Hat tip to May it Please the Court for alerting us to a recent decision by the Second District Court of Appeals in California, LT-WR, L.L.C. v. California Coastal Comm’n (No. B187666, May 25, 2007).
In that case, the CCC denied a property owner’s request for a permit to allow it to maintain a fence around its property and post “no trespassing” signs, among other things. The Coastal Commission’s rationale was stunning in its audacity:
The Commission also denied the gates and signs by finding that there are ‘potential’ public prescriptive rights, that the gates are not ‘necessary’, and that the gates and signs are akin to a ‘gated community.’
Slip op. at 37. (“Public prescriptive rights” is another way of saying that if an ownerdoes not prevent the public from traversing property for a fixed periodof time, the public may gain a permanent right to “adverse possession”of an access easement across the property.)
The court of appeals did not publish the portions of the opinion dealing with vested rights, but did publish the critical analysis of the owner’s right to exclude the public by fencing its property. The court held the CCC erred by basing its denial on the mere “potential” for public prescriptive rights:
The Commission did not deny a permit on the ground the gates would have an adverse environmental impact in terms of movement of wildlife or otherwise. Rather, the Commission based its decision on the existence of potential prescriptive rights in favor of the public. The Commission found “[e]vidence exists . . . of public use of Newton Canyon Motorway for hiking and equestrian use, including potential prescriptive rights, which would be affected by the proposed development.” (Italics added.) Based on letters submitted “describing historic use, the Commission [found] that potential exists to establish prescriptive rights for public use of this road.” (Italics added.) The Commission further found “[t]he area surrounding the subject site . . . is rural in nature . . . . The proposed gate will convey to visitors the message: keep out, visitors are not welcome. This impact is inconsistent with the fact that the site is located within the [Santa Monica Mountains National Recreational Area], an area devoted to providing visitors with recreational opportunities and protecting natural habitats. . . . [T]erritorial reinforcement, such as a security gate, defines public and private spaces, and ‘serves as a warning and deters entry by an offender.’ ” (Italics added.)
Slip op. at 40 (emphasis original). The court of appeal rejected the Commission’s rationale:
Inherent in one’s ownership of real property is the right to exclude uninvited visitors. (See Black’s Law Dictionary (5th ed. 1979) p. 1095 [definition of property]; General Dynamics Corp. v. County of L. A. (1958) 51 Cal.2d 59, 71 (conc. opn. of McComb, J.).) The Commission’s decision would deny LT-WR that right. In precluding LT-WR from barring the public from traversing its property on the theory that “potential exists to establish prescriptive rights for public use of this road,” the Commission in effect decreed the existence of such prescriptive rights.
We recognize one of the basic mandates of the Coastal Act is to maximize public access and recreational opportunities within coastal areas. Public Resources Code section 30210 provides: “In carrying out the requirement of Section 4 of Article X of the California Constitution [access to navigable waters], maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse.” (Italics added.) However, the Commission is not vested with the authority to adjudicate the existence of prescriptive rights for public use of privately owned property. In denying LT-WR a permit for the gates and no trespassing signs due to the possibility of prescriptive rights, the Commission in effect gave credence to the claimed prescriptive rights. The Commission’s denial of a permit for the gates and signs, premised on the existence of “potential” prescriptive rights, was speculative and properly was overturned by the trial court.
Slip op. at 41 (emphasis original). What was left unstated by the court’s opinion is that the Commission effectively took (or ignored) the property owner’s right to exclude the public by both giving effect to the “potential” of a public prescriptive easement, and by denying the owner the right to interfere with the prescription. I suppose every parcel of land is “potentially” subject to a public prescriptive easement, which makes the Commission’s rationale all the more suspect, and this case appears to me to be a brazen attempt at a land grab, couched in the language of regulation. Given that the excesses of the California Coastal Commission resulted in the Nollan case, that scenario isn’t much of a stretch to imagine.
The full opinion is posted here (100kb pdf) and here (130kb MS Word doc).