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Whose Sand Is It Anyways?: Coastal Commission sues Broad Beach homeowners, fines could exceed $400,000

The 108 homeowners on a toney West Malibu beach face collective fines that may exceed $400,000 as a result of a lawsuit filed by the California Coastal Commission last week.

The Broad Beach homeowners hired bulldozers to move sand from the public tidelands onto an illegal berm, and are new asking the state to forgive penalties for what they contend was the action of a overzealous bulldozer contractor.

A Coastal Commission enforcement officer said the bulldozing of the berm blocked public access, led to fish eggs being washed out to sea, damaged rare sand dunes and flouted numerous permit laws, and placed the blame on the Trancas Property Owners Association (TPOA).

Last week’s lawsuit may be just the beginning. The Coastal Commission has signaled plans to file additional court actions soon over the issue of Broad Beach residents posting “no trespassing” signs, chaining off publicly-owned wet sand, and employing TPOA security guards to chase the public away.

A property-rights watchdog lawyer said he expects the California Coastal Commission to use the threat of fines for the illegal berm to finally quash the Broad Beach owners’ claims to wide swaths of the beach, which is one of the few coastal dune environments left in southern California.

Last month’s bulldozing destroyed incubating eggs from at least three grunion runs, state officials charge. “The damage that was done was extensive,” said Aaron McLendon, a Coastal Commission enforcement officer, in a telephone interview.

“It adversely affected public access – you couldn’t walk up and down the beach,” he said. “You cannot get away with what they’ve done, and these sorts of violations are seriously taken. The fines say don’t do this sort of thing again.”

With the lawsuit filed, owners of the 108 multi-million- dollar beachfront houses are tightlipped, saying they could not comment on the lawsuit.

But in its formal response to the Coastal Commission, TPOA admits a serious mistake was made when a contractor dramatically altered the mile-long beach without necessary permits, and alleges the contractor exceeded his instructions.

The Coastal Commission counters that allegation by noting that a TPOA board member signed off on each day’s work. The suit does not cite the contractor, but asks that TPOA pay a $15,000 per day fine for the three to four weeks that the illegal berm was on the beach, plus a $30,000 fine for each violation of law.

Depending how those fines are calculated, TPOA homeowners could collectively face in excess of $400,000 in penalties.

A real estate law expert said there could be a problem in dividing responsibility among board members and the 108 homeowners along Broad Beach, some of whom may not be members of TPOA.

State officials agree, and as of now the only two homeowners named in the lawsuit are TPOA president Arnold M. Palmer and secretary Winifred Lumsden, who authorized and oversaw the earthwork, officials said.

Palmer is out of the country, and Lumsden would not comment.

“As the lawsuit moves forward, we may find individual people responsible for the berm itself, either setting funds aside for it, or who proceeded with hiring the contractor,” said the state’s McLendon. “As of now, I can’t speculate on which property owners or board members were responsible.”

The state official said the penalties are justified by the damage to grunion, a state-protected fish species. Pepperdine University marine biologist Karen Martin, a nationally known grunion expert, said three high tides’ worth of grunion eggs were moved or covered by front-end loaders as they built and then destroyed the berms in June.

“She found that a fairly large run of fish had occurred but she didn’t find the number of eggs she was expecting,” McLendon said. “Water was hitting the wall and dragging the eggs back to sea.”

McLendon said human beachgoers had a similar experience, and were forced to contend with waves that crashed into and then washed back down the steep berm on what had always been a broad beach, adding that while the grading was bad, the state must punish people who flout regulations and fundamentally change the biology of the shoreline and physical character of the beach.

That may be the TPOA’s biggest legal headache, said Ross Feinberg, an Orange County real estate attorney who is president-elect of the Commercial Association Institute in Washington. “What you’re looking at is the board of directors being responsible,” he said in a telephone interview.

“Unless the board followed the ‘business judgment rule,’ the individual board members or their insurance policy could be liable for the fines,” he said.

That rule would give TPOA board members immunity if they had consulted engineers, officials or other experts who had erroneously told them to proceed without necessary permits from the Coastal Commission, Los Angeles County, City of Malibu, U.S. Army Corps of Engineers and state Department of Fish and Game.

State officials have said that TPOA members knew full well they were in a coastal zone and that any grading of a beach meant that numerous permits had to be obtained, even for emergencies.

In its official response, TPOA admits that the only permit it sought was from the county, which only issued a permit for heavy equipment to drive one time down the sand from a gate at Trancas Creek to Broad Beach.

In a statement of defense, TPOA said sand needed to be piled near culverts and storm drains that had failed during last winter’s massive rains, which washed out a section of Pacific Coast Highway just above Broad Beach.

“The repair work included restoring public access ways where storm damage precluded the public’s use of those access points,” TPOA wrote. “When the repair work was requested, it was believed no coastal permit was required.”

McLendon said that beachfront home owners are well aware that they are in a Coastal Zone in which even the smallest emergency alterations need coastal development permits.

And he is quoted in TPOA’s formal defense as telling residents that the state will press forward in August, seeking a new cease and desist order against Broad Beach residents.

The state contends residents have in years past put “No Trespassing” signs and chains across the wet sand beach far past the apparent high tide line, and hired aggressive private security guards on motorized vehicles to ask the public to leave dry sand that, in some cases, is open to beachgoers.

Last spring, homeowners and the state began negotiations to set a common public beach property line above the high tide line across the hodgepodge of differing easements and property lines. But while McLendon is quoted as praising the TPOA for trying to solve the issue, he noted the voluntary association cannot speak for all 108 landowners.

The offending signs and chains were removed last month, and last weekend a lone security guard on foot was observed patrolling a line of small flags that are well inland from where the controversial west-sand signs and chains were located in past years.

Two weeks ago, the beach was graded back to its original shape by TPOA, this time with permits from the Coastal Commission. Small sand dunes are back in place, but native vegetation on some dunes has been replaced by new ice plant plantings, which are considered an invasive weed by coastal biologists.

A staff attorney for the Pacific Legal Foundation in Sacramento said he expects the Coastal Commission to use the threat of large fines for the illegal beach grading to gain advantage in the beach access talks.”The commission tends to go after people it already has a dispute with,” said Dave Breemer. “”It often gets the land it wants out of the enforcement effort.”

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