PLF petitions Cal Supremes in seawall case

October 20, 2014 | By PAUL BEARD

Today, we asked the California Supreme Court to review Lynch v. California Coastal Commission.

The case involves a challenge to conditions imposed by the Commission on two families’ seawall permit.  The families reside in adjacent bluff-top homes in the City of Encinitas (San Diego County).  A series of storms and years of erosion destabilized their bluffs and existing protective devices, and destroyed the lower portion of their shared stairway to the beach.  The City approved a permit to install a new state-of-the-art seawall that would have a projected life of 75 years.  But given the location of the property, the families also had to obtain a separate permit from the Commission.  That’s where the families’ nightmare began.

Under the Coastal Act, a seawall permit must be approved if necessary to protect homes against erosion and if designed to eliminate or mitigate impacts to local shoreline sand supply.  The Act’s seawall provision is probably the Commission’s most reviled, since it requires the agency to allow coastal landowners to protect their homes against the forces of Nature—and everyone knows the Commission is concerned more with the alleged aesthetic and other impacts of a protective device than it is with the safety and security of property owners’ lives and homes.

Because of the Commission’s dislike of seawalls, it decided to impose a novel condition.  It required the families’ seawall permit to expire in 20 years, after which the families would have to apply for a new permit to keep or remove the device.  This, despite the fact that the families fully mitigated for seawall impacts through seawall design and the payment of over $30,000 for shoreline sand supply.  As the Commission admits, however, the idea behind the expiration date is not to eliminate or mitigate seawall impacts.  It is to give the agency flexibility in the future to force the seawall’s removal, if legislative or judicial change to the law eliminates the right of coastal landowners to such protection.  For years, the Commission’s lobbyists have been hard at work in Sacramento, trying to persuade the Legislature to eliminate or significantly erode property owners’ rights, including their right to protect their homes with protective devices.  So far, the right thankfully remains intact, but no one can predict what a Legislature increasingly hostile to property rights and individual freedom will do in the coming years to deprive owners of that right.

A second condition on the seawall permit says the families cannot replace the lower portion of their private stairway to the beach, which was destroyed in storms that hit San Diego in 2010. The Commission relies on City policies that require a permit to replace bluff-related structures and purportedly call for the phasing out of private stairways in particular.  In so doing, the Commission ignored an important Coastal Act provision that allows individuals to replace—without a permit—any structure destroyed by a disaster.  State law trumps conflicting local policies:  The Commission didn’t even have jurisdiction to permit or deny the stairway’s replacement.

The families objected to the two conditions both before and at the Commission hearing.  And after the Commission made its permit decision, they filed a lawsuit challenging the conditions in the San Diego Superior Court.  Given the precarious nature of their bluffs and the prospect of future erosion, the families could not wait until the lawsuit was resolved to build their new seawall.  The Commission insisted that the families sign and record deeds recognizing the existence of the conditions before the agency would issue a building permit to proceed with the seawall.  The deeds themselves do not require the families to consent or agree to the conditions.  And, importantly, they contain a clause that specifically recognizes the possibility that the conditions might be found by a court to be invalid and unenforceable.  In light of the deeds’ language, and with their lawsuit pending, the families signed and recorded the deeds, pulled their building permit, and installed the seawall.

At no time did the Commission advise the families that, in its view, recording the deeds and proceeding with the seawall would undermine their right to challenge the conditions.  And at no time did the Commission demand that the families dismiss their lawsuit as a condition of obtaining the building permit.  As the families would come to find out, the Commission was hoping to set up a legal trap for them.

One year after the lawsuit was filed, the Commission asked the Court to dismiss the case, on the theory that the families had waived their right to challenge the conditions by recording the deeds and proceeding with the seawall.  The superior court saw right through the Commission’s tactics and ruled against the Commission.  The court said that, under the circumstances, the families neither accepted the conditions nor failed to challenge them.  To the contrary, all the evidence pointed to their diligent and consistent objection to the conditions, and the filing of a timely and valid claim.  The Commission was easily on notice that the families did not agree to the conditions.  On the merits of the families’ claim, the superior court struck down the two permit conditions, saying they were unsupported by the Coastal Act and violated federal constitutional principles.  As to the 20-year expiration date, the court held that it was a “power grab” by the Commission to simply reserve to itself the power to have the seawall removed in 20 years—a power it currently does not enjoy.

In a 2-1 published decision, the court of appeal reversed.  My co-counsel on the case, Jennifer Fry Thompson, recently blogged about the court’s ruling and the vigorous dissent filed by Justice Nares.  In essence, the majority found that the families waived their right to challenge the conditions by recording deeds and proceeding with the seawall project.  The court also held that, even if the families hadn’t waived their right, the permit conditions were well within the Commission’s power to impose.  Justice Nares penned a 25-page dissent that took the majority to task on all points, and would have affirmed in full the superior court’s judgment.

Our petition asks the California Supreme Court to take up this case, because the majority’s decision conflicts with precedents on issues that are critically important to property owners. We argue that the majority’s waiver analysis conflicts with well-established precedents of the California Supreme Court and other courts of appeal.  The majority ignored the superior court’s waiver findings—contrary to precedents that require appellate courts to defer to such findings and resolve al factual conflicts in favor of the superior court’s conclusion.  And it made no attempt to consider all the facts in the record and answer the only relevant question raised by a claim of waiver:  Did the families intend to relinquish their right to challenge the conditions?  Instead, the majority minted a new test that raises the bar for property owners who want to challenge unconstitutional or otherwise unlawful permit decisions:  A property not only has to adequately object to a permit condition, and then file a timely and valid claim challenging it in court, it has to also forgo all use of his property as described in the permit decision pending resolution of his lawsuit—which can sometimes take years.  No court precedent supports the majority’s burdensome rule, which presents property owners with an impossible dilemma:  (1) forgo your right to challenge extortionate permit conditions or (2) forgo your right to use and protect your property.

We also urge the California Supreme Court to review the majority’s rulings on the permit conditions, which affect all property owners in the State’s coastal zone.  On the 20-year expiration date, the majority held that the Commission has the plenary power to impose whatever condition it wants on a seawall permit—even if the condition does not actually eliminate or mitigate seawall-related impacts.  That conflicts with the Coastal Act, a key court of appeal precedent (Ocean Harbor House Homeowners Ass’n v. California Coastal Commission), and United States Supreme Court precedents (e.g.Nollan v. California Coastal Commission)—all of which say that permit conditions that burden a property right (like the right to protect one’s home) must actually mitigate for the alleged impacts caused by the proposed use (like installation of a protective device).

On the denial of the stairway replacement, the majority applied local polices that say (1) a permit is required for replacement of bluff-related structures (like a stairway), and (2) private stairways are to be “phased out.”  In so doing, the majority allowed local policies to take precedence over a state law provision in the Coastal Act that specifically exempts from the permit requirement the replacement of any structure destroyed by a storm.  The majority’s ruling conflicts with well-established precedents that say that, where there is a conflict, state law trumps local law.

The Commission will have an opportunity to respond to our petition, and we expect a decision from the California Supreme Court in 60 days.