February 7, 2018

Coastal property owners do not need to jump through meaningless hoops to get to the courthouse

By Jeffrey W. McCoy Attorney

The California Coastal Act was designed to preserve coastal resources and public beach access while also protecting private property rights.  In furtherance of the last goal, the Coastal Act protects the right of property owners to build seawalls and other devices to protect their homes from storms and erosions.  Yet, over the past few years, the California Coastal Commission has routinely required homeowners to waive this right when they apply for a permit to modify their home.

Dr. Mark and Bella Greene’s experience was no different. A few years ago, the Greenes bought a modest home in Playa del Rey, Los Angeles, in anticipation of their upcoming retirements.  They had planned to remodel the home, including reinforcing the existing structure to meet more modern standards concerning earthquakes, increasing the interior square footage and exterior deck space, and adding a short staircase and chair glide to allow Bella Greene to avoid the use of stairs and the potential exacerbation of knee problems.

The Greenes had little trouble securing a permit from the City of Los Angeles; their plans complied with the City’s zoning ordinances and they requested no variances.  They had a much more difficult time with the Coastal Commission.  Before the Coastal Commission would issue a permit, it required the Greenes to change the plans for their remodel and (as the Commission requires of every property owner) waive their right to build any protective device in the future.

The Greenes challenged the Commission’s imposition of these two conditions.  Last month, the Commission filed a demurrer, arguing that the Greenes cannot challenge the condition requiring them to waive their shoreline protection rights because they did not object to the condition at the Commission hearing.  But why would the Greenes’ objections have fared better than all the others who have objected to the same permit condition in recent years—and been ignored by the Commission?

The Commission has imposed this waiver condition on every coastal property owner seeking a development permit since at least 2014. Still, the Commission argued in its demurrer that the Greenes should have objected to the condition because the Commission might have removed it. That is questionable, especially because the Commission has continued to require property owners to waive their shoreline protection rights even after courts ruled against the Commission on the issue.

This week, PLF filed an opposition to the demurrer. The opposition argues that property owners are not required to jump through meaningless hoops to vindicate their property rights. The position of the Commission is clear (and has been clear for over three years): it believes that it can impose a shoreline protective device waiver on property owners. That position is wrong, and the Greenes should have an opportunity to show the court why the Commission’s actions are illegal.

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