The Walkway and the Permit: How California Trades Building Rights for Beach Paths

From a Malibu mogul’s nine-foot easement to hundreds of unrecorded offers, the state’s exaction system shows both the reach of regulation and its paperwork

Coastal Exactions in California: The Deal Behind the Beach Path

Much of the public access that exists along developed stretches of the California coast was not purchased. It was extracted. When a coastal owner sought permission to build or remodel, the Coastal Commission often required, as a condition, an offer to dedicate a strip of land for public use. Over decades these offers accumulated into a network of stairways and walkways between houses.

The best-known example is in Malibu. A coastal advocacy group’s report on access in the state notes that a dispute at Carbon Beach running since 1983 was apparently resolved in May 2005 when an entertainment executive opened a nine-foot-wide walkway past his seaside mansion. The easement had been promised as a condition of earlier permits. It took twenty-two years and a lawsuit to become a path.

How the System Works

An offer to dedicate is exactly what it sounds like. The owner records an offer of an easement. It does not become a public way until a government agency or qualified non-profit formally accepts it and takes on responsibility for opening and maintaining it. Offers expire if not accepted, typically after about two decades.

A Coastal Commission inventory for Santa Barbara County, covering vertical accessways acquired through commission actions from 1973 to 2011, lists sites by permit number, some open, some described as future accessways and at least one marked closed.

The Paperwork Problem

The advocacy report includes a revealing detail about administration. In the course of researching recorded offers, it says, commission staff found additional offers not previously logged, and also found cases where permits requiring offers were never issued or had expired.

In other words, the state imposed conditions, and in some instances lost track of them. Easements that owners were required to offer went unaccepted and lapsed. This is not a scandal so much as an illustration. Regulatory conditions are cheap to impose and costly to follow through on.

The Constitutional Limit

The practice has a famous boundary. In 1987 the US Supreme Court decided a case brought by a couple who wanted to replace a bungalow on the Ventura County coast. The commission had conditioned their permit on a public easement across the beach in front of the house. The Court held that such a condition is permissible only if it has an essential nexus to a public harm the project would cause. A demand for lateral beach access did not address the stated concern about views from the road. Without that connection, the Court wrote, the condition was not a valid regulation but an attempt to obtain an easement without paying for it.

A later case added that the burden must be roughly proportional to the project’s impact, and a third extended the rule to demands for money.

The Property-Rights Critique

For libertarians, exactions exemplify what is wrong with discretionary permitting. An owner needs permission for something ordinary. The agency controls the permission. It uses that control to obtain property it would otherwise have to buy. The owner, facing delay and legal cost, usually agrees.

The critique is not that the public should have no access. It is that the cost has been placed on whoever happened to apply for a permit, instead of being spread across the public that benefits. A beachfront owner who never remodels contributes nothing. One who replaces a deck gives up a strip of land.

The Defence

The commission’s supporters answer that beachfront development does burden public access. Houses built shoulder to shoulder wall off the coast from the road. Seawalls built to protect them can erode the public beach in front. Requiring a path between houses is a proportionate response to a real harm, and it has opened miles of shoreline that would otherwise be reachable only by those who own it.

They also note that buying the same easements at market prices along the most expensive real estate in the country would have been fiscally impossible. Exactions made access affordable.

An Honest Accounting

Both points can be true. Exactions have produced access cheaply for the state. They have done so by shifting the cost to a subset of owners and by using leverage the constitution limits. And the administrative record shows that not every exaction became a path.

Alternatives

A more market-consistent approach would rely on voluntary transactions. Land trusts and surf-protection organisations already buy coastal parcels and easements with donated funds. Tax incentives for donated easements exist. A dedicated public fund for purchasing access, financed by user fees from beach parking, would link those who benefit to those who pay.

These tools are slower and require money up front. They have the advantage of producing rights that are recorded, accepted and maintained, because someone wanted them enough to pay.

What Surfers Gain and Risk

Surfers benefit from every stairway. They also have an interest in how those stairways come into being. Access created by exaction can be challenged, can lapse and can be resented by neighbours who then find ways to obstruct it with unlawful signs and locked gates. Access that is bought and recorded is harder to undo.

The walkway in Malibu is open now. It took two decades. That is the cost of the cheap method.

On a Lighter Note

Britain’s planning system attaches conditions to nearly everything. The London Prat finds comedy there in its UK satirical news on planning conditions and UK satirical news about sea views. Bohiney Magazine covers California’s version.

SOURCE: https://bohiney.com/