In this appeal, we are defending a San Diego Superior Court ruling in favor of two families with bluff-top homes along the coast in the City of Encinitas. After years of costs and delays, the families finally obtained a City permit to replace an older, permitted bluff retention structure with a new state-of-the-art seawall, and to rebuild the lower portion of a private staircase down to the beach, which storms had destroyed in 2010. With the City permit in hand, the families still faced another battle: They had to obtain a separate permit from the California Coastal Commission.
The Commission has made it clear over the years that it detests all things private—especially seawalls that protect homes and private staircases to the beach (though—surprise!—not public staircases). Unfortunately for the Commission, both the Coastal Act and constitutional law guarantee individuals’ right to protect their homes (yes, even with seawalls), and their right to repair and maintain private amenities like staircases. Nevertheless, the Commission’s ideological contempt for private property rights drove the agency to impose two illegal conditions on the families.
First, it required the families’ seawall permit to expire in 20 years from the date of permit approval; they’d have to return to the Commission in 19 years to apply for a new permit to (1) take down the seawall, (2) modify it, or (3) obtain re-authorization to keep it as is. This, despite the fact that the seawall has a natural life of 75 years! In explaining why the expiration date was necessary, the Commission was astonishingly open about its purpose. It wants to preserve its “planning options” should changes in the law—whether legislative or judicial—allow it to deny the families a seawall when they re-apply in 19 years.
Second, the Commission denied the families the right to rebuild the lower portion of their staircase. The reason? Aesthetically, private staircases (though oddly enough, not public ones) are undesirable. Never mind the fact that, as a repair and maintenance activity necessitated by a natural disaster, the rebuilding of the staircase is exempt from the Commission’s jurisdiction. Simply put, it had no authority to deny the work.
The families sued the Commission in superior court and won. The court struck down both conditions. With respect to the seawall expiration date in particular, the court concluded the Commission was engaged in a “power grab.” The court’s ruling was a great win for the families and for coastal landowners everywhere.
The Commission’s Reply Brief is due in the coming weeks, and that will be followed by oral argument. Stay tuned for news on the decision in the months ahead.