Do you have the right to protect your property from storms and erosion?

December 04, 2013 | By JENNIFER THOMPSON

Yes, according to the California Constitution and other state laws.  But sadly, residents in California’s coastal zone must constantly defend that right against the Coastal Commission and local governments.  The Commission is convinced that protecting bluff-top coastal property from storms and erosion—by building seawalls or other “shoreline protective devices”—reduces the amount of sand that would otherwise accumulate on beaches.  And since the Commission thinks that all California beaches should be available to the public—even those privately-owned areas above the mean high-tide line—it tries to do whatever it can to prevent seawall construction and repair.  The Commission would rather see people’s homes crumble into the sea than permit the building of new seawalls.  But since the Commission cannot ban all seawalls outright, it uses its land use authority to put make it as difficult as possible for property owners to build and repair these walls.  As a result, property owners must frequently resort to the courts to vindicate their rights.

Attorneys with PLF’s Coastal Land Rights Project currently represent coastal property owners who are trying to do just that.  In Lynch v. California Coastal Commission, PLF represents Encinitas homeowners Barbara Lynch and Thomas Frick.  In 2010, severe storms destroyed a seawall protecting their homes and a stairway connecting their homes to the beach.  While the City of Encinitas authorized construction of a new seawall and reconstruction of the stairway, the Coastal Commission objected.  It said the property owners couldn’t have a stairway at all and that the seawall would be subject to a 20-year expiration period.  So in 19 years, the homeowners—or subsequent owners of the property—would have to reapply to the Commission for a new permit for the seawall—with the risk that the Commission might require them to tear it out!

Fortunately, the San Diego Superior Court cried foul and reversed the Commission’s decision.  The Court said that California Law specifically allows for reconstructing the seawall because it is “the replacement of a structure destroyed by a disaster.”  The Court also held that the homeowners have the right to build a new seawall, because under state law a seawall “shall be permitted when required to protect existing structures.”  The Commission has appealed the Superior Court’s ruling to the court of appeal where PLF is defending the property owners.

In another case, PLF represents Beach and Bluff Conservancy, a group of coastal property owners in Solana Beach whose rights to protect their property are also under threat.  There, the City of Solana Beach, in conjunction with the Commission, adopted land use planning policies that make it all but impossible for coastal residents to build seawalls.  Under one of these policies, for example, property owners who want to build a home, or make improvements to an existing home, must waive their right to ever erect a seawall in the future, simply in order to obtain a building permit.  Another policy—like the one in Encinitas—also seeks to outlaw private stairways to the beach.

Such heavy-handed and misguided policies not only make it extremely difficult for property owners to use and enjoy their property, they also violate state law which explicitly grants property owners the right to build seawalls in order to protect their land.  Given that California’s Constitution specifically lists “protecting property” as an “inalienable right,” it’s pathetic that property owners must constantly remind their government about the limits on its power.  Fortunately, PLF’s Coastal Land Rights Project was formed to do just that—and it will continue that mission as long as coastal property owners suffer from government overreach.