Homeowners, farmers, ranchers, and realtors ask supreme court to hear PLF’s seawall appeal

November 07, 2014 | By PAUL BEARD

This week, a wide and diverse array of California constituencies filed compelling letters in support of PLF’s petition for review in Lynch v. California Coastal Commission, which currently is pending before the California Supreme Court.

One letter was filed on behalf of four organizations—Beach & Bluff Conservancy, Protect the Beach.org, Seacoast Preservation Association, and Coastal Property Owners of Santa Cruz County—who together represent about 5,000 coastal residents.  Represented by the law firm, Briscoe Ivester & Bazel LLP, the organizations focus in large part on “the ‘inalienable’ constitutional right[]”  of coastal property owners to protect their homes, including with seawalls if necessary.  The residents highlight the fact that the court of appeal decision, “if it stands, has potentially sweeping application.”  After all, if the Commission can impose a 20-year expiration date on a seawall permit—in the hopes that a change in the law will give it the power to require the seawall’s removal in the future—then “there is nothing to stop the Commission from imposing time limits on all permits in the hope that some future Legislature will outlaw other kinds of coastal development.”  The majority’s decision, they argue, “will have devastating consequences for property owners all along the coast.”

Another letter was filed on behalf of the California Building Industry Association, the California Farm Bureau Federation, and the California Cattlemen’s Association.  Represented by the law firm of Rutan & Tucker, these organizations argue that the court of appeal’s majority opinion “wreaks radical changes on the existing, settled, law regarding ‘waiver’ in the context of the right to judicial review of conditions of permit issuance or government approach.”  You’ll recall that the court of appeal ruled that PLF’s clients waived their right to challenge the Commission’s permit conditions—after they vehemently objected and filed a timely lawsuit, thereby satisfying all the legal requirements to preserve a challenge—simply because they went ahead and installed their desperately needed seawall while their suit was pending. This amicus letter persuasively underscores the many ways in which the majority opinion conflicts with existing “waiver” precedents, all of which guarantee permit applicants “the fundamental right[] of access to the courts” to challenge government abuse unless there is real evidence of an actual intent to relinquish that right.

Yet another letter was filed by the California Association of Realtors, which represents the State’s 160,000 real estate brokers and salespersons.  The Association’s letter urges the supreme court to review the court of appeal opinion, which “will negatively impact the marketability and values of thousands of properties in California and also serve to increase the length, complexity, and expense of real estate sale and lease transactions in the State.”  According to the Association, “[u]ncertainties created by the Court of Appeal’s decision could also encourage more vigorous actions by permit agencies”—not just the California Coastal Commission—“who now may feel more confident in placing unwarranted demands and conditions upon property owners during the permit process.”

Last but not least, attorney Sherman Stacey, of Gaines & Stacey LLP, filed a letter from his perspective as someone “who has practiced in the area of land use regulation for the past 40 years, including more than 1,000 administrative and judicial hearings involving the Coastal Commission.”  Mr. Stacey gives a real-life account of what permit applicants face in their dealings with the California Coastal Commission—and how the court of appeal’s opinion only entrenches the powerful agency’s unfair advantage over the lives and properties of coastal residents by requiring them to choose between (1) challenging unlawful permit conditions and (2) using and protecting their properties.  Writing on the “waiver” issue, he explains:

By the Court of Appeal’s analysis, the homeowner must as a matter of course anxiously wait through a lengthy administrative and judicial process while their homes are in peril.  This creates an unconscionable advantage in favor of the state.  As though Snidely Whiplash were tying Nell to the railroad tracks, Lynch and Frick could see the train coming.  Dudley do Right is nowhere to be found.  Lynch and Frick were faced with the Hobson’s choice to risk their homes falling frrom the bluff or cave into the State’s demands.  If private parties acted like the Coastal Commission acted here (and acts in many cases) it would be considered criminal.

The diversity of interests represented by these amicus letters demonstrates the statewide importance of the legal issues presented in PLF’s petition for review. Homeowners, farmers, ranchers, and realtors alike stand to be negatlively affected by the court of appeal’s misguided opinion.  And, given the opinion’s wholesale departure from well-established case law, it is precisely the kind of case the California Supreme Court should review.