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May|June 2003
Lowball By David Newman
Political Capital By Brian Montopoli
Justice, Interrupted By Siddhartha Deb
Access Malibu By Benjamin Nugent
A Tree Grows in the Hamptons By Kim Lemon

Access Malibu

By Benjamin Nugent

THE ZONKER HARRIS ACCESS WAY is a path leading to a stretch of ivory sand in Malibu, Calif. Named in honor of the work-shunning hippie from the Doonesbury comic strip, the path is announced by a white sign with psychedelic blue and yellow lettering on a plain metal gate. The gate is open from sunrise to sunset, inviting visitors to walk along sand that is rarely touched by anyone. A brief stroll along the coast reveals more signs, but these say "Private Beach" and are nailed to the decks of large wooden houses. Which signs are telling the truth: the one that extends a warm welcome or the ones that warn trespassers away?

The man responsible for the Zonker Harris is Steve Hoye, the 52-year-old executive director of a nonprofit called Access for All. Hoye wants to open paths to the beach every 1,000 feet along the California coast so that anyone will be able to reach any part of the beach without having to walk a long distance. His campaign has made him no friends among wealthy beachfront owners. "There are some real fierce property rights hawks here in Malibu, people who hate my guts," Hoye said. "Some actually threaten to get their chainsaws out and carve down the signs that say 'Coastal Access.' "

California has 1,160 miles of coast adorned by palm trees, bluffs, and killer waves. In 1976, the state passed the California Coastal Act, making public all of the state's beaches between the water and the mean high tide line. In other words, sand that is touched by the tide on an average day must be public, but sand that stays dry can be privately owned. To prevent an obvious logistical problem—How can beachgoers get to the public sand if access to it is private?—the act allows the state to grant development permits to beachfront owners in exchange for "offers to dedicate." OTDs permit the state (together with a municipality or nonprofit organization) to create and monitor easements that allow the public to pass over private land. Easements may be granted for up to 21 years.

The Zonker Harris Access Way is one of 1,300 easements that California has negotiated. The right-of-way was created 20 years ago by the Coastal Commission, but Access for All went to the state with a management plan and opened the path only last year.

The delay was the result of a 1987 U.S. Supreme Court decision in favor of a Ventura County property owner who had sued California, arguing that OTDs amount to a form of state extortion. The owner wanted to build an addition to his house but didn't want to negotiate an easement. Writing for a 5-4 majority, Justice Antonin Scalia found that under most circumstances OTDs constitute a "taking" of property without just compensation and therefore violate the Fifth Amendment. The OTDs agreed upon before the ruling stayed on the books, but few counties or nonprofits dared to put them into effect for fear of getting sued.

And landowners did sue Santa Barbara in 1999 when it moved to open several OTDs that predated the 1987 decision. But the suit was rejected by California's courts on the grounds that the OTDs had already been negotiated and the time for challenging them had expired. The landowners appealed to the U.S. Supreme Court, which last fall refused to hear the case. That decision came a month after the California legislature passed a law backed by Governor Gray Davis allowing the Coastal Commission, the state agency that enforces the Coastal Act, to take advantage of the OTDs before they expire.

The most famous unused easement in Malibu is known locally as Geffen Gate. David Geffen, now co-chair of Dreamworks, negotiated an OTD with the state in 1983, giving it the right to create an easement on his property. No path was ever built, and Geffen negotiated two more OTDs after the 1987 Supreme Court ruling. The agreements enabled him to add a new pool and servants' quarters to his gray beach house. According to Hoye, when Access for All approached Geffen about opening a path on his property, Geffen together with the City of Malibu sued the organization and the Coastal Commission.

HOYE STUMBLED UPON THE EXISTENCE OF OTDS when he was working as the Sierra Club's director of development for Los Angeles and Orange County in 1998. But Hoye said that the board of the Sierra Club Foundation refused to pursue the easements because they were afraid of getting sued. Most beachfront homeowners can afford a prolonged court fight; their homes go for several million dollars or more. One house that sits near the Zonker Harris is a series of towering glass rectangles hemmed in by deep green shrubs. Another is a palatial Mediterranean-style structure of pastel stucco. A third has a vast wooden deck where three identical fluffy white dogs recently raced about unchecked.

But the resistance to public beaches is not limited to the lucky few who live on the beach. There are other Malibu residents who worry that opening the beaches to the public will attract the wrong crowd—namely, the urban working class from Los Angeles, 40 miles away. Paul Grisanti left L.A., which he described as "way too tough," for the relative calm of Malibu 25 years ago. On weekends, Grisanti, a real-estate broker, leaves his office for the beach. As a member of the La Costa Swim Club, he gains access to a private stretch of sand for only $400 a year. The club is a simple one-story building with an outdoor volleyball court and changing rooms.

Just down the road is a rugged spot where the Coastal Commission wants to put an easement. The club is against the plan, and Grisanti is quick to come up with reasons why. Children of visiting beachgoers "will want to play with the sons and daughters of the members," said Grisanti, wearing crisp tan slacks and an orange sweater draped around his shoulders. "That's all great, until one of them falls off the swing set and sues us." He's also worried that the club's locked bathrooms would create awkwardness. "Our members have keys, but how do they tell a kid who needs to use the bathroom, 'I don't want you to use it'?" Grisanti imagined beachfront homeowners in a similar predicament. "If somebody knocks on your door and asks to come in and use your bathroom," he said, "your first thought would probably be, 'You know what? I saw this on Law & Order, and I ain't going for it.' " That Grisanti segued from bathroom use to a TV show about urban crime suggests the depth of the resistance to public beaches.

"What you have in a place like Malibu is a minority denying the majority what is rightfully theirs," Pedro Nava, a Coastal Commission member, said. "Malibu is miles from one of the largest concentrations of urban population anywhere." He added that Malibu's 27 miles of coastline should be open to visitors from Los Angeles, many of whom do not even have parking space in their neighborhood.

Geffen and other landowners will likely have to make way for visitors. But the fight is not over. In tandem with Geffen, the City of Malibu has gone to the Los Angeles Superior Court to keep the unused easements from opening until the state creates a system for deciding which ones deserve priority. Christie Hogan, the city's attorney, suggested that the list should start with sandy beaches, tide pools, and the best surfing spots. "Certainly," she said, "we want to make sure there's parking, a paramedic in the area, and"—in a nod to the Grisantis of the city—"adequate restroom facilities."

Benjamin Nugent has written for Time magazine and worked in Los Angeles as an associate producer for Jimmy Kimmel Live.

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