Protecting Public Coastal Access Easements from Extinction
| Publication year | 2017 |
| Author | by Amy Foo |
by Amy Foo*
California's 1100 miles of coastline attract over 566 million visitors annually to enjoy the breathtaking beauty of its sandy beaches and rocky shores.1 Moreover, the state's population and economy are concentrated in its coastal counties, which account for 68 percent of its population and 80 percent of its GDP.2
Given the widespread importance of our coast, a grassroots organization with the acronym COAAST (Citizens Organized to Acquire Access to State Tidelands) began a "Save the Coast" campaign in the 1960's.3 In 1972, this campaign resulted in California voters approving Proposition 20, an initiative for a coastal protection program.4 The state legislature then made this program permanent in 1976 by enacting the California Coastal Act, which mandates that public access to and along the shoreline be maximized.5
The California Coastal Commission is charged with implementing the Coastal Act through its regulatory powers, including the authority to require offers to dedicate (OTDs) as a condition of receiving coastal development permits.6 An OTD is an offer from a private landowner to grant a public access easement across his or her property.7 The purpose of OTDs is to mitigate the impacts of proposed projects on public coastal access.8
Since the passage of the Coastal Act, more than 1,500 OTDs have been made along California's coastline.9 OTDs either run vertically to a public beach or laterally along a shore.10 A vertical OTD is typically 10 feet wide, and a lateral OTD is typically at least 25 feet wide or the width of the beach.11
Turning an OTD into a public easement involves three steps.12 First, the offer must be accepted by a government agency or nonprofit organization willing to take on the operation, maintenance, and liability for the easement area.13 The Coastal Commission is responsible for inventorying and prioritizing outstanding OTDs and for administering outreach programs to encourage entities to accept outstanding OTDs.14 This is a lengthy process that usually involves a 21-year window for acceptance.15Second, the accepting entity must construct physical improvements (e.g. stairs, signs, etc.) to make the area useable.16 Third, the accepting entity must open the easement to the public and maintain it in perpetuity.17
Some private landowners feel the OTD program is too onerous, complaining that the Coastal Commission has abused the Coastal Act "to leverage private landowners into providing an offer to dedicate . . . a public access easement[] almost each and every time landowners seek to develop their lands."18 They argue that OTDs diminish the value of their lands compared to identical "unburdened" ones, "imped[ing] the landowner's ability to sell his or her property for fair market value."19 Some have filed lawsuits challenging OTDs in what they see as a "struggle between David and Goliath," where "it is extremely difficult for private landowners to overcome the political machine that protects state interests at the expense of its citizens."20 These landowners propose that OTD requirements be relaxed.21
In response to landowner complaints, this article discusses state policy that justifies the OTD program, explores an existing loophole in the OTD program, and offers a proposal to tighten OTD requirements. While OTDs can present a hurdle to private landowners, on balance, they are not too burdensome on coastal development, and their requirements should not be relaxed.
For years, landowners in coastal areas have engaged in OTD disputes with the Coastal Commission.
For example, in 1983 entertainment industry executive David Geffen applied to the Coastal Commission for permits to construct improvements to his house located on four contiguous lots that he owned on Carbon Beach in Malibu.22 The permits he received were conditioned on an 18-foot-wide vertical OTD from the highway to the beach and other lateral OTDs.23 By their terms, the OTDs would expire if not accepted within 21 years.24
Before the OTDs were accepted, Geffen installed a locked gate on the property.25 Then, six months after the nonprofit Access for All accepted the OTDs in January 2002, Geffen sued the Coastal Commission and Access for All, alleging that the nonprofit's acceptance of the OTDs was illegal and unconstitutional.26 But faced with $1,000-a-day fines for non-compliance with the OTD terms, Geffen agreed to settle the suit in mid-April, paying the other party $300,000 in legal fees.27
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Underlying such disputes about the OTD program is some landowners' sense "that the shore is [their] private backyard."28
However, the state owns all the land below the mean high tideline,29 including the tidelands and submerged lands, in public trust for the benefit of its citizens.30 Use of these lands is limited to public trust uses, including public access and recreation.31 The public trust thus provides an important resource to regulate coastal development that would otherwise obstruct public access to the coast.32
The state's commitment to public coastal access is reflected in Article X Section 4 of the California Constitution, which provides:
No individual, partnership, or corporation claiming or possessing the frontage or tidal lands of a . . . navigable water in this state shall be permitted to exclude the right of way to such water whenever it is required for any public purpose and the Legislature shall enact such law as will give the most liberal construction to this provision so that access to the navigable waters of this state shall always be attainable for the people thereof.33
Accordingly, the Coastal Act has the basic goal of "[m]aximiz[ing] public access to and along the coast and maximiz[ing] public recreational opportunities in the coastal zone consistent with sound resource conservation principles and constitutionally protected rights of private property owners."34
To this end, the Coastal Act mandates that any new coastal development project provide for public access to the shoreline, with a few exceptions (i.e., where there are fragile resources, where adequate access already exists, or where there are no provisions for liability and maintenance of an access way).35
The Coastal Commission has the authority to regulate coastal development through the issuance of coastal development permits.36 It reviews the proposed local coastal programs (LCPs) of local agencies (e.g., counties and cities) and certifies those that are consistent with the Coastal Act.37 Upon certification, the local agency assumes responsibility for issuing coastal development permits.38
All LCPs are required to contain an access component that details the manner and location in which public coastal access will be protected and provided.39This component describes local agencies' public access goals, standards, programs, and other management objectives for their jurisdictions.40 In many LCPs, the most common form of access mitigation for coastal development is the OTD.41
The Coastal Commission still retains regulatory jurisdiction over areas without LCPs, public trust lands, and most major public works projects.42 Additionally, the Coastal Commission has appellate jurisdiction over particular local agency decisions, such as approvals of development between the shoreline and the first public road parallel to it.43
To comply with the Coastal Act's access provisions, the Coastal Commission routinely conditions coastal development permits to mitigate each project's specific or cumulative impacts on public access.44 A typical condition is an OTD, which provides an easement across the landowner's property that would permanently be available for public use.45
For example, development of a shoreline structure on a beach would result in a loss of recreational beach area.46 For such projects, the Commission often requires an OTD to provide an alternate area for public beach recreation.47 Certified LCPs, or the Coastal Commission in areas without certified LCPs, will set standards for the application of these OTD requirements.48
OTDs are recorded legal documents, offering easement interests in private land to government agencies or nonprofit organizations.49 The interest runs with the land, such that subsequent owners are legally bound to the recorded offer to provide for future public access.50
As of November 2016, 750 of the 920 OTDs required by the Coastal Commission since 1974 have been accepted (82 percent).51 Meanwhile, 136 OTDs still remain to be accepted (15 percent) and 34 OTDs have already expired (3 percent).52
The 15 percent of OTDs still outstanding is significant. OTDs provide new trails, stairways, walkways, etc., between existing development so that the public can access the beach or shoreline.53 If these OTDs were allowed to expire, the opportunity to protect public coastal access in these areas would be lost forever,54as with the 3 percent of OTDs that have already expired.
While many OTDs have developed into easements, OTDs are only offers of easements.55 They do not immediately, or even inevitably, become public access easements.56
Rather, the easement interest belongs to the landowner until the OTD is accepted by a government agency or nonprofit organization.57 The Coastal Act requires that the easement not be opened for public use until there is an accepting entity to assume responsibility for it.58This responsibility consists of funding and maintaining the easement in perpetuity for safe public access while protecting private property rights.59
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By law, the Coastal Commission cannot...
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