Malibu Municipal Code § 12.6 Standards for Application of Access Conditions

12.6.1 Lateral Public Access. The public access required pursuant to Section 12.4 of the Malibu LIP shall conform to the standards and requirements set forth in Sections 12.6 through 12.7.2 of the Malibu LIP.

A. Minimum requirements. [Also to be used for blufftop access or trail access, as applicable.] A condition to require an offer to dedicate an easement or a grant of easement for lateral access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 12.4 of the Malibu LIP shall provide the public with the permanent right of lateral public access and passive recreational use along the shoreline (or public recreational area, bikeway, or blufftop area, as applicable); provided that in some cases controls on the time, place and manner of uses, such as limiting access to pass and repass or restricting hours of use, may be justified by site characteristics including sensitive habitat values or fragile topographic features or by the need to protect the privacy of residential development.

1. To protect marine mammal haul out areas and seabird nesting and roosting sites at Point Dume, Paradise Cove, or other area documented by evidence, a limited period, during which public access should be controlled may be necessary such as during nesting and breeding seasons if recommended by the City biologist, Environmental Review Board or other qualified professional. Any limitation on access shall be for the minimum period necessary, shall be evaluated periodically by the City to determine the need for continued limited use and, where applicable to Section 2.1 of the Malibu LIP, shall require a Coastal Development Permit. Active recreational use may be appropriate where the development is determined to be especially burdensome on public access. Examples include cases where the burdens of the proposed project would severely impact public recreational use of the shoreline, where the proposed development is not one of the priority uses specified in Public Resources Code Section 30222, where active recreational uses reflect the historic public use of the site, where active recreational uses would be consistent with the use of the proposed project, and where such uses would not significantly interfere with the privacy of the landowner. In determining the appropriate character of public use, findings shall be made on the specific factors enumerated in Section 12.8.1 of the Malibu LIP. Lateral access shall be legally described as required in Section 12.6.7 of the Malibu LIP.

A. Minimum requirements. A condition to require vertical public access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 12.4 of the Malibu LIP shall provide the public with the permanent right of access, (1) located in specific locations identified in the certified Local Coastal Program for future vertical access, or (2) located in a site for which the local government has reviewed an application for a development permit and has determined a vertical accessway is required pursuant to the access and recreation policies of the Coastal Act or the applicable provisions of the Malibu Local Coastal Program.

B. A condition to require vertical access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 12.4 of the Malibu LIP shall provide the public with the permanent right of vertical access and be limited to the public right of passive recreational use unless another character of use is specified as a condition of the development. In determining whether another character of use is appropriate, findings shall be made on the specific factors identified in Section 12.8.1 of the Malibu LIP.

C. Each vertical accessway shall extend from the public road to the shoreline (or bluff edge) and shall be legally described as required in Section 12.6.7 of the Malibu LIP. The access easement shall be a minimum of 10 feet wide wherever feasible. If a residential structure is proposed, the accessway should be sited along the border or side property line of the project site or away from existing or proposed development and should not be sited closer than 10 feet to the structure wherever feasible. Exceptions to siting a vertical accessway along a border or side property line or not closer than 10 feet to a structure may be required where topographical, physical or other constraints exist on the site. To protect marine mammal haul out areas and seabird nesting and roosting sites at Point Dume, Paradise Cove, or other area documented by evidence, a limited period, during which public access should be controlled may be necessary such as during nesting and breeding seasons if recommended by the City biologist, Environmental Review Board or other qualified professional. Any limitation on access shall be for the minimum period necessary, shall be evaluated periodically to determine the need for continued limited use and, where applicable pursuant to Section 2.1 of the Malibu LIP, shall require a Coastal Development Permit.

A. Minimum requirements. A condition to require public access to or along a bluff top as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 12.4 of the Malibu LIP shall provide the public with the permanent right of scenic and visual access from the bluff top to the public tidelands.

B. The bluff top access shall be limited to passive recreational use and coastal viewing purposes unless another character of use is specified as a condition of development. In determining the appropriate character of use findings shall be made on the specific factors identified in Section 12.8.1 of the Malibu LIP.

C. Each bluff top accessway shall be described in the conditions of approval of the coastal development permit as an area beginning at the current bluff edge extending 25 feet inland or [greater or lesser] as determined to be necessary for public safety or geologic stability. However, wherever feasible, the accessway should not extend any closer than 10 feet from an occupied residential structure. Due to the potential for erosion of the bluff edge, the condition shall include a mechanism that will cause the accessway to be adjusted inland as the edge recedes. Any permanent improvements should be set back from the accessway by a distance derived by multiplying the annual rate of blufftop retreat by the 100-year life expectancy of the improvements plus an added geologic stability factor of 1.5. In no case shall the setback be less than 100 feet from the bluff edge which may be reduced to 50 feet if recommended by the City Geologist and the 100 year economic life of the structure with the geologic safety factor can be met provided that the setback will result in a minimum distance of 10 feet between the structure and the accessway for the life of the structure.

D. The accessway shall be legally described as required in Section 12.6.7 of the Malibu LIP, with the furthest inland extent of the area possible referenced as a distance from a fixed monument in the following manner:

"Such easement shall be a minimum of 25 feet wide located along the bluff top as measured inland from the daily bluff edge. As the daily bluff top edge may vary and move inland, the location of this right of way will change over time with the then current bluff edge."

12.6.4 Trail Access. Minimum requirements. A condition to require public access as a condition of approval of a coastal development permit (or other authorization to proceed with development) required pursuant to Section 12.4 of the Malibu LIP shall provide the public with the permanent right of access and active recreational use, (1) along a designated alignment of a coastal recreational path or trail in specific locations identified in the LCP for implementation of trail access, or (2) in locations where it has been determined that a trail access is required to link recreational areas to the shoreline or provide alternative recreation and access opportunities pursuant to the access and recreation policies of the LCP and Coastal Act, consistent with other provisions of this chapter. In determining if another character of use is appropriate, findings shall be made on the specific factors enumerated in Section 12.8.1 of the Malibu LIP. The trail access shall be legally described as required by Section 12.6.7 of the Malibu LIP.

12.6.5 Recreational Access. Minimum requirements. A condition to require public recreational access as a condition of approval of a coastal development permit (or some other authorization to proceed with development) required pursuant to Section 12.4 of the Malibu LIP shall provide the public with the permanent right of access and use within a designated recreational access area. Conditions required pursuant to this section shall specify the location and extent of the public access area. The form and content should take the form of requirements in Sections 12.6.1 through 12.6.4 of the Malibu LIP as applicable. The accessway shall be legally described as required in Section 12.6.7 of the Malibu LIP.

A. Substantial evidence determination. Substantial evidence that the area used by the public has been impliedly dedicated shall be determined based on evidence of all of the following:

1. The public must have used the land for a period of five years or more as if it were public land.

2. Without asking for or receiving permission from the owner.

3. With the actual or presumed knowledge of the owner.

4. Without significant objection or bona fide attempts by the owner to prevent or halt the use.

5. The use must be substantial, rather than minimal.

6. The applicant must not have demonstrated that the law has prevented the property from being impliedly dedicated.

B. Findings. Where an issue as to the existence of public prescriptive rights has been raised during the course of reviewing a coastal development permit application, one of the following findings shall be made:

1. Substantial evidence does not warrant the conclusion that public prescriptive rights exist.

2. There is substantial evidence of the existence of public prescriptive rights, but development will not interfere with those rights.

3. There is substantial evidence of the existence of public prescriptive rights which requires denial of a coastal development permit because of interference with those rights.

4. There is substantial evidence of the existence of public prescriptive rights, but a condition requiring dedication of public access protects the rights of the public and is equivalent in time, place and manner to any prescriptive rights which may exist.

5. There is substantial evidence of the existence of public prescriptive rights, but a condition requiring siting development away from the area used by the public protects the rights of the public.

C. Siting and design requirements. Development shall be sited and designed in a manner which does not interfere with or diminish any public right of access which may exist based on substantial evidence of historic public use. Only when site constraints are so severe that siting of the accessway or recreational use area in its historic location would significantly impair the proposed development and alternative development siting is not feasible, development may be sited in the area of public right of access based on historic use provided that the applicant provides an equivalent area of public access or recreation to and along the same destination and including the same type and intensity of public use as previously existed on the site. Mechanisms for guaranteeing the continued public use of the area or equivalent area shall be required in accordance with Sections 12.6.1 through 12.6.5 above of the Malibu LIP. Gates, guardhouses, barriers or other structures designed to regulate or restrict access shall not be permitted within private street easements where they have the potential to limit, deter, or prevent public access to the shoreline, inland trails, or parklands where there is substantial evidence that prescriptive rights exist.

D. Minimum requirements. An access condition shall not serve to extinguish or waive public prescriptive rights that may exist. The following language shall be included in any access condition required in a permit:

"The terms and conditions of this permit do not authorize any interference with prescriptive rights in the areas subject to the easement prior to acceptance of the offer."

A. An access dedication (offer to dedicate or grant of easement) required pursuant to Section 12.4 of the Malibu LIP shall be described, in the condition of approval of the permit or other authorization for development in a manner that provides the public, the property owner, and the accepting agency with the maximum amount of certainty as to the location of the accessway. As part of the condition of approval, easements shall be described as follows: (1) for lateral access: along the entire width of the property from the mean high tide line landward to a point fixed at the most seaward extent of development (as applicable): the toe of the bluff, the intersection of sand with toe of revetment, the vertical face of seawall, or other appropriate boundary such as dripline of deck. On beachfront property containing dune ESHA the required easement for lateral public access shall be located along the entire width of the property from the mean high tide line landward to the ambulatory seawardmost limit of dune vegetation; (2) for blufftop access or trail access: extending inland from the bluff edge or along the alignment of a recreational trail; (3) for vertical access: extending from the road to the mean high tide line (or bluff edge).

B. Prior to the issuance of the coastal development permit or other authorization for development, the landowner shall execute and record a document in a form and content acceptable to the Coastal Commission [or local agency authorized pursuant to 14 Cal. Code of Regulations Section 13574(b)], consistent with provisions of Section 12.8.1 of the Malibu LIP of this ordinance, irrevocably offering to dedicate (or grant an easement) to a public agency or private association approved by the Coastal Commission [or local agency authorized by the Commission pursuant to 14 Cal. Admin. Code Section 13574(b)] an easement for a specific type of access as described in Section 12.2 and a specific character of use as described in Section 12.3 of the Malibu LIP, as applicable to the particular condition.

C. The recorded document shall provide that: (1) the terms and conditions of the permit do not authorize any interference with prescriptive rights in the area subject to the easement prior to acceptance of the offer and, (2) development or obstruction in the accessway prior to acceptance of the offer is prohibited.

D. The recorded document shall include legal descriptions and a map drawn to scale of both the applicant's entire parcel and the easement area. The offer or grant shall be recorded free of prior liens and any other encumbrances which the Coastal Commission [or local agency authorized by the Commission pursuant to 14 Cal. Admin. Code Section 13574(b)] determines may affect the interest being conveyed. The offer to dedicate or grant of easement shall run with the land in favor of the People of the State of California, binding all successors and assignees, and the offer shall be irrevocable for a period of 21 years, such period running from the date of recording.

A. For any project where the LCP requires an offer to dedicate an easement for a trail or for public beach access, a grant of easement may be recorded instead of an offer to dedicate an easement, if a government agency or private association is willing to accept the grant of easement and is willing to operate and maintain the trail or public beach accessway.

B. A dedicated accessway shall not be required to be opened to public use until a public agency or private association approved in accordance with Section 12.6.7 of the Malibu LIP agrees to accept responsibility for maintenance and liability of the access, except in cases where immediate public access is implemented through a deed restriction. New offers to dedicate public beach or trail access easements shall include an interim deed restriction that 1) states that the terms and conditions of the permit do not authorize any interference with prescriptive rights, in the area subject to the easement prior to acceptance of the offer and, 2) prohibits any development or obstruction in the easement area prior to acceptance of the offer.

C. Access facilities constructed on access easements (e.g., walkways, paved paths, boardwalks, etc.) shall be as wide as necessary to accommodate the numbers and types of users that can reasonably be expected. Width of facilities can vary for ramps or paved walkways, depending on site factors.

D. For all offers to dedicate or to grant of an easement that are required as conditions of Coastal Development Permits approved by the City, the City has the authority to approve a private association that seeks to accept the offer or the grant of easement. Any government agency may accept an offer to dedicate or grant of an easement if the agency is willing to operate and maintain the easement. The City shall approve any private association that submits a plan that indicates that the association will open, operate, and maintain the easement in accordance with terms of the recorded offer to dedicate or grant the easement. For all offers to dedicate or grant of an easement that were required as conditions of Coastal Development Permits approved by the Coastal Commission, the Executive Director of the Commission retains the authority to approve a government agency or private association that seeks to accept the offer or grant of easement.

E. The appropriate agency or organization to accept and develop trail dedication offers or grants of easement resulting from City issued CDPs shall be determined through coordination, where applicable, with the National Park Service, the State Department of Parks and Recreation, the State Coastal Conservancy, Los Angeles County, the Santa Monica Mountains Conservancy, and the Santa Monica Mountains Trails Council, and nonprofit land trusts or associations. Public agencies and private associations which may be appropriate to accept offers to dedicate include, but shall not be limited to, the State Coastal Conservancy, the State Department of Parks and Recreation, the State Lands Commission, the County, the City, the Santa Monica Mountains Conservancy and non-governmental organizations.

F. Offers to dedicate or grants of public access easements shall be accepted for the express purpose of opening, operating, and maintaining the accessway for public use. Unless there are unusual circumstances, the accessway shall be opened within five (5) years of acceptance. If the accessway is not opened within this period, and if another public agency or qualified private association expressly requests ownership of the easement in order to open it to the public, the easement holder shall transfer the easement to that entity within six (6) months of the written request. A Coastal Development Permit that includes an offer to dedicate or grant an easement for public access as a term or condition shall require the recorded offer to dedicate to include the requirement that the easement holder shall transfer the easement to another public agency or private association that requests such transfer, if the easement holder has not opened the accessway to the public within five (5) years of accepting the offer.

G. Facilities to complement public access to and along the shoreline and trails shall be permitted where feasible and appropriate. This may include parking areas, restrooms, picnic tables, or other improvements. No facilities or amenities, including, but not limited to, those referenced above, shall be required as a prerequisite to the approval of any lateral or vertical accessway or trail OTD or grant of easement or as a precondition to the opening or construction of the accessway or trail. Where there is an existing, but unaccepted and/or unopened public access OTD, easement, or deed restriction for lateral, vertical, bluff or trail access or related support facilities, necessary access improvements shall be permitted to be constructed, opened and operated for the intended public use.

H. Any accessway which the managing agency or organization determines cannot be maintained or operated in a condition suitable for public use shall be offered to another public agency or qualified private association that agrees to open and maintain the accessway in a condition suitable for public use.

I. All public access mitigation conditions or terms required by a CDP shall include, as a compliance component, a requirement that the permittee submit a detailed and surveyed map, drawn to scale, locating any proposed or required easements or deed restricted areas.