Beachfront House Bypasses Coastal Commission

A decision by the Coastal Commission not to intervene in a dispute between Malibu property owners was upheld by the Second District Court of Appeal.

The court affirmed the Commission's refusal to conduct a hearing on a proposed beachfront house that was approved by the City of Malibu but opposed by the next door neighbors. The court also found that a State Lands Commission failure to investigate the project's potential impact on public tidelands was not enough to disturb the city's approval.

In 2004, property owner Jeff Stibel applied for a permit to construct a 3,500-square-foot house and 450-square-foot garage on beachfront property on Escondido Beach Road in Malibu. The project would also include an on-site septic system and a bulkhead on the adjacent sandy beach, as well as the merger of two existing lots.

Daniel Alberstone and Lisa Ogawa, who own a house next to Stibel's property, fought the proposal. They argued the project would violate Malibu's local coastal program (LCP) because it would require construction of a protective device (the bulkhead) and other shoreline stabilization during the 100-year life of the project, and because the merged lot would be smaller than zoning allowed.

The City Council approved Stibel's application in May 2006. Alberstone and Ogawa appealed to the Coastal Commission, but the Commission determined the appeal did not raise a "substantial issue" and refused to hear the matter. Alberstone and Ogawa then sued to compel the Commission to conduct a hearing on Stibel's application. Los Angeles County Superior Court Judge David Yaffe ruled against the neighbors, who then appealed.

Alberstone and Ogawa argued that Yaffe made a number of errors and his ruling was not supported by the evidence. The Second District, however, declined to consider the argument because the appellate court's role in the case was to review the administrative record, not the trial court's conclusions. The court then turned to the merits.

Under the Coastal Act, the Commission must hear an appeal unless it determines the appeal does not present a substantial issue, which is defined as significant question about conformity with a local coastal program. Alberstone and Ogawa argued that the project conflicted with the LCP because it prohibits "land divisions" that could require shoreline protection or bluff stabilization structures. They said the term "land divisions" included lot mergers, and they noted the project included a proposed bulkhead.

The Commission determined that the specific provisions of the LCP in question excluded lot mergers. The Commission which essentially drafted and adopted the LCP on Malibu's behalf had excluded mergers in order to encourage lot consolidation.

"We are inclined to defer to the Commission's interpretation," Justice Patricia Bigelow wrote for the unanimous appellate panel, "because it presents a reasonable interpretation that is in keeping with the purposes of the LCP."

Alberstone and Ogawa further argued the small size of the lot resulting from the merger conflicted with the LCP. The Commission conceded the lot would be of substandard size but concluded the lot size standards do not apply to mergers. Besides, the city had concluded it could not deny economic use of the residentially zoned property. The Commission and city's reasoning was good enough for the court, which determined the Commission had met the intent of the LCP.

The Malibu LCP also requires the State Lands Commission to determine whether a proposed development on the beach or along the shoreline would encroach on tidelands or other public trust interests. When asked for a determination, the State Lands Commission said it did not have time or resources to investigate and instead stated that it "presently asserts no claims that the project intrudes onto sovereign lands or that it would lie in an area that is subject to the public easement."

Alberstone and Ogawa argued the Lands Commission's failure to make the required finding required the rejection of Stibel's application. But the court said that striking the Coastal Commission's approval based on the Lands Commission's response "would be a tremendous waste of time and resources."

The Case:
Alberstone v. California Coastal Commission, No. B202008, 08 C.D.O.S. 15636, 2008 DJDAR 18887. Filed December 29, 2008.
The Lawyers:
For Alberstone: Roland Tellis, Bingham McCutchen, (310) 907-1000.
For the Commission: Hayley Peterson, attorney general's office (619) 645-2540.
For Jeff Stibel: Alan Robert Block, Block & Block, (310) 552-3336.