Monthly Archives: February 2017

A Wasteful and Damaging Project by the Mountains Recreation & Conservation Authority and California Coastal Commission

About ten years ago, after the success of the Klimt painting case, we were able to purchase a beach house in Malibu.  We searched up and down the coast before finding a narrow 18 foot-wide unit right next to a 150 foot stretch of open beach.  While we were remodeling, our neighbor, actor Alex Rocco (Moe Greene from the Godfather), offered to sell us his unit.  It was an “offer we couldn’t refuse,” and so we combined the two lots into one and built a beautiful home that we’ve enjoyed for summer beach days and parties during the past ten years.

From time to time I get notices from the City of Malibu about hearings on development projects.  I always look at them to see if it’s something near us, but it never was.  So I was surprised when Pam went by our place two weeks ago and saw a big notice concerning a pending development on the fence next to our place.  I either missed or didn’t receive the notice of the one project that really affects our enjoyment of the beach.

Let me start by saying I am absolutely not against development and am also greatly in favor of public access to the beaches.  We really didn’t mind sharing our beach with the public. In fact, the locals who come down from the hills to enjoy an afternoon on our beach make the beach more fun to watch.  Our only problems are with visitors who insist on doing all of the things that are illegal to do on public beaches: dogs, drinking, smoking, nude bathing and barbecuing.

Access to our beach from Pacific Coast Highway has always been very easy.  There’s a small gate that is never locked on the south-east side of the fence and a stairway down to the beach.  So if you can find parking, you can easily get to the beach.  But the beach itself is small and feels very private when you are on it.  That’s really it’s charm, along with a giant boulder in the water that provides endless fun for climbing or diving, or just watching the waves break on it.  The sand on our beach is also a unique feature.  The high tide comes up all the way to the bluff under PCH and cleans the sand every day.  Sometimes the tide brings in lots of sand, other times the beach is all rocks.  The beach changes literally every day.

The best place to sit on our beach is right in the middle, below a little stand built by the locals. It’s the high and dry point, the last to get washed over by the high tide, and it has the best view to watch the kids swimming in the waves on either side of the big boulder. If you are anywhere else, your view gets obstructed by other giant boulders on the beach. So that’s our lifeguard perch and it’s where we put our umbrella and chairs for the day when we are on the beach.

So you can imagine my surprise when I found out that the Mountains Recreation & Conservation Authority (MRCA), acting on behalf of the California Department of Parks and Recreation with the approval of the California Coastal Commission had applied for and obtained a permit from the City of Malibu to remodel our beach, eliminate the existing stairway on the side of the beach and build a new one going right down the middle, landing just where we like to sit on the beach.

On the map above you can see the existing stairs in the upper right, and the planned staircase down the middle.  The existing stairs are going to be removed.  It looks almost reasonable to someone who doesn’t know this beach, and doesn’t understand that the water comes up to where the new stairs are supposed to be almost every day.

Just to give you an idea of how much this beach changes throughout the year, here’s a photo that the MRCA was using, where the sand is at its maximum height and the beach looks beautiful and inviting during a low tide. Below it is a photo (from the side) of the same beach yesterday also at low tide.

The sand is brought in and out with the tides during the year.  Sometimes the high tide dumps sand on the beach, and other times it rips the sand out.  Here’s a photo of the beach with wet sand at a high tide.

See that little dry spot under the green kayak?  That’s where they want to build the new staircase landing.   And here’s what it looked like two hours earlier before the high tide came in.  That high and dry spot where we are sitting is where they want to put the staircase.

So, I’m not at all happy about this new development and I decided that I would try to investigate why this is happening.  Here is where things got interesting.

This project came about as a result of a settlement of a dispute with a developer named Carbonview Limited, affiliated with Oracle billionaire Larry Ellison, which is planning to combine two lots a few miles up the beach at 22224 and 22230 PCH, and push further out toward the sea by 19 feet an existing lateral public access easement, losing about 1,609 square feet of potential public beach access. Below is a photo of the Carbonview lots, and the lateral access easement being modified. In July 2014, Carbonview’s development permit was approved by the California Coastal Commission with the condition that the developer make a “donation of $400,000 dollars to the Mountains Recreation Conservation Authority (MRCA) for the construction of public vertical accessway improvements within the Coastal Zone of the City of Malibu.” Ordinarily, the Coastal Commission doesn’t like taking away public access easements, but in this case, they said “the donation of $400,000 to the MRCA will provide for the enhancement and opening of a new public vertical accessway.” The resolution approved by the Commission stated: “The purpose of the account shall be to construct new access improvements within undeveloped public beach vertical accessways within the Coastal Zone in the City of Malibu, as authorized by the Executive Director.”

The MRCA, the Coastal Commission and Department of Parks and Recreation spent about 12 months working with Carbonview to identify a location to spend the $400,000 on a new vertical accessway.  In August 2015, the South Central Coast District Staff submitted a report to the Coastal Commission concerning the project.  Initially, staff identified two potential sites.  “One was located on La Costa Beach (owned by the California Coastal Conservancy) and it was anticipated that at this location a stairway leading from Pacific Coast Highway down to the sandy beach could be constructed, and a viewing platform and restroom could also potentially be constructed. The second potential site identified was located on Big Rock Beach and immediately adjacent to a 65-foot wide parcel owned and utilized by the California Department of Transportation (Caltrans) as a Vista Point. It was anticipated that this site would be dedicated to the MRCA, and vertical public access improvements, such as a stairway, could then be constructed.”  Beautiful La Costa Beach and Los Flores Beach above and below Duke’s are desperately in need of public access, and the Coastal Commission has long planned to build access points in those areas.  The Coastal Commission recently fined property owners $5.1 million for blocking public access on Los Flores beach, which we can get to from our place only when the tide is very low. The public viewing area at Big Rock also has been on the list for a stairway to provide access down to the beach. But without any explanation whatsoever, these proposed sites were jettisoned in favor of a new site — our tiny beach. When the settlement was announced, the Malibu Press gushed that the new funds “will provide the only public beach access in the three-mile stretch between the access at Big Rock and the ‘East Carbon Beach’ access point.”

Here’s where things get interesting.  In the August 2015 report to the Coastal Commission, no one ever mentioned that our beach already had easy public access, with an open gate and a perfectly good staircase!  The report gives the impression that the $400,000 are going to be used to provide a new vertical accessway to the public.

“The applicant and MRCA staff determined that this site could be opened to public use in a timely manner with relatively few improvements necessary to allow the public to utilize a view area adjacent to PCH as well as the beach area below. The applicant has developed a plan for the construction of the improvements that would allow public access to the site, both at street level as well as access to the beach area on the property. Specifically, the proposed vertical access improvements include the construction of a stairway leading from PCH down to the beach, a viewing area, sidewalk, and provision of shoulder parking along PCH, including one accessible parking space, as depicted on Exhibit 6. As mentioned above, the applicant has coordinated with State Parks and MRCA, and both agencies support the proposed access improvements.”

You’d have to read pages 11-13 of  the report to understand just how deceptive the staff report was. There is a lengthy section on the need for beach access, noting that there is no other public access in Malibu for two miles upcoast and .8 miles downcoast. The impression given is that this development is needed to provide a new public access on this three mile stretch in Malibu.  The deception must have been intentional.  Take a look below at the photo attached as Exhibit 5 to the report. That thick white border covers up the existing staircase on the right side of the beach.

If I had been on the Coastal Commission and was presented with this report, I might have voted for it also.  Who would be opposed to opening up a beautiful new beach to the public?  Here’s the gorgeous rendition of the new beach, omitting the existing staircase and adding the new one down the middle.

So here is what the staff failed to show the Coastal Commission: there already is a beautiful staircase that runs from the street down to the beach.

Here are some guests at a neighbor’s wedding party going up the stairs yesterday.

The gate at the top is always unlocked.  We have public access all the time. That is why the locals love this small beach.  We’re even featured on the Our Malibu Beaches mobile phone app.

California Coastal Act, Section 30001.5 states:

“The legislature further finds and declares that the basic goals of the state for the coastal zone are to: . . .

(c) Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners.”

I am pretty confident that none of the members of the Coastal Commission would have approved the expenditure of $400,000 designated for “new beach access” in Malibu on a project that seeks to remove an existing public stairway and move it 75 feet up the beach to a spot that no one using the beach would ever want.

I’m planning to contact the Coastal Commission and raise this issue with them. It’s disgraceful that $400,000 that was supposed to open up new public access is being used to ruin our already public beach.

UPDATE Feb 10, 2017: This week Jessica Nguyen of MRCA spoke at a meeting of the Coastal Commission to inform them of the permit obtained from City of Malibu, but again failed to mention that public access and stairs already exist on this site.  Watch the video of her speaking at 0:24:20.   I also located videos of the prior hearings.  See August 12, 2015 at 7:27:30 (Carbonview), and July 10, 2014 at around 4:59:00.

UPDATE March 7, 2017: Jessica Nguyen wrote me “Per my voicemail, the MRCA is considering relocating the stairway to the east of the storm drain. Additionally, the City has determined that the project was not properly noticed to the surrounding residents, therefore a new hearing will be held for the project. The date of the hearing has yet to be finalized, but I will let you know when we have a date set up.”

To comment on the project, contact Jessica Nguyen, Mountains Recreation & Conservation Authority, 5810 Ramirez Canyon Drive, Malibu, 90265, Office: (310) 589-3230 ext. 125, Cell: (805) 300-0083, jessica.nguyen@mrca.ca.gov.

UPDATE May 11, 2017: A hearing will be held on May 15, 2017.   Item 5E – Coastal Development Permit No. 16-019 / 20516 Pacific Coast Highway.  The Staff report is available online.    The MRCA has proposed a new location for the staircase.

At the hearing, I voiced my objections to the proposal, principally that the placement of the stairs would take away valuable beach space.  Watch the video.  Item 5E at 44:23.  The Commission unanimously approved the permit sought by MRCA.

Update May 22, 2017.  I filed an appeal of the Planning Commission decision.  Below is the text of the appeal:

Appeal of Coastal Development Permit No. 16-019, approved May 15, 2017 by City of Malibu Planning Commission Resolution No. 17-33 – 20516 Pacific Coast Highway

Background: In connection with a completely separate permit application (Carbonview), MRCA obtained a $400,000 donation “to provide for the enhancement and opening of a new public vertical accessway.” (CCC App. No. 5-84-791-A1, Staff Report, page 2.  See https://documents.coastal.ca.gov/reports/2014/7/Th18a-7-2014.pdf)  As set forth by the CCC, “The purpose of the account shall be to construct new access improvements within undeveloped public beach vertical accessways within the Coastal Zone in the City of Malibu.” (Id. p. 6.)  MRCA has chosen to spend this public money on a small beach that already has public access via an open gate and stairs.  MRCA intends to remove the existing un-permitted staircase on the edge of the property, and replace it with a larger pylon-supported structure.  The proposed staircase will eliminate as much as one-third of the prime beach space on this small beach.  See http://schoenblog.com/?p=1091 for more background.

 Issue on Appeal:  Will the project “enhance and improve the public’s ability to enjoy and access the coastline,” or is there a less damaging alternative that will better serve the public interest?

I. The findings are not supported by the evidence.

Pursuant to LIP Chapters 6, 10 and 12, the Commission made various findings that the proposed development would have no significant scenic or environmental impacts and that “the proposed public beach access staircase will enhance and improve the public’s ability to enjoy and access the coastline.”  These findings were not supported by the evidence.  The evidence presented at the Commission hearing was that the new location of the staircase would significantly impair the accessibility and quality of the beach for the public, while providing little or no improvement in public access and safety.

The MRCA representative stated that the design of the new staircase would eliminated only 1-2% of the usable beach space.  This was false, as her calculations did not take into account the very large boulders on the beach, nor the fact that the high tide reaches the top of the beach, which is frequently stripped of sand and more rocky than displayed in the photo.  In truth, the staircase lands in one of the three most desirable spots on the beach.  No one wants to sit right next to a staircase.  The proposed location essentially eliminates one-third of the area from public use.

The existing wooden staircase and railing, installed by local Malibu residents to allow for public access from the street, is much better positioned to preserve precious space on this small beach.  No study was done by the Commission or MRCA to determine how the public currently uses this beach, especially on the weekend.  (According to the staff report, they only visited the site one time, on Wednesday July 19, 2016). In our estimate, the number of public users per available square feet during the summer weekends is probably already as high as any beach in the area, and certainly much higher than on the large, expansive beaches in Los Angeles and Santa Monica.  Taking away rare space on this very small beach would be devastating to the public enjoyment of the beach.

Therefore, the findings of the Commission are not supported by the evidence and the permit should be rejected on that basis.

II. There was lack of a fair or impartial hearing.

During the hearing, one of the Commissioners asked the Planning Director Ms. Blue, “What happens if we do not approve?”  She answered “Well, you approved it already last year.”  This was a very unfair response, as the prior approval was without proper notice, no objections were filed or considered, and the staff had recommended that the prior approval be rescinded.  Ms. Blue then went on to say that the Commission would have to give grounds for refusing to approve, which of course they could easily have done.  But she put the onus on the Commissioners, and deterred them from taking the necessary steps to reject the permit.

III.   The decision was contrary to law.

The law protects not only public access, but also the use and enjoyment of the beaches of our city.  Coastal Act § 30210 et seq.  Section 30221 states “Oceanfront land suitable for recreational use shall be protected for recreational use. . . ”  Policy 2.1 of the Malibu LCP states: “The shoreline . . . within the City provide a wide range of recreational opportunities in natural setting . . . These recreational opportunities shall be protected . . . .”

This is a rare case where no one is fighting over whether there should be public access.  There is already public access on this beach.  Indeed, this beach has the only public access for miles in either direction, and is already included on the Our Malibu Beaches mobile phone app.  The issue is really just the location of the stairs.  The proposed location would remove public beach space on a very small beach, thereby decreasing opportunities for public use and enjoyment of this beach.  The new stairs would also ruin the natural setting of the beach, and turn the whole beach (just 150 feet wide) into a staircase landing.  The existing stair location, nestled on the edge of the property, is supported by the local residents and neighbors, the people who currently use and enjoy the beach.

The only conceivable advantage of the new staircase is safety, but there have been no findings that the existing staircase is unsafe, or that the proposed improvements outweigh the loss of rare beach space.  Nor has there been a study to determine if there is a less destructive alternative and new stairs can be built in the existing location on the edge of the beach.  (The engineer on the project, Wynn Engineering, refused to discuss the project with Appellant.) The neighbors do not oppose the current stair location.  They only oppose the new location as it will simply ruin the beach for the public.

What is driving this project exactly?  It is important to understand what is happening here. The MRCA received $400,000 to develop “new” vertical public access in Malibu.  Apparently, the MRCA could not find a place to spend the money in time, so they decided to spend it on improving an already public beach.  This improper use of public funds designated for a particular purpose is illegal.  See Save the Welwood Murray Memorial Library Committee v. City Council of Palm Springs (1989) 215 Cal.App.3d 1003 (quoting Roberts v. City of Palos Verdes Estates (1949) 93 Cal.App.2d 545 at 547 (“where a grant deed is for a specified, limited and definite purpose, the subject of the grant deed cannot be used for another and different purpose.”)  Therefore, the project may and probably should be rejected solely on that basis.  This is not a “new” vertical public access point. The public is being deprived of the proper use of the funds, which were expressly donated to increase public access by opening up new beaches, not to remodel the access to an already public beach.

The Appellant would like to work out the issues with MRCA and the Planning Commission, but so far, the attitude has been that the MRCA can do whatever it wants with the property.  That really isn’t true.  This is not a private development, but a public one.  As such, the public has a right to ensure that its interests are protected.  The City of Malibu can and should reject the development application because it actually impairs the public right to enjoy a significant portion of this public beach.  At the very least, the MRCA should be required to consider the impact of the project on public enjoyment of the beach, and determine if less damaging alternatives exist.