they have a right to be there.
“We have quite a few folks that have come to sit under our house or on the beach immediately in front of our house,” Dennis stated in the complaint, “and when we come down to use the beach they’re sometimes abusive in their refusal to move, asking, ‘Where does it say this is private property; this is the Republic of California—I know my rights—I can sit wherever I want . . . etc.’”
PLF wrote that declaring private property with a sign is “a tradition likely as old as the country itself.”
In the California Coastal Zone, state law requires a permit for most signs; in Malibu, the city has the power to approve those permits. When Dennis inquired about obtaining a permit for a sign back in June, he was told by Planning Director Bonnie Blue that it would violate a provision of the LIP, which doesn’t allow any identification of the boundary between “state tidelands and private property.”
Blue also informed the Seiders that any changes to the LIP would have to be approved by the California Coastal Commission. In an exchange of emails, she emphasized that any sign on the beach describing the boundary of Dennis’s private property would violate the LIP.
“As such, they have no practical way to enforce their property rights,” the law firm stated.
The Seiders wanted to apply for a sign anyway, which requires a coastal development permit (CDP), but found out that in Malibu any CDP would require them to indemnify the city against all liability including any award of litigation expenses. They decided they couldn’t risk this, and chose to sue rather than apply.
In a phone call with The Malibu Times last week, City Attorney Christi Hogin indicated the language in the city’s LCP as well as state laws regarding the authority of the coastal commission will play an important role in the case.
Hogin also had a comment about the Seiders’ objections to signing a form that would indemnify the city against all liabilities, a requirement for a CDP—she said this practice was pretty much “standard” across the state.
“Individuals who are the sole beneficiaries of the rights to that permit should not put taxpayers on the hook,” Hogin said.
Not being able to put up a sign also puts the couple at risk of a prescriptive easement for public benefit, PLF wrote. “The coastal commission openly solicits evidence of public use of private property as part of its ongoing efforts to obtain prescriptive rights against private landowners.”
PLF attorney Jeremy Talcott explained in an email that the usual statutory protection against prescriptive easements “Does not apply to coastal property within 1000 feet of the high tide line. For those owners, the statutory method of protecting property from being publicly acquired is ‘Posting signs . . . and replacing them once a year if removed,’ along with a few other potential mechanisms of providing notice. So the prohibition on signs protecting private property in Malibu could potentially open up landowners to claims of an implied offer to dedicate for public use.”
Hogin said last week that the Malibu City Council had not yet evaluated this lawsuit but would do so in a closed session on Oct. 12. Following that hearing, which was not public information, Hogin reported council took “no reportable actions.”