Beach Wars

In Issue:

Ben Adair parks on the narrow shoulder of a residential street in Malibu, California. We get out of the car and locate our landmark: a blue-and-white sign half-hidden among the branches of an avocado tree. Turning down a road marked “Private,” we come to a metal gate that says, “Right to pass by permission and subject to control by owner.” It looks locked but isn’t, so we twist open the knob and walk through.

“I feel a little naughty doing this,” I tell Adair, a 43-year-old radio producer who also co-owns a boutique software company called Escape Apps. We stroll along a row of cliffside houses, and he reminds me that what we’re doing is perfectly legal. “It is private property,” he says. “But there’s an easement, so we’re allowed to use it.”

We come to a shady plaza with wooden Adirondack chairs overlooking the Pacific. Climbing down a staircase, we reach Lechuza Beach, which is as stunning as Adair had promised. Bougainvillea and ice plant dapple the 75-foot bluffs. Gulls perch on rock formations that rise from the waves. Two young men toss around a football, but otherwise this state-owned beach is nearly deserted on a sunny Martin Luther King Jr. Day.

“Check this out, man,” Adair says. “It’s a beautiful day in January, a holiday, and you’ve got the beach to yourself.”

What enabled us to find this hidden, idyllic stretch — the scene of legal and political skirmishes since the 1970s, when homeowners installed metal gates without a state permit — was a smartphone app that Adair developed in 2013 with writer Jenny Price. California’s 840-mile coastline, from the high-tide mark down to the ocean, belongs to all of its residents. But reaching those beaches, especially in affluent Malibu, can be daunting for someone who doesn’t know where the access points are, or can’t distinguish the counterfeit no-parking signs from the real ones. That’s where the Our Malibu Beaches software proves helpful: “It gives people the tools,” Price says, “to use these beaches that belong to us.”

Price hopes the 42,000 people who have downloaded the app will help prevent wealthy beachfront owners from treating the coastline like their own “private Riviera.” She and Adair also hope the app will protect those owners by advising visitors where not to walk. Though the duo has no plans to expand into other regions, the California Coastal Commission is independently releasing its own statewide app, developed by former Facebook president Sean Parker as restitution for throwing a lavish wedding at Big Sur without a permit.

But the new technology has triggered a backlash from some homeowners. They worry that it will attract, as one resident told me, “yapping dogs and screaming children,” along with their litterbug parents, to beaches that are ill-equipped to handle more people.

Underneath these conflicting views lie deeper questions that echo far beyond Malibu: Who owns America’s coastlines? How much access does the public deserve? Does buying an expensive waterfront home guarantee quiet and privacy? Must property owners accommodate strangers who can only reach the surf by cutting through private land? Communities from California to Maine are struggling with these issues, which are rooted in almost 1,500 years of legal history. The debate triggers emotional reactions on both sides as homeowners’ wish for tranquility butts up against the public’s right to enjoy what — in most states, at least — is legally everyone’s.

Lechuza Private Property sign

Lechuza Beach private property sign (Jenny Price/EscapeApps.com)

Lechuza Beach Entrance with misleading sign

Read ’em and weep: In California there are no private beaches, yet beachfront property owners around Lechuza Beach in Malibu try to scare off visitors with menacing warnings of dubious legality. (Jenny Price/EscapeApps.com)

The Roman Emperor Justinian laid the groundwork for modern beach access when he declared in the sixth century, “By the law of nature these things are common to mankind — the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings.” This principle — that we collectively own the coast — found its way into the English, French, Spanish, and Mexican legal systems, which in turn inspired American law.

But every state interprets the principle differently. Most extend property rights to the high-water mark, a few to the low-water mark. Some allow the public to walk across private property for recreation; others restrict those easements to “fishing, fowling, and navigation.” Every year new questions arise. Do scuba lessons constitute “navigation”? Can the government require an easement in exchange for issuing a building permit? When a hurricane rearranges the shape of the beach, does the public’s right of way move too? If so, what happens to houses sitting in that new right of way?

And so, across the country, the battles rage.

In Massachusetts — where the law particularly tilts away from public access — residents of Harwich on Cape Cod are sparring over whether several homeowners can claim exclusive use of Bay View Beach, which has widened by hundreds of feet over the past century because of the construction of a tax-funded jetty. State Attorney General Martha Coakley has said that 200 years of court rulings favor the private property owners — and last April, Harwich’s selectmen abandoned their claim to the beach. A lawsuit between beachfront and back-lot owners continues.

In New Jersey, where some seaside towns use parking restrictions to keep non-residents away, conservation groups like the American Littoral Society and Surfrider Foundation have asked state lawmakers to offer shoreline-protection funds only to municipalities that improve public access.

And in California, venture capitalist Vinod Khosla was rebuked twice last fall for cutting off the only road to Martin’s Beach near Half Moon Bay. The beach is surrounded by dramatic cliffs and has been a favorite spot for surfers, smelt fishermen, and sea-lion watchers. Before Khosla bought the land in 2008, the previous owner charged a small entry fee and operated restrooms and a general store for visitors. Khosla, by contrast, locked the entrance gate and hired private security guards to enforce his no-trespassing sign. In September, a state judge delighted beach lovers by ruling the billionaire had violated the state’s Coastal Act and ordering the gate unlocked. The following week, Gov. Jerry Brown signed a bill directing a state agency to negotiate with Khosla for a public easement or right of way. If negotiations fail, the state may acquire access through eminent domain.

Still, the most famous battleground is Malibu — because of its scenery, its glamorous and wealthy residents, and its starring role in dozens of surfer movies. In one well-known case, music and film producer David Geffen, along with the city, sued the Coastal Commission in 2002 to prevent the opening of a public walkway connecting the Pacific Coast Highway to well-heeled Carbon Beach. Geffen had consented to the easement across his land when he received a construction permit in 1983. The walkway sat behind a locked gate for almost two decades as state officials looked for a nonprofit group to manage it. When they found one, Geffen charged the state with failing to perform an adequate environmental review. He also questioned whether the managing organization was up to the task financially.

Geffen dropped his lawsuit in 2005. Today, during daylight hours, anyone can enter the beach and stroll past palatial homes designed by celebrated American modernist architects Richard Meier and John Lautner.

"This is our backyard. How many other people have to have their backyards open to the public?" - Wendy Wolman Ledner, beachfront property owner.

Yet those who want to open Malibu’s beaches cite ongoing problems. Most of the accessways acquired by the Coastal Commission remain closed. Owners discourage parking with traffic cones, homemade signs, and illegal curb cuts. They post misleading directions along the beach about where the public may walk. At Point Dume Nature Preserve, a state park with 200-foot volcanic cliffs, visitors compete for about 10 parking spaces. And face-to-face confrontations persist. “I still occasionally hear about harassments,” says former Coastal Commission chair Sara Wan, a Malibu resident who was threatened by security guards, then approached by five sheriff deputies, for sitting on a public beach in 2003. “I hear about home-owners who come out and chase people off the beach.”

Most recently, in December a development firm agreed to stop charging a $20 walk-in fee to access the beach below its Malibu restaurant and mobile-home park. The Paradise Cove Land Co. also agreed to open a pier and stop banning surfboards after the Coastal Commission threatened it with $11,250 in daily fines. The company will still charge $40 for parking, though.

Some residents are candid about wanting outsiders to stay away. “I don’t see that every beach has to be open,” says Wendy Wolman Ledner, who is retired from the film and television industry. The public, she says, brings trash, noise, and unsupervised children who injure themselves, turning beachfront owners into first responders. They drape their towels over private decks, she says, and knock on residents’ doors when they need toilets. Ledner believes they’re better served by large county- and state-run beaches that have lifeguards, bathrooms, and parking lots. “If I weren’t one of the chosen — and please understand that I recognize I am very fortunate — and I had to get my water fix, I’d go to a public beach,” she says. “This is our backyard. How many other people have to have their backyards open to the public?”

Jenny Price, who co-developed the mobile app, says there’s a flaw in this argument: In California, the wet-sand beach is not the backyard of the adjacent landowners. “It’s kinda like the people who live next to Central Park saying, ‘You know, this is so close to our house and people leave trash here, so you really need to close off this park.’ People can live in a gated community and not have to deal with the public. But if you want to live next to the beach, that’s a really important public space, and you’re going to have to share it.”

Waves crashing on beach at Point Dume Nature Preserve

A beach too far? At gorgeous Point Dume Nature Preserve, would-be visitors must compete for a handful of parking spots. (Shutterstock)

Because they tap into big issues of property rights and social equity, and because so much is at stake for both sides, beach-access battles can divide communities and chill old friendships. That’s what happened in Kennebunkport, Maine, where beachfront owners sued the town to establish who controls a two-mile beach called Goose Rocks.

Unlike California, Maine allows residents to own property down to the low-tide line, and only grants automatic easements for “fishing, fowling, and navigation.” Neighbors or the general public can sometimes earn access for recreation, too — it’s called a “prescriptive easement” — by using the sand openly, continuously, and without explicit objection from the owner for 20 years.

Goose Rocks has been the site of many softball games, swimming lessons, and sand-dollar hunts; one traveler’s diary called it a “tourist resort” as early as 1870. A slice of the beach is owned by the town and a nonprofit conservancy. But much of the recreation has taken place on privately owned sand behind people’s houses, where beachfront owners mingled with back-lot residents and out-of-towners. “I never asked permission, was never given permission, never thought there was any necessity to ask for permission,” Richard Driver, a retired attorney who started coming to Goose Rocks in 1970 and now owns a house several blocks from the water, testified in a 2012 trial.

“It was kind of a secret beach,” says Robert Almeder, a retired philosophy professor who began vacationing there in 1979 and bought a beachfront house in 2005. “It was nice to see people playing on it.” But over the past 10 years, he claims, more people started arriving, and with them came noise, firecrackers, and tents for overnight camping. Hostilities reached a head in 2005 when a beachfront owner tried to order one of her back-lot neighbors off the sand. He refused to leave and police declined to intervene.

“If the right to private property means anything,” Almeder says, “it means you have exclusive control to determine how that property is used.” That includes the “freedom to go up and say: You need to leave now.” In 2009 he and some beachfront neighbors sued Kennebunkport to establish their ownership and property rights.

Back-lot residents felt blindsided by the lawsuit. “I have invested, and my neighbors have invested, tremendous amounts of money into this community,” Driver testified. “We live here, we love this place, and these selfish people come along. … All of a sudden a few of them decide, ‘Well, we want to restrict the beach.’” As hard feelings mounted, Almeder recalls neighbors saying, “‘I can’t be your friend anymore.’”

The town sided with the back-lot owners. It claimed that a century’s worth of recreational use had earned the public a prescriptive easement. After a two-week trial, a local judge agreed and declared Goose Rocks open to the public. In February 2014, though, the Maine Supreme Court overturned the 2012 ruling, saying the town failed to meet the state’s tough standard for obtaining an easement and that the lower court had gone too far in expanding the public’s rights. The high court cited Maine’s tradition of encouraging landholders to be generous with public use in exchange for having their property rights respected.

In December, though, the court authorized town attorneys to argue for beach access on a parcel-by-parcel basis. The lower court, which will hear those arguments, also still has to hear a claim by Kennebunkport officials that the town received title to the beach by royal grant in the 1600s and never relinquished it. For now, then, Almeder and his fellow plaintiffs have the right to evict others from their property.

No matter how the Goose Rocks case shakes down, no one believes it will settle the overarching question of who owns the beach, in Maine or anywhere else. “We’re going to keep litigating these on a case-by-case basis,” says Adam Steinman, a Portland attorney who represents the Surfrider Foundation, a leader in the national effort to improve public access. The beach, he says, “is a unique important resource, a public resource. If that resource is in control of the private few who stand to profit monetarily and socially by excluding the public, they’re going to do so. But that isn’t the way it’s supposed to work. Wherever beach access is at issue, we’re going to continue to fight for those rights.”

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  • This debate is fascinating and really important and does not apply only to beach front. As I see it, there are several dimensions. The public/private dimension, aspects of local governance, the effects of wealth concentration and the 2 speed society it creates. There is a responsibility, of both State and the public, to fight back any attempt to make public property stay public. But there is also a responsibility for users to take care of it, and if they don’t know how to, to follow simple rules that are put in place by those who do know, because they live there and care for the space. This is very different from feeling you “own” the place, and is what I would call a governance question.
    I’ve seen this in fisheries in the french Med, for example, where for 10 centuries, a local fishermen guild has created rules which apply to everyone harvesting fish, even new entrants which are not from the area, to help share this resource without conflicts. Thy also interface themselves with recreational fishers, tourists, transportation, etc. This only works if there is a recognition of the State, which makes these rules enforceable to third parties. In this case, the fishers have earned the authority to make the rules because they have proven that they can share the public resource in equitable ways. Their rules apply to all because they are indeed stewarding a public resource.
    Yet, today, they might loose access to land, because their harbor is replaced by a marina for yachts and sailing boats as their village/coast is flooded by tourism developments, or masses or retiring people, or luxurious real estate for secondary houses… real estate becomes so high priced that taxes are too high to pay to keep a dock, which is another phenomenon linked to the same issue… How do we use public spaces in a way that respects and integrates the different claims to use that resource, specially when concentration of wealth on one side, and access to radically changes the panorama…how do we create/ promote the feeling of collective ownership of public resources and the corresponding behaviors? Will we ever be able to think or our planet earth (I should actually say our planet ocean) as a common public resources and would that finally allow us to manage it well? So far, waves and waves of privatizing everything from land to mountains, to forests to fish does not seem to hold the keys of success… Let’s hope the beaches, these very thin lines between ocean and land, can teach us some lessons…

  • meri ratzel

    Working waterfront access is an issue for all New England coastal residents. Discrepancies abound for not only beach goers – but shellfishermen in both Maine and Massachusetts.
    On the Cape where sand accretion is a dynamic process – we are losing entire public beaches, town parking lots, etc. Ballston Beach in Truro for example fell claim to the sea this year due to storms this past winter.
    This past year the Park Service proposed closing off the tidal flats near Monomoy Island to protect a wild tern population. The National Seashore which stretches along the outer arm of the Atlantic side is entirely managed by the National Park Service. Nearly all my friends paid their college educations clamming in those areas. Many returned with degrees in biology, sociology hoping to start young families here on the Cape. Ironically, some have turned to fishing for lack of work in anything other than seasonal tourism. The Park Service as well – brings in numbers of people from “away” to fill NPS jobs each summer.
    What isn’t mentioned in the article is how Massachusetts towns are responsible for managing their tidal areas. In some cases the municipality can lease a small percentage for aquaculture. This will become more and more of an issue as we see more fishermen leaving wild capture and turning to farmed aquaculture to provide the nation’s seafood. It’s also misunderstood how many people here go to the resource for access to local food.
    The debates will continue and intensify until an equitable solution is resolved for the rights of people who live /work on the coast/at sea that permits them to exercise their livelihood. I often hear that leasing and private property management will resolve the debate; whereas I believe it is the role of state government to manage access in a fair and equitable fashion. If we privatize all our public resources, where is the accountability to people who live on the coast. Will we appeal to shareholders? Private property rights on public land are an unjustifiable solution for the people that live here.
    How these areas will be managed amongst a number of political policies is yet to be seen. Will it be ocean planning, coastal zone management, town administrations, regional commissions, federal restrictions, state governments? Where exactly do we position ourselves to be heard? Exactly what kind of employment is proposed for people denied access to working waterfront in favor of seasonal tourism?
    Truly, if one were concerned for the conservation of coastal ecosystems, would they suggest park visitors trampling the dunes of our barrier beaches a wise solution to protecting the beaches at all? I doubt Thoreau or Henry Beston would have thought so.

  • Betsy MacMichael

    Interesting article, Barry. It’s good to hear both sides although it is difficult for me to feel empathy for the “chosen”, term used by the one owner rationalizing the sense of entitlement she seems to feel. Now I’m curious to update myself on Hawaii’s approach to this.