Malibu Man Fined $4.2 Million Over Disputed Beachfront Gate
Warren Lent is suing the California Coastal Commission, arguing that its power to unilaterally hand down massive fines with minimal process is unconstitutional.
When Warren and Henny Lent bought their Malibu beach house in 2002, it was the realization of a lifelong goal. Warren, a doctor by training, says he worked a second job on top of the time he put in at a Beverly Hills plastic surgery practice just to afford the down payment.
It was "a dream come true which lasted about two months," Lent says.
That was when the Lents learned, via a casual conversation with a neighbor, that their house had a five-foot-wide public access easement along its eastern side that people could use to get down to the water. These easements aren't uncommon, and at first, the Lents didn't think much about the fact that their home had one too.
After all, it wasn't like their side yard made for a great means of accessing the beach given that it contained two steep drops, and that running underneath the whole thing was a large storm drain which could make building anything on top of it an engineering challenge.
Nevertheless, this easement put the Lents on a collision course with one of the most powerful agencies in the state, and one with a history of antagonizing property owners: the California Coastal Commission (CCC).
Beginning in 2007, the commission began demanding that the couple remove a gate and stairs obscuring their side yard so it could build its own improvements there. The Lents said they would comply once the commission was actually ready to break ground.
Negotiations continued until 2016, when the commission—tired of arguing and newly empowered to issue fines—slapped the couple with a $4.2 million penalty. This remains one of the largest fines the commission has ever handed out.
"If I lose that property and lose that equity, that's my retirement," Warren Lent tells Reason, saying that penalty would require him to forfeit his house to the state. "We don't want to lose what we've legitimately earned."
The couple has since sued the commission. They argue that the millions in penalties they've been hit with is totally disproportionate to any injury they've caused and thus violates the U.S. and California constitutions' prohibition on excessive fines. Their lawsuit also says that the administrative hearing at which the commission handed down this excessive fine—where the Lents had no ability to cross-examine witnesses or challenge the speculation or hearsay of public commentators—violated their right to due process.
The case is now before the California Supreme Court. Its decision will have huge ramifications for landowners all along the coast who currently run the risk of being hit with massive daily fines handed down with minimal process should they object to the commission's plans for their property.
'The Single Most Powerful Land Use Authority in the United States'
In 1972—around the same time an anti-growth revolution was sweeping California—voters approved the creation of the 12-member CCC. According to the voter information guide for that year, the explicit goal was to stop a supposed "corporate land grab" of the state's shoreline.
To that end, the commission was given the power to approve, deny, or condition everything from new hotels to home expansions within a zone that generally extends 1,000 yards inland from the high-tide line.
That power to permit development along 860 miles of some of the most valuable real estate in the world made the commission "the single most powerful land use authority in the United States," in the words of Jonathan Zasloff, a law professor at the University of California, Los Angeles.
Those sweeping powers have also given rise to endless legal controversies.
In 1982, a Ventura couple sued the commission after it refused to approve a permit for a second story on their house unless they also agreed to the creation of an easement on their property. The case, Nollan v. California Coastal Commission, eventually wound its way up to the U.S. Supreme Court where the majority ruled against the agency in a landmark, if legally wonky, opinion that requires there to be a "nexus" between the purposes of the commission's development regulations and the conditions it places on permit applicants.
Despite that ruling, the commission continues to unconstitutionally antagonize coastal landowners, said Mark Miller, a former Pacific Legal Foundation (PLF) attorney who now works as a legal advisor for South Dakota Gov. Kristi Noem, last year. (PLF litigated the Nollan case, and is currently representing the Lents.)
"People want their permits. So even if the demand being put on them [from the coastal commission] would violate Nollan, often the permit applicant doesn't know that, or if they know it, they will give it up, they'll give in to the extortion," he says, asserting that the commission continues to attach conditions to permits that have little to do with protecting the public's access to the coast.
"The war on property owners along the coast is not ending," he says.
The past few years have only seen the agency's powers grow.
In 2014, the California State Legislature gave the commission the power to unilaterally issue daily fines of up to $11,250 to anyone blocking public access to the coast. Previously, the commission had to go to court to hand out penalties.
Proponents of this law said it would give the agency the leverage needed to quickly get property owners to remove gates, fencing, "no parking" and "no trespassing" signs and other things blocking public access to the coast.
"We're not interested in punishing people, we're interested in protecting access," Lisa Haage, the commission's chief enforcement officer, told the Los Angeles Times at the time.
A 2019 commission report found that the law both increased the speed at which existing public access cases were resolved, and the rate at which new cases were opened. Commission staff nevertheless maintained that actually issuing fines was a last resort.
When property owners don't buckle immediately, however, the commission can suddenly become very interested in handing out punishments—something the Lents were soon to discover.
Lents and Penance
When the Lents purchased their property in 2002, the stairs and gate that would land them in hot water with the commission were already there. Removing them presented a couple of problems.
The stairs, which extended partially into the easement, provided the only means of accessing the beach from the house—a nice feature for what was, after all, a beach house. It was also a second means of egress, something required by the city of Malibu. Removing the gate presented a liability issue given that it was the only thing preventing people from falling down a six-foot drop immediately behind it.
Over the next couple years, the Lents say they tried to find a compromise, including potentially shifting the public access easement from the eastern to the western side of the house.
"We weren't saying we weren't going to remove these structures. We were just saying we were going to use our property until such time that they were going to use their easement," Warren Lent tells Reason.
Years-long gaps in communication from the commission during this period—not to mention the previous couple of decades of inactivity—suggested to the Lents that this was not an urgent priority.
In 2014, however, the commission started to threaten fines. Negotiations about a consent agreement to remove the gate and stairs collapsed in early 2016 when the commission demanded the Lents pay a $600,000 penalty (which they later upped to $900,000) to settle the matter. Warren says the couple did not have the money. Their counteroffer to pay a $100,000 fine and remove all structures in the easement by June 2016 was rejected.
Matters came to a head at a December 2016 hearing.
There, commission staff argued the Lents' efforts at compromise were bad-faith delaying tactics, ones the commission had no obligation to entertain. The gate and stairs were illegal, and the Lents didn't get to dictate the conditions under which they came down. The fact that the Lents had rented out the house on Vrbo, a vacation rental platform, for close to $1,000 a night was just more evidence that the couple was profiting off their illegal obstruction of public beach access.
Commission staff said that a fine of $8.4 million—the total daily $11,250 fines that the Lents had accumulated since they were first warned about the potential for monetary penalties in late 2014—would be an entirely appropriate, "conservative" sanction. Nevertheless, they recommended an even more lenient fine range of between $800,000 and $1.5 million.
In response, both Warren Lent and his lawyer at the time, Alan Block, stressed the couple didn't install the contested structures, and that they'd always sought to cooperate with the commission once they were made aware of the supposed violations.
Block explained that the Lents had made their property available to the commission and its partner agencies for site visits, going so far as to give them a key to the gate on their property. Warren Lent also tells Reason he only started renting out his property in 2007 with the primary aim of covering the legal bills he was accumulating dealing with the commission.
Despite the fact that the Lents were facing millions in fines, the hearing they'd been called before operated much more like a town hall than a trial. That meant that members of the public were able to get up and provide comments, and neither Warren Lent nor his lawyer were able to cross-examine them.
That included Joe Edmiston, executive director of the Mountains Recreation and Conservation Authority (MRCA), who said at the hearing that his agency was "prepared immediately to open this access way up, using this facility, right now. Give us the key, say the public can own it, and we'll have the rangers there in the morning opening it, and at night closing it."
At the time, the MRCA already had a key to the gate. When the Lents agreed to remove it in 2018, the MRCA told them to wait until they could put up their own gate. That didn't happen until 2019. Despite the agency's claim that they were ready to immediately open up the Lents' easement, it remains closed to this day.
Another woman from the California Coastal Protection Network claimed, using her own back-of-the-envelope calculations, that the Lents had pocketed as much as $4 million from renting out their home to beachgoers.
In the end, commissioners decided to split the difference between their own staff's recommendation and the maximum allowable fine. They gave the Lents a penalty of $4.185 million. They also issued a cease-and-desist order requiring them to remove the gate and stairs on their house.
"I'm a doctor. I'm not a rich industrialist," says Warren Lent. All he and his wife did, he maintains, is buy a house. Paying the penalty would effectively require him to turn it over to the state.
Unwilling to have his property taken from him, he decided to sue.
In 2018, a trial court in Los Angeles County ruled partially in the Lents' favor. While it didn't overturn the cease-and-desist order, it did stay the fine, ruling that the Lents weren't given sufficient notice of the amount of the penalty they would be subject to, and that they should be given the opportunity to present more evidence in their favor.
Both the CCC and the Lents appealed that ruling. The Lents, now with the help of PLF, were arguing that the fine itself was unconstitutionally severe and that the hearing at which it was decided violated the couple's due process rights. Their lawsuit also asks that the law empowering the commission to unilaterally hand down these fines after a simple administrative hearing be overturned.
"It's hard to look at this kind of statute as anything other than quasi-criminal. The intent of it is to punish," says Jeremy Talcott, a PLF lawyer. "Yet without any of those traditional protections we'd find in a true criminal proceeding, the court was able to financially devastate individuals. That should be horrifying to absolutely anyone."
In April 2021, an appeals court sided with the CCC and upheld the $4.2 million fine imposed on the Lents. The couple is now appealing to the California Supreme Court.
Fine Details
The $4.2 million fine handed down to the Lents was the commission's first use of its newfound powers to unilaterally penalize violators in public access violators, but it was hardly its last, or even its most severe.
That includes a $15.6 million fine the commission gave to a developer for building a hotel whose rooms were too expensive, and a $1 million fine to a Laguna Beach couple who didn't remove a preexisting seawall when remodeling their beach house.
Given the severe affordability challenges faced by average renters and homeowners in California—where 29 percent of renters spend over half of their income on rent and the typical home price is $668,300—some might find it hard to feel too much sympathy for the Lents and other rich property owners victimized by the CCC.
Indeed, the commission justifies its heavy-handed fines in class-based terms. It is preserving access to the beach for working-class Californians from rich coastal landowners who'd otherwise privatize the whole shore.
However, a 2010 study by Zasloff, as well as UCLA economists Matthew Kahn and Ryan Vaughn, found that home prices and incomes have grown much faster in areas where development is regulated by the commission, and that the commission's restrictions on development were driving gentrification along California's coastline.
Absent the commission's anti-development regulations, it's reasonable to assume that a lot more people than well-off doctors would be able to live closer to the water. The Lents might be the primary scapegoats for a more general problem than the CCC and its excessive red tape are contributing to, but they're not the only ones paying the cost.
So long as the commission retains the power to levy massive fines on homeowners for asserting their rights, private property along the California coastline will continue to be more fiction than reality. Why challenge an order from the agency if every day you don't comply with its wishes brings the risk of five-digit fines?
The Lents' lawsuit represents an opportunity to put some outer bounds on the commission's power. More broadly, the anti-growth assumptions underlying its regulation of coastal development will have to change.
Pro-development, pro-density "yes in my backyard" (YIMBY) activists who have made slow, steady progress in convincing Californians that allowing more development doesn't ruin cities but rather gives more people the ability to enjoy them. That same attitude should extend all the way to the shoreline.
The public access that the commission is tasked with ensuring would be far better served by giving landowners more freedom to build what they wish on their property than trying to fine them into the poor house for blocking an unusable path down to the beach.
