February 8, 2013

PLF is defending property rights from the California Coastal Commission … again

By Jonathan Wood Attorney

Today, PLF filed a lawsuit in Marin County Superior Court asking that the court invalidate three burdensome and unreasonable permit conditions that the California Coastal Commission imposed on property owners in violation of the Constitution.

In this case, Daniel Altman and Avi Atid want to restore an important historic structure on Tomales Bay, and use the restored structure as a bed-and-breakfast for visitors to that natural treasure.  The structure, the Marshall Tavern, was constructed in 1873, and, in the 1970s, hosted performances by Joan Baez, Neil Young, Mimi Farina, Van Morrison, and other well-known musicians.

This is the condition of the structure today.

Prior to Altman and Atid’s purchase of the property, the building fell into disrepair, and has been vacant since the early 1990s.  However, the Archaeological Resource Service reports that if the building is renovated and rehabilitated, as Altman and Atid propose, it would be a significant historic structure for the local community.  Marin County approved Altman and Atid’s application to restore the structure as a small bed-and-breakfast, finding that it would not result in any adverse environmental or visual impacts and would restore an important local landmark.

The Coastal Commission is demanding that these unrelated pilings be removed (an expensive and environmentally risky process).

Having received a permit from the county, Altman and Atid applied for a coastal development permit from the Coastal Commission.  In return for the permit, the Commission demanded that Altman and Atid: construct a 100 foot-long public pier next to the bed-and-breakfast that must be accessible by the public at all hours; dedicate a 5 foot-wide strip of their property exclusively to public access that must be open to the public at all hours, including a walkway in front of the windows to guests’ rooms; remove pilings on a separate parcel, at great expense and risk to the environment; and record a deed restriction limiting their use of both parcels.  The Coastal Commission’s Staff Report indicates that this last condition is intended to preclude Altman and Atid from making any productive use of their other parcel.  These conditions could make the operation of a peaceful bed-and-breakfast impossible, and the project prohibitively expensive.

The lawsuit challenges the constitutionality of the public access requirement, the piling removal requirement, and the loss of development rights on the separate parcel under Nollan and Dolan.  These cases held that conditioning a development permit on the forfeiture of property rights is unconstitutional unless the conditions are related to the effects of the project and roughly proportional to those effects.

Daniel Altman points out the public access that will pass in front of guest’s windows

The conditions imposed by the Commission are not related and proportional to the effects of the restoration.  Because the project calls for the restoration of an existing building, it will not affect views of the bay or public access.  Therefore, the owners cannot be required to give up their property to provide new public access.  The piling removal requirement is grossly disproportional to the project, which will require only minimal fill to repair and reinforce the tavern.  Complying with this condition is anticipated to cost the owners in excess of $100,000 and could result in negative environmental effects in the bay.  Finally, the future uses of the neighboring parcel are wholly unrelated to the project.  These burdensome conditions, as well as the requirement to construct a costly public pier, show that the Commission was simply trying to extract whatever it could from these unfortunate property owners.  Thankfully, the Constitution doesn’t abide such “out and out plan[s] of extortion.”

For more information about the case, you can check out PLF’s press release.

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