Malibu homeowners win a fight for free speech
After dealing with trespassers in their backyard, Malibu homeowners Dennis and Leah Seider just wanted to post a simple sign alerting people that public access was permitted only on a portion of the beach while the rest remained private. But because they live in California’s coastal zone, they needed a coastal development permit for something as simple as a sign.
Getting the permit would be simple, they thought. However, it took roughly four years of litigation just to be able to exercise their basic property and free speech rights.
Malibu officials said they could not issue a permit because the Seiders’ sign would describe the boundary between public and private property along the beach—the mean high tide line—something the city believed its Local Coastal Plan (LCP) prohibited. With no other way forward, the Seiders sued the city in federal court, arguing the prohibition on their truthful sign violated their First Amendment rights.
In response, Malibu didn’t defend the prohibition on the merits. Instead, the city blamed the California Coastal Commission (CCC) for drafting the LCP and imposing it on the city. Malibu said the case should be dismissed unless the CCC was added as a party.
But the city was the permitting authority. And trying to shift the blame only served to delay the permitting process.
The case then took a sideways turn when the U.S. Court of Appeals for the Ninth Circuit held that the CCC, not the city, should consider the Seiders’ proposed sign. According to the court, the CCC had jurisdiction because a 50-year-old permit guaranteed 25 feet of public access landward of the mean high tide line, and the proposed sign would “lessen or negate” the effect of that easement.
The Seiders, for their part, didn’t seek to negate public access. Instead, they sought to inform the public where it had additional access rights and where it did not. Being forced to start over against the CCC made that even harder.
Once joined as defendants, the CCC predictably sought to dismiss the case because the Seiders had not yet applied for a permit. But, the district court rejected their effort and allowed the suit to proceed. This brought the CCC to the negotiating table three years after the Seiders sought a permit.
After months of negotiation, the CCC finally voted to allow the Seiders to post a sign stating that public access ended 25 feet landward of the mean high tide line. Commission staff issued its interpretation of Malibu’s Local Coastal Plan that contradicted the City’s and the Ninth Circuit’s. According to the Commission, the LCP permitted truthful signs so long as the signs did not purport to identify a location for the mean high-tide line because that line is not stationary. But, it reasoned that the Seiders were not prohibited from posting a sign that alerted the public that the mean high tide line served as the boundary between public and private lands.
The Seiders’ settlement should bring hope to Malibu residents who might have a substantially easier time obtaining a permit from the city. But a fly in the ointment is that Malibu’s recent attempt to grant more sign permits went sideways before the Commission.
After the Seiders sued Malibu—but before the CCC approved the Seiders’ sign—the City Council voted to repeal the LCP provision. But, all changes to LCPs must be approved by the CCC, and the Commission wasn’t about to let Malibu remove the restriction. Instead, it modified Malibu’s proposal, permitting truthful signs but requiring that “the ambulatory nature of the boundary and the existence and nature of the applicable public rights must be clearly conveyed” on such signs.
While this might sound good in theory, explaining a mean high-tide line on a small sign is nearly impossible.
The Seider settlement allows Malibu to allow its coastal residents to place truthful signs under the CCC’s interpretation of the existing Local Coastal Plan language. Changing the language will only result in even more uncertainty. It took four years of litigation for the Seiders to put up a simple common sense sign. Other property owners should not have to go through such a convoluted process to protect their property rights.
