Tuesday, October 17, 2006

More on the Baffling Boundary Trees

or LOOK BEFORE YOU LOP!

A commenter writes that a tree overhanging her dock was causing a concern it might fall and damage the dock. She had trimmed overhanging branches before, and the neighbor had never complainted. So she thought since the tree leaned her way, if was ok to cut it down.

Whoops! The neighbor has now taken her to Small Claims court, where the damage limit is up to $7500.

What should she do? She thinks the trunk might actually have been on the property line; if so, she may be liable for only half the value of the tree, since she would be responsible for half its upkeep. If it was truly in danger of falling and causing damage, its value would be lower and its hazard potenial higher. Too bad she didn't have it assessed by a consulting arborist before taking matters into her own hands.

Nevertheless, it is not too late for her to get expert advise. She can still have a consulting arborist assess the situation. Does she have photos of the tree before she cut it down? Is there any wood left that can be evaluated for disease or other stressers that may have devalued the tree?

Another step may be to have a survey done to determine if it was truly on the property line. All of these things can be costly however, so she may want to negotiate with the neighbor over the value of the tree and cost to replace with one that won't overhang her dock.

The moral of this story might be summed up as "Look before you Lop." In the long run, you can save time, money and your relationship with your neighbor if you get all the facts and are willing to work things out first.

Friday, September 15, 2006

PROPOSITION 90 IS WOLF IN SHEEP’S CLOTHING

Eminent Domain Reform Bill really “Taxpayer Deception” Bill

No one wants their family home or small business uprooted so that some developer or mega corporation can move in. Nor does this happen very often. But to hear the carping of the proponents of Proposition 90, the so called “Protect our Homes” initiative, this is a daily occurrence that must be diligently guarded against.

Not so. To be sure, there are abuses. Last year’s Kelo case in New London Connecticut, in which the Supreme Court upheld the Town’s use of eminent domain, the power of a governmental agency to take private property for public benefit, to take modest single family homes for the purpose of putting in a pharmaceutical factory under the rationale that the local economy would get a much needed boost, being the most famous.

We can find some right here in the Bay area. The once culturally diverse and thriving Fillmore District was transformed into the Western Addition with many a politician’s pocket lined in the process. The popular Marin City Flea Market is now the site of a dreary and underutilized shopping mall. And in Oakland, small auto repair and tire shops are scheduled to be replaced by more upscale retail operations. All to boost economic development under the government’s redevelopment powers.

If our legislature had acted in the wake of Kelo and passed its own laws, modifying the definition of blight and defining what is and what is not a public benefit, we might not see Proposition 90 on the ballot this November. But it didn’t act, and so the vacuum was filled by an eager band of property rights advocates headed by New York developer Howard Rich. Rich and his friends are stumping all over this nation with their “reform” message. And fearful homeowners are falling for it, often to their dismay, when the true costs of “reform” are revealed.

Think we’ve got problems now? If Proposition 90 goes into effect, no neighborhood, family farm or community will be safe from developers keen to squeeze every cent out of every square foot of property they can get their hands on.

Just ask our neighbors to the north. Oregon’s Measure 37, passed in 2004 as eminent domain reform, has resulted in the wholesale gutting of what were once the strictest environmental protections and sound planning practices in the nation.

Besides requiring that no private property be taken for purely economic benefit, Proposition 90 contains the following clause:

“Except when taken to protect public health and safety, ‘damage’ to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of any access to private property, and limitations on the use of private air space. ‘Government action’ shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation.”

This clause allows any landowner to sue any governmental agency for any action which they claim devalues their land. This would include such mainstays of good planning as downzoning, restricting the use of airspace and zoning that prohibits mining or other environmentally dangerous activities. This means that laws restricting heights of buildings to preserve sunlight or views or to maintain historic character may be fair game under this law, according to the California Legislative Analyst’s office.

And the law is not limited to real estate but could apply to any “property” including liquor licenses (so there go laws restricting liquor stores near schools), your good name as a consumer (those lists maintained by your utility and credit card companies are property after all) and a myriad of other intangibles not generally considered property under standard land use laws.

In Oregon, which used to have some of the strongest environmental protections and smart growth practices in the nation, Measure 37 has threatened to cost taxpayers millions in lawsuits against regulations that property owners claim devalue their property. The result has been that local agencies, strapped for the cash to defend these regulations, have caved in to developers allowing massive residential and commercial developments, including mining operations, where strict regulations previously protected the environment and the residents of the State.

These measures trot out sympathetic faces to advertise their benefits, the farmer whose land was taken for development, the tire store operator whose shop was replaced with a shopping mall, the grandmother whose lifelong home was seized so that a drug company could relocate there. No one doubts there are abuses of redevelopment and eminent domain laws. But Proposition 90 is not the answer. So far it has been opposed by major environmental groups, the League of Women Voters, League of California Cities and many major newspapers.

But then so was Oregon’s Measure 37. It still passed owing to the false and misleading propaganda those who favor it blast out on the airwaves. Major players besides Mr. Rich and his band of merry developers are the Republican Party and the Libertarian Cato Institute. Big development money is expected to hide its ugly mug behind sad faces of displaced homeowners or actors portraying them.

You know the drill: “I never though this could happen in America. The government came and took my family home, the one my grandfather built with his own two hands. And they’re putting up a giant paper mill that will pollute our river. They say it’s for jobs and economic benefit of our community. I say it’s big government run amok. We need Proposition 90 to protect our homes.”

Ok, I invented that ad myself, but you get the drift. The developers and big business will too, so expect those kinds of ads to play this fall. The irony is, Proposition 90 is actually going to make it easier for the polluting paper companies to build in our State if we don’t stop this wolf in sheep’s clothing in November.

Dotty E. LeMieux

Dotty E. LeMieux is a land use lawyer and political consultant in Marin County. She can be reached at coastlaw@earthlink.net

A version of this article appeared in the Marin Independent Journal on 9/14/06

Tuesday, August 22, 2006

TROUBLE ON THE BORDER

By Dotty E. LeMieux

No this isn’t about immigration or the Israeli-Palestine question. The border is closer to home and one that affects all of us as homeowners.

It’s the boundary line between you and your neighbors, and it has been scene of as many pitted battles as any international border between warring states.

Simple as ivy on the wall or water under the fence, or complex as dual ownership of boundary trees or uncertainty over where the property line really is, these spats can turn into deadly feuds, reminiscent of the legendary Hatfields and McCoys of West Virginia and Eastern Kentucky Hill Country.

Although neighbor battles don’t usually result in bloodshed, they can be lethal for trees, shrubs and other vegetation, as many hapless property owners have learned.

“The Fruit of the Poison Tree”

Any one who has experience with Criminal Law knows that expression coined to cover information gathered in an illegal search or seizure. In the context of neighbor disputes, it can often be quite literal. Neighbors have been known to spike trees whose overhanging limbs dropped debris into their yard with herbicides, to sprinkle poison over fences to kill neighbors’ prized azaleas and even to lob strychnine laced hamburger to quiet a barking dog.

These acts are all illegal, and can result in severe penalties, possibly even criminal sanctions.

More common are the cases of lethal wounds to encroaching roots or overhanging limbs. If your neighbor’s tree is overhanging your property or its roots pushing through the fence and surfacing under your garden walk, there are measures you can take, short of murder.

Root and branches may be trimmed to the property line so long as the trimming does not damage the structural integrity of the tree. You need a trained professional to assess this. Do it yourselfers should proceed with caution.

As I always advise my clients, talk to the neighbors first; they may not be aware that their beloved pine tree is driving you crazy with windfall and pine needles.

Trees that Straddle the Fence

A situation that sometimes occurs is that of trees whose trunks are on both sides of the property line. These are known as boundary trees and pose unique problems, since each neighbor is mutually responsibly for their care and upkeep, and responsible for any liabilities.

Problems arise when neighbors disagree about the care of a boundary tree. When one neighbor’s view is blocked by a rapidly growing tree, while the other values the privacy the tree provides, an impasse is often the result. Neither neighbor can take unilateral action. If a tree is diseased and threatening to fall on one neighbor’s house and the other neighbor refuses to have it removed, the first neighbor may be forced to sue the other for his half of the cost.

Get a good appraisal of the health of the tree and cost to remediate the problem or remove the tree. Think about panting replacements that you and the neighbor both choose. If you go in with well developed information and a plan to keep a good relationship with your neighbor, chances are he will be more amenable to your desires, especially if you offer to pay more than your half of the cost.

The Case of the Missing Boundary Line

You buy an older house in a nice neighborhood with the help of a reputable realtor. You have your deed, the description of your land and the 1942 subdivision map. You decide to repair the sagging wire fence on the property line with a nice redwood plank one. You start putting up your fence posts, only to be greeted with a shout of protest from your neighbor. What’s happening? He just had a survey done to determine the setback so he could enlarge his home, and guess what? What you thought was the property line, wasn’t.

“But” you sputter, “My realtor said this fence marked the property line.” Thought is the operative word. Unless you have a survey of your own showing conclusively that the fence does mark the line, you may be out of luck. The lesson? Don’t rely on out of date subdivision maps. Make sure you know just where your property starts and ends, on the ground, not on a map.

Wandering Cats, Dogs and Vegetation

Your neighbor’s overgrown Tom cat Fluffy has taken to stalking your own Foo Foo, who likes to preen herself in the sun, but now is forced to take refuge in the house whenever that mean old Fluffy comes prowling around. And he doesn’t just say hello either; he caterwauls and leaves messy calling cards. You complain to your neighbor and demand he do something about his wayward pet. But he ignores you, shocked that anyone would consider his precious Fluffy less than loveable.

Meanwhile, the neighbors on the other side leave their home under the protection of Spike, a yappy little teacup sized dog whose constant shrilling is driving you to drink.

Not only that, the Ivy they planted as an easy to maintain border is now enveloping your side of the fence, threatening to strangle the wisteria and honeysuckle you’ve been cultivating.

What is a hapless homeowner to do? First check your town’s cat and dog ordinances. Many Towns and Counties have ordinances restricting the number of cats or dogs that may be kept, noise and nuisance ordinances. There are also ordinances providing sanctions for “dangerous” dogs. And mediation is always an option. The County of Marin has a pet mediator, just for these occasions. There is not, to my knowledge, any plant mediator, but maybe there ought to be.

The ivy can be cut back by you to the fence line and if all of these problems persist, consult an attorney specializing in neighbor law or check with the excellent Nolo Press book of the same title. (Go to www.nolo.com to see about ordering it and other excellent self-help legal guides.)

A Note about Noise

Neighbors and noise go together like picnics and ants, summer and sunburns. Unless you live a long way out in the country miles from the nearest human habitation, you’re going to get noise pollution. Chain saws, weed whackers, children’s parties, loud stereos and barking dogs come with suburban life.

But there’s no reason to suffer in silence. Again, talk to the noise neighbors, nicely. Keep your voice low so they’ll get the message. And if they don’t, there are laws that regulate the noise level in neighborhoods.

An example of noises to be avoided is contained in the San Rafael Municipal Code, section 8.13.030 (Loud or unusual noises prohibited):

“No person shall maintain, emit or make, or cause, suffer or permit to be maintained, emitted or made, any noise or sound produced by human, animal, mechanical or other means, which by reason of its raucous or nerve-wracking nature, shall disturb the peace or comfort or be injurious to the health of any person or person”

That just about says it all. Wracked nerves, disturbed peace and neighbor issues generally are the stuff of local law enforcement daily life. Just read the sheriff’s calls in small town papers like the Pt. Reyes Light and you’ll see that you are not alone win having Troubles on the Border.

Dotty E. LeMieux is an attorney specializing in tree, neighbor and environmental law in San Rafael. She may be reached at coastlaw@earthlink.com

Published in Marinscope papers, real estate section, August, 2006

Tuesday, August 08, 2006

Practical Politics

PRACTICAL POLITICS CLASS NEARS

As many of you know, besides practicing land use law, I work as a political consultant. Sometimes these two roles go hand in hand. Anyone who's been involved in an environmental battle can tell you that.

So in case any of you are interested in the practical side of politics, check out my class at the College of Marin Saturday September 16, 2006, from 10-4 PM. Anyone running for office, thinking of running for office or working with a campaign are especially invited to join us.

We will, as always, go over some basics for activists, that can be used in campaigns or in your neighborhood battles.

Email me with any questions: del@greendogcampaigns.com

PRACTICAL POLITICS

How YOU can be an Activist for Your Community

"All politics is local" -Tip O'Neill

Dotty LeMieux’s community activist training class will be held at the College of Marin, Saturday September 16, from 10 AM to 4 PM. Learn how to be a more effective activist for your cause.

Environmental: Are you reviewing an EIR for a project in your neighborhood, fighting big box retail or struggling to preserve wetlands?

Social: Would you like your local government to be more responsive to community needs in the areas of affordable housing, transit or other pressing neighborhood issues?

Political: Have you thought about running for office yourself or working for a candidate or ballot measure to make changes in your community?
This training may be just what you’re looking for. Meet like minded people and hear their stories. Gain new allies and learn new techniques in working for your cause or candidate Topics include:

• Telling our stories, campaigns won and lost, what you are doing now in your community!
• Frame that issue: How to get your message just right
• Tracking the elusive volunteers
• Getting the Press to pay attention
• Creating effective materials to carry your message to the streets, City Hall or Washington
• Finding likely and unlikely allies. Learn why "The enemy of my enemy is my Friend."
• Yes, you CAN raise money! Tips to help you get over your fear.
• Planning your next steps; An activist's work is never done!

Successful students of past classes have won elected office offices, led citizen petition drives and become effective at getting their message across in public hearings and in the press.

It would be helpful, but not required, if students read George Lakoff’s Don’t think of an Elephant before the class. Binders with class material provided to each student.

Yes, you CAN make a difference!

Go to http://marincommunityed.org/regist/resources/index.htm

to register

Tuesday, July 25, 2006

WHOSE FENCE IS IT?

From time to time, we will print enlightening articles by others on topics of interest to property owners and land use practitioners. This is from a nice little real estate newsletter out of Oakland. The writer kindly interviewed me following a reading of the Blog.

Enjoy:


Whose Fence Is It?
By Bruce Linde


Copyright 2006 The Grubb Co (www.grubbco.com). All rights reserved. Reprinted with permission.

The news is rife with stories of border disputes and their ramifications. You might be tempted to say ‘not in my backyard,’ but you might find you have your own border war if you don’t know exactly where your property lines are.

Americans spend more than $1.6 billion per year on fences. California Civil Code §841.2 requires that “coterminous owners are mutually bound equally to maintain the fences between them”… but it’s not that simple. According to Nolo Press’ Fences FAQ, “Unless the property owners agree otherwise, fences on a boundary line belong to both owners when both are using the fence. Both owners are responsible for keeping the fence in good repair, and neither may remove it without the other’s permission.”

It is defining boundary lines that is the sticking point. Boundary-line issues can be readily identified if a buyer obtains a survey of the property before the purchase, but many buyers are unwilling to do so because of the cost ($800 to $1,500 or more). “If a fence is truly on the property line, it’s a shared fence,” says Attorney Dotty LeMieux. “We all assume the fence is the property line, but that isn’t always the case. The only way to know for sure is to do a survey.” Besides showing property lines, a survey will also show the location of pools, decks, fences and anything else that has been added to the property… including structures built without the required permits (and inspections) that regulate their size, height, and location. To further highlight the complexities of this issue, an arbitrator in Berkeley recently ruled that although a homeowner’s land had moved, a survey determined ownership – and several feet of disputed earth now belonged to the downhill neighbor; there is no state law specifically designed to address property-line disputes where the ground is slowly moving, impacting property lines.

Nevertheless, if the deed or plat (map) of your property is confusing, you and your neighbor can simply agree that a fence – existing, or one you build – marks the boundary. This is called an “agreed boundary,” and certain requirements must be met: the line must be uncertain, both neighbors must agree that the fence is the line, and both neighbors must then treat the fence as the property boundary for a period of time. Once these requirements are fulfilled, the fence becomes the legal boundary line on the ground. Such an agreement should be in writing and recorded with the county in case there are any future questions about the boundary.

Even without an explicit agreement, when two neighbors treat a fence as a boundary fence for a long period of time – for example, if both contribute to its maintenance for many years – it can become the legal boundary. A fence on an agreed boundary is subject to all the laws that affect any boundary fence; when one of the properties is sold, the fence remains the boundary, and the new landowner buys mutual ownership of it along with the property.

So what happens when neighbors can’t agree? Good neighbors communicate, resolving problems to their mutual benefit without resort to the legal system. Mediation is also an option. Your first step, though, should be to talk to your neighbor, share perspectives, and see if you can come up with an equitable solution. The bottom line, according to LeMieux, is that “it’s best to be on good terms with your neighbors, and know where your property lines are.”

Please call with comments or questions about this article, or for referrals to qualified surveyors and fencing contractors. Thanks to Dotty LeMieux, who can be reached at coastlaw@earthlink.net.

Tuesday, July 11, 2006

Boundary Trees Revisited

Tina writes:


You say "both share the cost of its upkeep or liability for its lack of upkeep, in proportion to how much of the trunk is on whose side of the line", but the 2006 edition of Nolo's _Neighbor Law_ says that in California the tree is %50 your neighbor's, even if only a little bit of the trunk is on his property. If the tree was originally only on your property, then the trunk grew to where it was also on your neighbor's property, your neighbor becomes co-owner.

So I'm a little confused here--proportional, or 50%?

Curious (and yes, I do have a tree problem),
Tina

Dear Tina,

Well, as in the law generally, there are two (or more) sides to every issue. The law is ambiguous, so the sides are fuzzy too, like a shaggy barked Eucalyptus. I hope it's not a Eucalyptus coming between you and your neighbor. There are no hard and fast rules. You are both responsible, true, and neither can remove or damage the tree without permission of the other. You may however, trim the branches on your side of the line, so long as you do not damage the structural integrity of the tree.

The reason these problems are not so commonly written about today is 1) most of these issues came up in the days when farmers planted windbreaks to protect the crops along their boundary lines and 2) many people today use the services of a trained mediator to resolve disputes.

That is what I would suggest if you are having a problem with a boundary tree. Your town or County may have a mediation service for just such disputes. If not, you and the neighbor need to agree to hire someone and split the costs.

I wish you good luck with your tree and if you need further advice, consult your local Bar Association for the name of a good tree lawyer in your area.

Dotty LeMieux

Monday, January 09, 2006

The Public Trust Doctrine: Venerable and Besieged

This essay was first published on On The Commons (http://onthecommons.org)


Dotty E. LeMieux


“By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings which are not, like the sea, subject only to the law of nations.”


The quote above is from the Justinian Code of 530 AD, on what has become known as the Public Trust Doctrine in jurisprudence. Justinian, the sage Roman Emperor who gave us much of what we now think of as “common law, had more to say on the subject:

“The seashore extends as far as the greatest winter flood runs up.” He wasn’t through yet: “The public use of the seashore, too, is part of the law of nations, as is that of the sea itself; and, therefore, any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself, and the sand or ground beneath it.”
As one can imagine, the conflicts between those in the cottages and drying sheds along the shore and the rest of the public wanting to gather “cockles and mussels, alive alive oh” in the same area grew nastier and more complex as development increased and seashore living became a luxury for the leisure classes, instead of a necessity for the fisher folk.

Public Trust lands are strictly speaking the lands under the oceans and other waterways and are held in trust by the state for the people as a whole. They cannot be bought or sold, except in rare situations where the public trust itself will be benefited.

Enter the Courts

The seminal case which established the scope of this doctrine in the U.S. is Illinois Central Railroad v. Illinois , 146 U.S. 387 (1892). The State of Illinois wanted to grant the entire Chicago waterfront to Illinois Central Railroad. The United States Supreme Court determined that Illinois held title to these lands in trust for the public. They could only convey title to other entities id that conveyance would actually improve the public’s rights. This was not the case with the Railroad’s plans for the land, and the State prevailed.

In 1988 the Supreme Court expanded this doctrine by holding that the principles underlying it applied to all water influenced by the ocean’s tide, regardless of whether it was navigable or part of a navigable body of water in the case of Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988).

Early California case law and legislation determined that the public trust lands along the seashore extended to the “mean high tide” mark, and that landowners could own the land under the trust waters, they could not keep the public off it, or impede the public’s use of those lands up to the mean high tide. As late as the early 1970’s, litigants were wrangling over the definitions of these lands:

“Public trust easements are traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes.” (Marks v. Whitney, 1971, 6 Cal. 3d 251, 259.)

This case also recognized that an important use of the tidelands was “the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.” (Ibid. at 259, 260.)

So it’s not just all navigation and fishing rights as it was defined in the old days. In California, the State is ultimate arbiter of whether the Public trust lands are serving their public trust purpose. This has led to a collision of competing water interests, when land owners or public agencies with the right to appropriate water from navigable waterways, including rivers, streams and lakes have locked horns with environmentalists.

The most celebrated case on this issue may be the Mono Lake diversion. In the case of Mono Lake, the Los Angeles Department of Public Works asserted their rights to the waters of tributaries to the Lake for the purpose of supplying the vast metropolitan L.A. basin. These tributaries were not themselves “navigable” waters, but supplied the Lake. Diminishment of their capacity was soon felt on the Lake itself, which was in danger of being drained with resultant loss in habitat and wildlife dependent on it. By 1979, the Lake had sunk 43 feet and diminished in size from 83 to 60 miles. Salinity levels were rising leading to changes in migratory bird patterns.

This was by far the most expansive use of appropriative water rights, and continued unabated for years. The damage to the Lake was impossible to ignore however, and environmentalists brought suit to stop the practice.

The California Supreme Court clarified existing law that protection of the environment was a reasonable use, and that the appropriative use did not take precedent over that environmental protection. National Audubon Society v. Superior Court Alpine County (1983, 33 Cal.3d 419).

The Ebb and Flow of Water Rights

Today, we see threats to our Public Trust doctrine under attack in the attempted sales of water rights to private contractors. Private entrepreneurs are attempting to buy “excess water” from California rivers to transport in giant water bags to sell to places in need of more water. This year, popular mystery writer, Marcia Muller, used a water grab in the fictitious town of Cape Perdido in one of her thrillers The “waterbaggers” as the locals called them, were forced to fold their bags and go home after a series of unfortunate events revealed them to be more than simply greedy. A good read, based in fact.

The question arises, what is “excess water?” where the public trust is concerned. Can there be such a thing? An even trickier question is how to treat ground water, that water lying under ground, hidden from the public eye, but often feeding local water wells essential to human and agricultural consumption?

Traditionally, the public trust relates to navigable waterways only. In Mono Lake, the doctrine was found to extend to instances when diversion from a tributary to a navigable waterway damages that water, in that case, Mono Lake.

Ground water, that body of water lying under the ground, in springs for instance, is not so protected. Although ground and surface water are interconnected, there is no permit process for the use of ground water the way there is for surface water.

Consequently, it is often treated like a commodity, to be bought and sold. If you drink water out of a plastic bottle, chances are it comes from a groundwater source and it may be having a devastating effect on the environment.

Case in point: Recently the Nestle Corporation entered into a contract with the water agency in McCloud to sell ground water for bottling. Locals sued and the court ruled this spring that they needed to do an environmental impact report before entering into the contract. So the project is on hold for now. However, resolution of the issue of whether this use will impinge upon the public trust will have to wait for another day.

This is an ever-evolving area of the law and public policy. Many third world countries are now obliged to buy their own water from private corporations. In fact, the World Bank encourages privatization as an answer to dwindling water resources. NAFTA and the WTO consider water as a “good” and failure to treat it as such by signatory countries can result in trade sanctions. This is a devastating development as water resources are literally drying up in many places on the globe.

The commons are in trouble, not only in the third world but here at home. The City of Atlanta turned to water privatization as a way out of a failing public system. Only recently did the City take back control of its own water supplies. If the Atlanta experience is any indicator, people in this country are not willing to have the public trust sold to the highest bidder. Not yet anyway.

A Walk on the Beach

Earlier this summer, two state Supreme courts issued landmark ruling upholding the Public trust doctrine to shoreline areas. The Michigan Supreme Court’s ruling overturned seventy years of appellate court decisions in favor of private property rights over the public’s access to shoreline. In that case, the justices found that the public’s right to beachfront access extended to the “ordinary high water line,” not just to the actual water itself.

A similar outcome resulted from a case in New Jersey in which a private club tried to limit public access to the Beach. There, the court found that the public’s rights to enjoy the beachfront to the mean high tide did not depend on that line being under water, as contended by the property owners.

Property rights advocates are in a tizzy over these rulings, and urging the US Supreme court to overturn them.

In California, our rights to walk on the beach are still protected to the mean high tide line, whether on wet or dry ground. Here, the issue is mostly over access to the beach, with fierce battles being waged by property owners in tony beachfront communities like Malibu, not wanting the great unwashed to pass their multimillion dollar investment homes on the way to the public beaches.

In Seadrift, at Stinson Beach, property owners, in an attempt to stem the rising tide of storm washed seawater, built rock bulkheads without benefit of permits in the early 1990’s. After a long court battle with the Coastal Commission, the State caved into the owners’ demands and agreed to limit the public access. Frightened homeowners were terrified at the specter of scruffy beachgoers standing atop their seawall for a look at how the other half lives. Or so they claimed.

A group of citizens (represented by volunteer attorneys, the author of this piece among them) brought their own suit claiming an “implied dedication” to the entire beach, meaning the public had used the beach for so many years as if it were a public beach, that dedication for public use could be implied. This case, Citizens for Open Access to Sand and Tide, was heartbreakingly dismissed on the eve of trial for lack of standing. The court found that the earlier Coastal Commission settlement determined the public’s rights and no one else was allowed to sue to protect them. (See Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053)

Beach goers and their legal teams are avidly watching the two newly decided cases opening up access in Michigan and New Jersey (as well as a similar case working its way through the Washington State court system) with a certain amount of trepidation. Will a more conservative property rights oriented United State Supreme Court reverse the Michigan and New Jersey cases , and if so, what is the implication for California and the other states which already had a more expansive view of the Public Trust doctrine? That is the question on everyone’s minds.

________________________________

Dotty E. LeMieux is an environmental attorney in Marin County California, working on land use issues in the public interest. You can read her updates on her blog at www.landusenews.blogspot.com.