December 10, 2013

Oral argument in Coastal Commission appeal tomorrow, in Ventura

By Oral argument in Coastal Commission appeal tomorrow, in Ventura

Tomorrow, I will argue SDS Family Trust v. California Coastal Commission in the California Court of Appeal, in Ventura, at 1:30 p.m.  This case challenges the constitutionality of a public-access easement that the California Coastal Commission seeks to exact from a family as the price of approving a permit that would allow the family simply to update an existing home and barn on its coastal property.  A San Luis Obispo Superior Court judge dismissed our case on procedural grounds, never reaching the merits of our constitutional claim.  Here’s what happened:

In May 2002, the family’s patriarch, Walton Emmick, applied for a Coastal Development Permit to connect his house to an existing well, to install a new septic system, and to refurbish the inside and outside of the residence.  A couple of months later, while that permit was being processed, Emmick lawfully pulled two over-the-counter permits to remove dry rot, and make related repairs to the roof and deck of the home.  Repairs are categorically exempt from the stringent Coastal Development Permit process, which is why they can be authorized by over-the-counter permits.  Emmick completed the work by January 2003, and he died just two months later.  No further work on the property has been done since the repairs were completed, and Emmick’s three daughters inherited the property — and the daunting task, as out-of-towners, to see the then-pending Coastal Development Permit through to final approval.

The County’s Planning Department finally approved the Coastal Development Permit for the well connection, septic system, and house remodel in March 2004 — over a year after Emmick completed the Repair Permit work.  The Coastal Development Permit mistakenly included a demand that the family dedicate a public-access easement along the shoreline of its property.  The permit also mistakenly referred to the Repair Permit work that already had been authorized and completed over a year earlier; again, because the repairs were exempt from the Coastal Development Permit process, there was no reason to reference those completed repairs.  The family did not sign or in any way exercise the defective Coastal Development Permit.  Instead, in December 2004, it applied for a new Coastal Development Permit for the same work (i.e., well connection, new septic system, and house remodel), along with reconstruction of a dilapidated barn.  The Planning Department approved this second Coastal Development Permit and even eliminated one-half of the public-acccess easement it demanded in the first one.  Seeing no reason why it should have to give up any easement to the government, the Family appealed to the County Board of Supervisors, which removed — in its entirety — the easement exaction.

When environmentalist groups appealed the County’s decision to definitively eliminate the easement exaction, the Commission reinstated it.  Like the County, the Commission knows it cannot constitutionally justify taking from the family a public-access easement without paying just compensation.  So it has resorted to an outrageous tactic:  The Commission claims that, because Emmick performed repairs in 2002 that were later (and unnecessarily) referenced in the first Coastal Development Permit, and because the family never appealed or sued over the first Coastal Development Permit, the permit’s terms and conditions — including its easement exaction — forever bound the family.  According to the Commission, it is merely enforcing an existing and binding easement exaction — i.e., the one contained in the first Coastal Development Permit approved in 2004.

Misled by the Commission’s novel and confused arguments, the trial court agreed and dismissed the family’s action.  We are asking the Court of Appeal to reverse the trial court’s dismissal and hold that the Commission’s easement exaction is unconstitutional, because it bears no relationship to the impact of the family’s modest remodel efforts.

A decision should be forthcoming in the next two to three months.

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