Posted on August 26, 2024
Milwaukee Brewers owner, construction company are defendants as plaintiffs allege a violation of the California Coastal Act
Two Broad Beach residents are entrenched in a dispute concerning sand excavation and the presence of heavy construction equipment in the tidal and intertidal zones, which is proscribed by the Coastal Act.
“This is a case about a private property owner using a public beach as their own personal sandbox and the disturbing conversion of a public natural resource (i.e., sand from Broad Beach) for a nearby homeowner’s personal, private use.” So states the introductory sentence in a civil complaint filed in Los Angeles Superior Court by Los Trancos Management Services, LLC against 2XMD Partners, LLC, a California limited liability company owned by Mark Attanasio, billionaire businessman and owner of the Milwaukee Brewers baseball team. The complaint also names JILK Heavy Construction, Inc., a California corporation that works on a seawall improvement project for Attanasio, as a defendant. The project involves several permits issued by the city, as discussed more fully below.
Broad Beach residents Tara and James Kohlberg are the beneficiaries of the plaintiff Los Trancos Management Services, according to Patrick Breen, their attorney. James is the son of Jerome Kohlberg, who founded the global investment company Kohlberg, Kravis, Roberts & Co.
The Malibu Times caught up with Tara Kohlberg, who stated the couple’s action was filed to stop unlawful work on the beach because by moving the sand, the construction company has “disturbed a public natural resource for personal, private use.” The complaint, supported by video clips and photographs, accuses JILK Heavy Construction of operating enormous excavators right in the tidal and intertidal zones, damaging fragile ecosystems and habitats, and leaking oils, thereby exposing local wildlife and beachgoers to hazardous byproducts. Further, the Kohlbergs allege that Attanasio’s project also restricts public access to the entirety of the public beach. The plaintiffs allege a violation of the California Coastal Act and seek immediate cessation of improper excavation — which Attanasio’s attorney, Fred Gaines, states has already occurred. The Kohlbergs also seek nuisance damages.
Construction equipment and materials is shown on a lot in Broad Beach. A lawsuit has been filed sand excavation and the presence of heavy construction equipment in the tidal and intertidal zones.
The parcels involved
Attanasio owns two parcels with direct access to Broad Beach, including the 0.84-acre 31430 parcel, which is improvedwith an existing single-family home, landscaping, and a seawall. He also owns the approximately 0.27-acre parcel that is unimproved. He purchased both properties in 2007.
The complaint notes that defendant 2XMD, Attansio’s company, obtained several permits to repair and reinforce a seawall at the 31430 parcel. Specifically, on Jan. 1, 2022, the city issued building permit No. 22-0159 authorizing the remediation of the existing timber bulkhead seawall for that parcel. In October 2022, the city issued an emergency coastal permit authorizing the “repair and reinforcement of damaged timber return walls servicing as a seawall that areexposed to wave uprush at high tides.” That permit was subject to 16 conditions of approval. The complaint notes one of those COAs admonished, “at no time shall any materials or mechanized equipment be located within the tidal zone,” and that “no machinery shall be placed, stored or otherwise located in the intertidal zone at any time, unless necessary for the protection of life and/or property.”
The complaint states that after obtaining those permits, 2XMD unlawfully used portions of the 31438 parcel for a crane platform and staging area, whereupon the city filed code violation No. 24-015 in connection with that unlawful work.
2XMD then obtained another emergency coastal development permit, ECDP 25-006, authorizing the use of the 31438 parcel, “for the placement of a crane platform and staging area above the tidal zone located at the 31438 property to complete seawall repairs of a damaged timber at a beach front property [the 31430 parcel].” That permit had an identical condition of approval precluding any equipment or materials being located within the tidal zone and providedthat no machinery shall be placed in the intertidal zone, unless necessary for the protection of life and/or property. Finally, on March 26, the city issued another permit allowing the use of a temporary crane foundation for offsite work on the 31430 parcel.
The gravamen of the Kohlbergs’ complaint alleges, “At no point in the history of permits for the parcels were defendants permitted to, (1) operate heavy machinery in the tidal zone or (2) remove sand from the public beach for the exclusive benefit of the parcels.”
The plaintiffs seek an injunction to protect Broad Beach “after filing several complaints with the City of Malibu and the California Coastal Commission,” the complaint states. Video exhibits linked within the complaint document the extent of the illegal dredging work, Tara Kohlberg stated.
“I have personally seen patches of gasoline on the beach.” she said. “The excavators on the beach in the tidal zone destroy sea life and harm the fragile ecosystem. Excavators are also on the hillside. They are taking sand from public property and depositing it over the seawall — we don’t know for sure, but we assume they are doing so to use the sand as backfill to support the seawall.”
Kohlberg also stated that her attorneys’ one-month-long efforts to reach officials at the City of Malibu and the California Coastal Commission to seek their assistance in convincing the defendants to cease operating the excavators on the beach have been entirely unsuccessful.
“We went through the appropriate channels and there was no enforcement, so we had to act,” she said.
Attanasio’s attorney assures that the excavation in issue has ceased and notes no sand was needed for the project.
When The Malibu Times reached out to Attanasio and his legal counsel, Fred Gaines of Gaines & Stacey, LLP, they stated that no one from the City of Malibu or the Coastal Commission had contacted them about the Kohlbergs’ concerns, but they were unsure whether such agencies had reached out to JILK Heavy Construction.
Gaines noted that 2XMD doesn’t need sand for the project and did not want any sand from the public beach.
“Mark Attanasio has served on the board of the Trancas HOA for 15 years and he has actively participated in the Broad Beach restoration efforts for years,” Gaines noted.
“It was very important to me that the company I hired to do this work was a well-established company and used union workers,” Attanasio told The Malibu Times, adding that JILK is very respected in the industry, specializing in working on piers, wharfs, sea walls, bridges, and geotechnical construction with clients including the U.S. Navy, National Parks Service, the cities of Santa Monica and Newport Beach to name a few.
“I have lived on Broad Beach for 25 years and have always worked hard to be a good neighbor as well as to follow all the laws, permitting requirements, and local ordinances.” Attanasio stated, “When I think about Broad Beach and all the public beaches, I think of families, including my grandkids, being able to safely enjoy the natural beauty of this precious coastal resource for years to come.”
“Getting involved in a lawsuit with our neighbors is not something we would ever want to do.” Tara Kohlberg said. “However, my husband and I feel a social responsibility to protect this beach and to do what we can to facilitate the healing of the erosion and the ocean.”
“It’s a very fragile ecosystem — the ocean is home to all of the marine life. We’ve had a baby seal on our steps after a storm,” she said. “We don’t need excavators polluting the ocean, harming the sea life and destroying the foundation of the beach!”
The complaint alleges a violation of the Coastal Act, noting that the term “development” in that law, is defined as including, “discharge or disposal of any dredged material or any gaseous, liquid, solid or thermal waste; grading, removing, dredging, mining or extraction of any materials; change in the density or intensity of use of the land.”
Kohlberg stated, “The joy and magic Broad Beach provides us and the community is endless — it is our responsibility to preserve it to the best of our ability.”
As documented in public records, Kenneth A. Ehrlich is the manager of defendant entity, 2XMD, and Attanasio, a former employee of Crescent Capital Group and current owner of Major League Baseball’s Milwaukee Brewers, is the beneficial owner.
Referring to Ehrlich, Kohlberg stated, “I don’t know how the attorney for the Broad Beach Geological Hazard Abatement District, which is trying to restore the beach, can also be the head of the LLC that is contracting for the illegal dredging and using the sand for their own personal use.”
The Malibu Times caught up with Ehrlich who stated, “I withdrew my representation of 2XMD in this matter as soon as it became clear there was litigation between two BBGHAD owners.”
