CHARLES HARTLEY, Attorney at Law
|Author of 'Overview of California Coastal Access Law'|
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This article was originally prepared and published in 2004 for beachlaw.info as part of a bar-approved program offering continuing legal education for California attorneys.
Overview of California Coastal Access Law
By Charles E. Hartley, Esq.1
California’s beaches have been called its greatest resource. Even taken in purely economic terms, tourism and recreational uses alone contribute millions of dollars annually to the state’s economy. Valued coastal views add significantly to the worth of many parcels of property, increasing property tax assessments and creating equity that is a major component of the net worth of thousands of individual Californians.
What is the beach?
Beach is defined in popular usage in a variety of ways. A beach is a nearly level stretch of pebbles and sand beside a sea, lake, etc., often washed by high water.2 A beach is a gently sloping zone where deposits of unconsolidated sediments are subject to wave action at the shore of an ocean or lake.3 The public beach is generally that section between the water line and the mean high water mark.
While that applies as a default legal definition and general rule of thumb, like all generalities that definition can be misleading. An August 2003 Los Angeles Times article reporting on access and use controversies at Malibu’s Broad Beach noted that of 108 houses on the stretch of coastline, 43 of the lots had some form of public easement on the sand. These easements generally added 25 feet of dry sand to the public beach, but some were larger.4
Similarly, in the Supreme Court’s 1987 opinion in Nollan, the opinion discussed the fact that 43 out of 57 shoreline lots on a certain tract of land in Ventura County were subject to an easement obtained by the California Coastal Commission to allow access to the land between the mean high-tide line and an inland seawall. Fourteen of the remaining lots were not subject to that easement, presumably because no permits had been requested during the period the Commission. had the authority to demand these concessions.5
THE TRUST AND THE COMPETING TRUST INTERESTS.
The concept that the tidelands are held in public trust is not new. It passed from Roman and English common law to California when the state was admitted to the Union in 1950.6 The current trust is identified and acknowledged in the California Constitution.7
In 1986 the Court of Appeals, Fourth District considered the questions of what uses the trust allows, and how they must be prioritized. They were considering an appeal arising from the issuance of a permit for the construction of portions of the San Onofre Nuclear Generating Station. Once completed, federally mandated safety regulations would have effectively barred all public access to this portion of the coastline. Although not discussed in the opinion, given the nature of atomic power generation, public access would presumably be barred for the foreseeable future once the station became operational. Carstens, acting as a member of the public, was denied a writ of mandate in his effort to block the permit and initiated the appeal, which inter alia made the argument that the permit does not protect the “right of free access to the tidelands.”8
The Court discussed the competing public trusts, citing case law and secondary sources to state that the various legal interests of the trust include navigation, commerce, fishing, bathing, swimming, boating, recreation, and preservation for scientific study, food and habitat environments for birds and marine life, and provision of a favorable affect on the scenery and climate of an area.9
The court went on to specifically discuss permitted commercial uses:
California law remains clear that as a matter of law no one trust interest automatically has a priority or preference over any other permitted trust use.
PRESCRIPTIVE EASEMENT AND IMPLIED PUBLIC DEDICATION
Change Of Ownership and Forms of Title
There are several ways landowners can lose control of their land for public coastal access and use based on their own acts and omissions. These are cases where the right to public access has already come into existence, and government involvement, if any, is probably in a litigation context to formalize or enforce that right. These are public dedication, either express or implied. This dedication, if it occurs, will result in a title change that could affect the fee interest or result in some type of an easement. In addition to traditional adjectives used to describe coastal easements such as prescriptive, express and implied, two additional adjectives are used to describe the easements at work here: lateral and vertical. Lateral easements are those that run parallel to the beach and generally serve to increase the area available for recreational use. Vertical easements run perpendicular to the beach and generally serve to provide a corridor between the public beach and some inland public space such as a road or parking area.
In California the dedication can be through deed or other action, but also through what was termed by the Supreme Court in Scott11 as “lapse of time.” The required lapse of time is generally five years. Dedication by lapse of time is distinguished from a dedication based on acts or conduct because it looks at whether the public, through long-continued adverse use of the property had so manifested its public aspect as to justify the implication in law that a dedication had occurred.12
Public dedication for coastal access is perhaps best discussed by the California Supreme Court in Gion,13 also known as Gion-Dietz. The Gion opinion actually provides the court’s opinion in two cases, Gion v. City of Santa Cruz and Dietz v King, cases arising in Santa Cruz and Mendocino Counties respectively.
Gion concerned three parcels of land and 480 feet of shoreline within the City of Santa Cruz.14 The public had used the property in some capacity, mostly as a parking lot, since the turn of the century, and the Gions bought the parcels in 1958 and 1961. Evidence of public use included showings that ice plant was planted there in the early 1900s by students “to beautify ... and prevent erosion,”15 warning signs were installed by the city in the 1920s, the city filled in holes and built an embankment in the 1940s, and replaced a guardrail in the 1950. In the early 1960s the city expended considerable sums to counter erosion, paved the area, maintained garbage cans on the property and cleaned the area after busy weekends.16 The trial court found that the Gions’ property was subject to an easement by the City of Santa Cruz “on behalf of the public, in, on, over and across said property for public recreation purposes...but not including the right of the City or the public to build any permanent structures thereon.”17
In Dietz, the Kings bought land that included Navarro Beach and an unpaved road in 1959. The beach and the road had an extensive history of public use and one former owner testified that she intended that the public use the beach “just for the fun of being out there,” but there was evidence that other prior owners had attempted to regulate access: a chain across the road in about 1910-1920 may have been intended to block either visitors or cows from straying, and from 1949 on the proprietor of the Navarro-by-the-Sea Hotel attempted to charge a fifty-cent toll on the road with limited success. Starting in 1960 the Kings attempted to block access to the beach and the road and in 1966 the conflict came to litigation when the Dietzs, representing the public filed suite. The trial court found on behalf of the Kings that there had been no dedication of the beach or the road.18
The Supreme Court upheld the trial court in Gion and reversed in Dietz, finding a public dedication in both instances.
Historically, the courts were less receptive to arguments of public dedication of open beach lands than to claims involving open roads. The Gion court explains that this was in large part due to the evidentiary issues, i.e, that it was easier to define use of a road than a large, open space, but in Gion, citing the constitutional and policy preferences for coastal access in California, concludes that “the courts of this state must be as receptive to a finding of implied public dedication of shoreline areas as they are to a finding of implied dedication of roadways.”19
In Berk, a 1980 decision explaining Gion, the court went out of its way to explain that the “adversity” necessary for an implied dedication is not the same adversity necessary to perfect a form of prescription or adverse possession. Here adversity is “an ingredient in the evidentiary structure necessary to the implication in law that a dedication to the public has occurred.”20 A finding that the public uses the subject property as if it were part of a public recreation area is a sufficient finding of adversity to sustain a finding that an implied public dedication has occurred.21
One interesting comment on this state of the law arises from the facts in Berk. Ignoring such issues as guarantees of title as outside the scope of this article, a purchaser can purchase coastal land and immediately be subject to an effort by the public to enforce their ownership interests, which come into existence at some point in during the course of the public’s use.
Defensive Actions Available To Property Owners
While at first glance it might appear that the public’s power of private ownership of property is considerable, if not excessive, that may no longer be the case. The legislature recognized the risk that having “owners of private property confronted with the threat of loss if rights in their property”22 and found that incompatible with the best interests of the state. The legislature decided it was in the best interests of the state to encourage owners of private property to make their lands available to the public to supplement the opportunities provided by the taxpayers.23 The California legislature responded to the Court’s holding in Gion with several statutory changes.
Civil Code section 813 allows a property owner to public record a document permitting the public access.24
Civil Code section 1008 bars the creation of an easement by prescription when the property owner has posted signs every 200 feet along the boundary of the property granting a right to pass.25
A property owner may also enter into a written agreement with “any federal, state or local agency”26 to allow for public use of the property.
The permissions granted under these sections may include reasonable time, place and manner of use limitations.27
While suffering temporary loss of exclusive use of their coastal properties, these provisions give the property owners a powerful defense to a claim of public dedication. Use of any of these means of consenting to public use bars any use of the allowed public use to be considered as evidence of an implied dedication.
Coastal Access through Conditional Permits
The California Coastal Act28 governs development29 within the coastal zone30 of California. Suffice it to say that it is well-settled law that the California Coastal Commission has the authority to condition permits in the coastal zone of the offer of an easement or express public dedication of some part of the property in question for coastal access. There are many exceptions and intricate regulations governing the permit-issuance process. Some of these exceptions involve the controversial practice of allowing property owners or developers to donate separate parcels of land to the public in mitigation of the impact of the proposed development. Due to the volume of material further discussion of this area is beyond the scope of this overview.
The Takings Clause
Many coastal property owners facing conditional permits have objected to the demanded public easements in the grounds that the easements are takings for which they must be compensated under the Fifth Amendment (made applicable to the state by the Fourteenth Amendment) to the United States Constitution. This argument has made it to the Supreme Court several times.31 Most applicable to this discussion is the Court’s opinion in Nollan v. California Coastal Comm’n.32
The Nollans owned a beachfront lot in Ventura County. When they originally acquired33 the lot, it contained a 504-square foot bungalow. The bungalow fell into disrepair and they decided to demolish the structure and replace it with a three-bedroom house “in keeping with the rest of the neighborhood.”34 The demolition and construction required a Coastal Development permit under California law, and the Coastal Commission demanded an easement for public access on the land between the mean high tide line and a certain seawall as a condition for the required permit. The Commission had based their demand for the easement on the finding that the addition of this house to a “wall” of residential structures would cause psychological barriers to beach access. Justice Scalia, found that this was not sufficient to justify an uncompensated taking under the U.S. Constitution. He discussed the illogic of the Commission’s argument in writing that:
To avoid compensating property owners for these easements, the easement demanded has to have some nexus to the government interest being advanced by the restriction. One can speculate that the easement demanded of the Nollans was defeated only because it was limited to increasing the size of the usable beach itself (a lateral easement); if an actual access corridor from the road had been included (a vertical easement), at least that portion of the easement may have been permissible under the Supreme Court’s holding.
Government agencies at various levels certainly have the power to forcefully purchase land desired for either access or recreational use through the power of eminent domain. Especially in the current fiscal climate, it’s easy to see why they would prefer to obtain an easement at no or minimal cost. Beyond an acknowledgment that this option remains open to government, details of the process and the issues involved, particularly valuation of property, are beyond the scope of this overview.
While the public beach in California includes at least the portion of sand up to the mean high tide line, the actual public beach varies from lot-to-lot and break-to-break up and down the coast. California’s coastline is subject to many competing interests, and coastal property owners may face loss of their exclusive use based not only on their acts or omission, but those of their predecessors. There are steps they can take to protect their interest against the permanent creation of an easement, but these similarly involve a loss of exclusive use of the property in question. Similarly any development or use requiring a new development permit may result in an easement or expensive grant of similar property to the public. Given the state of the law, property owners’s rights are severely limited and only the most careful planning and use can allow the coastal property owner to maintain a fee interest in the property free of easements and other encumbrances.
Mail: 197 Woodland Parkway #104, PMB 403, San Marcos, California 92069