Property Owner Must Stop Building Roads in Hills

The California Coastal Commission on Friday ordered a Las Vegas businessman to halt building dirt roads without permits on his property and on adjacent national parkland in the mountains above Malibu, and told him to restore the newly cut slopes before winter rains erode the environmentally sensitive area.

The decision came after attorneys for James A. Kay Jr. of Las Vegas made an unsuccessful effort to postpone any commission action by seeking a temporary restraining order in Los Angeles Superior Court.

The 12-member Coastal Commission voted unanimously to order Kay to cease and desist from grading roads, altering streambeds and disturbing environmentally sensitive chaparral and oak woodlands after viewing photographs depicting what commission enforcement officers characterized as more than two miles of new dirt roads.

Kay did not appear before the commission. But his representatives vigorously defended his actions, explaining that Kay broke no laws because his work crews simply cleared some brush and removed rocks from old farm roads that predate the Coastal Act, which gives the commission its jurisdiction. Kay’s representatives denied that their client had cleared brush on land that is part of the adjacent Santa Monica Mountains National Recreation Area.

Kay’s planning consultant Donald Schmitz and lawyer Fred Gaines said routine maintenance of existing roads on private property usually doesn’t require permits, but added that their client has since requested permits anyway and has faced nothing but delays.

Gaines suggested that his client’s troubles are being orchestrated by the National Park Service, which had an agreement to buy the land from its previous owner, Brian A. Sweeney, until Kay stepped in and bought it instead.

“The park service wants to buy this property and the commission is doing everything it can to assist the park service in obtaining the property,” Gaines said. He noted that his client has no other way to gain access to the remote and rugged property without using the newly cleared dirt roads.

Both commission and National Park Service officials scoffed at the idea of any joint effort to gain control of Kay’s land. “That was news to us that we are in collusion with the National Park Service,” said Lisa Haage, the commission’s chief of enforcement. She said the commission is simply trying to protect a nearly pristine area and uphold state law.

During a presentation on Friday, Coastal Commission enforcement officer Tom Sinclair presented a series of aerial photos of Kay’s properties, which he said showed that none of the new roads existed before work crews began to clear chaparral, trim oak trees and grade road beds in 2001.

There are “broad and deep cuts into the steep mountainside,” Sinclair told the commissioners. He said work crews have built a culvert using creosote-soaked railroad ties without obtaining proper permits and also installed gateposts, chains, signs and filled a streambed with bounders to allow vehicles to cross during wet weather.

Schmitz presented his own aerial photograph from 1953, which he said showed how at least some of the dirt roads existed then. The other old roads, he said, don’t show up on the aerial photographs because they were overgrown with grass, shrubs and trees.

But the commissioners noted that even if those roads existed in the past, the work on clearing brush and moving dirt and rocks was extensive enough that it required coastal development permits.

Under the order approved Friday, Kay must submit a plan to restore the areas within 14 days.