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Court Sideswipes Coastal Commission's Attempt To Create Public Property Rights

A property owner in Malibu wanted to fence his property and erect "No Trespassing" signs in an attempt to keep people off its property.  The property fell within the California Coastal Commission's jurisdiction, so the owner applied to the CCC for a permit.  The Coastal Commission denied the permit, which is not too surprising because that's what they generally do.

The CCC's rationale, however, left the court scratching it's collective head.  The CCC denied the permit because the fences would prevent the public from establishing prescriptive easement rights in the future.


Try that sentence again.  There are no easement rights now in the property, but once it's fenced off, the public would be prevented from establishing an easement.  Excuse me here for a moment, but that's the whole idea behind private property ownership.  You get to exclude others from your land.  I'm guessing that the staff and Coastal Commission members missed that class in school. 

Actually, the Court said it best:  "Inherent in one's ownership of real property is the right to exclude uninvited visitors.  In prohibiting [the owner] from excluding the public from its property on the theory that "potential exists to establish prescriptive rights for public use," the Commission in effect decreed the existence of such rights.  We find 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."

In other words, if the public doesn't have those rights now and the property owner takes reasonable actions to prevent the public from establishing an easement over the property, the Coastal Commission must issue the permit to fence the property.  What's perhaps more amazing is that it took a court case to restore a semblence of sanity to the Coastal Commission's actions.

And the property?  Nope, it's not beachfront.  It's an antenna farm on top of a hill.  Go figure.

Posted by J. Craig Williams on Saturday, May 26, 2007

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