The saga of public access to a beach adjacent to entertainment mogul David Geffen's house in Malibu has apparently concluded, with public access secure.

In mid-April, Geffen agreed to drop a lawsuit against the Coastal Commission, the Coastal Conservancy and Access for All, a nonprofit entity formed to accept beach easements. Ten days later, a sharply divided three-judge panel of the Second District Court of Appeal refused to let Geffen's neighbor on Broad Beach intervene in the lawsuit. Finally, on May 30, an easement between the Pacific Coast Highway and Carbon Beach opened to the public. (Two days later, Broad Beach property owners engaged in a similar public access dispute started a massive grading project that piled up eight-foot-high sand dunes, leaving the public with little beach to visit. Whether the grading was legal is subject to debate.)

As is so common in Malibu land use disputes, the controversy here has lasted for more than two decades. In 1983, Geffen applied for a permit from the Coastal Commission to build a beachfront house. The owners of a house next door, the Heidt family, opposed the application, but the Coastal Commission approved the permit. Among the permit conditions was a requirement that Geffen grant an “offer to dedicate” (OTD) a “vertical” easement between the highway and the beach. Geffen signed the OTD for an easement within an 18-foot-wide strip between his planned house and the Heidts' property.

Under the Coastal Commission practice, however, a dedication does not occur until a public agency of some sort accepts the offer. Years passed without a public agency stepping forward to accept the easement on Geffen's property. Meanwhile, Geffen installed a locked gate.

In January 2002, the Coastal Commission, the Coastal Conservancy and Access for All signed an agreement authorizing Access for All to manage the vertical easement, as well as three “lateral” easements along the beach that the Commission had required as part of other permits granted to Geffen in 1991 and 2000. Access for All then recorded a “certificate of acceptance” of the OTDs with the Los Angeles County recorder.

Six months later, Geffen and the City of Malibu (which later dropped out of the litigation) sued the coastal agencies and Access for All, alleging that Access for All's acceptance of the OTD was illegal and unconstitutional for many reasons. In December 2002, the Heidts asked to intervene in the litigation. They argued that they had never applied for a coastal development permit, received no benefit from the permits granted to Geffen, and received no notice of Access for All's acceptance of the OTD. Their house, they said, is less than 20 feet from the public access.

Los Angeles County Superior Court Judge David Yaffe, who issued numerous early rulings against Geffen, refused to let the Heidts intervene. They appealed but still were not allowed into the litigation. Shortly before the Second District issued its ruling upholding Yaffe, Geffen agreed to drop the lawsuit, open the locked gate and reimburse the state $300,000 in fees and costs.

The Second District's split decision turned largely on interpretation of Simpson Redwood Co. v. State of California, (1987) 196 Cal.App.3d 1192. In Simpson, the court permitted Save-the-Redwoods League to intervene in a quiet title action filed by Simpson Redwood. The lumber company was arguing that it actually owned parcels within the boundaries of Prairie Creek Redwoods State Park. The court allowed the League into the legal proceedings because the League was instrumental in creating the park (it had donated some of the land), the League's reputation and integrity would suffer if Simpson gained control of the land it sought, and because the League's interests were different from the state, whose interest was largely financial.

The Heidts pointed to the Simpson court's decision that a “substantial probability” of the League's interest being affected was enough to permit intervention. But the court majority looked at Simpson differently.

“The League's interest was also 'direct and immediate' because if Simpson were to prevail on its claim of ownership, the loss of public parkland would immediately damage the reputation and integrity of the League as a conservation organization,” Justice Robert Mallano wrote for the court. “In contrast, if defendants [Access for All] prevail in this case and the public accessways are opened, there are no immediate consequences because the Heidts can only speculate that members of the public will trespass and litter on the portion of the beach that the Heidts own and thereby affect the quiet enjoyment of their property. … [T]he possibility of what some ill-mannered citizens might do cannot create an entitlement for landowners up and down the Malibu coast to interject themselves into every dispute regarding the right of public access to the beach.”

Somewhat ironically considering Geffen's dismissal of the lawsuit, Mallano continued, “[I]t may be readily gleaned from the record on appeal that Geffen has been an able advocate of his and the Heidts' position in attempting to prevent public use of Geffen's easements.”

Mallano was joined in his opinion by Los Angeles County Superior Court Judge Steven Suzukawa, sitting by assignment on the Court of Appeal.

In a dissent, Justice Miriam Vogel said that Simpson provided a basis for allowing the Heidts to intervene. The Heidts' interest in the use of Geffen's property and the OTD “is substantively indistinguishable from the League's interest in the dispute between Simpson and the state,” she wrote.

Just as the state could not adequately protect Save-the-Redwoods League's interest, Geffen cannot protect the Heidts' interest, Vogel added, writing, “[T]he outcome of Geffen's lawsuit will determine whether and to what extent the Heidts' property is subjected to the burdens attendant to the OTDs given by Geffen, not by the Heidts. As the Heidts tried unsuccessfully to explain to the trial court and to my colleagues, it is this difference that compels rather than defeats intervention.”

The Case:
City of Malibu v. California Coastal Commission, No. B171650, 05 C.D.O.S. 3468, 2005 DJDAR 4723. Filed April 25, 2005.
The Lawyers:
For John and Mary Ann Heidt: Dean Dennis, Hill, Farrar & Burrill, (213) 620-0460.
For the Commission: Daniel Olivas, deputy attorney general, (213) 897-2705.