PLF supports challenge to Coastal Commission's expropriation of private bridge

March 29, 2012 | By PAUL BEARD

Last week, we filed an amicus brief in Bay Island Club v. California Coastal Commission, which is pending before the California Court of Appeal in Orange County.  The dispute arises out of yet another illegal attempt by the Commission to use the permitting process to advance its agenda of destroying rights in private property along the coast.

Bay Island Club is a cooperative of residents who live on Bay Island, off the coast of Newport Beach, California.  A channel, whose waters the City owns, separates the island from the mainland.  A 1927 deed and a 1928 court judgment recognize the Club’s exclusive right to build, maintain, and use a private bridge for residents’ access to and from the island.  Over the years, the Club has acted to keep trespassers off its bridge, including by erecting a gate on the mainland side.

In 2006, the Club applied to the Commission for a permit to rebuild the bridge.  The new bridge would be safer and relocated so that the public has more shoreline access for recreation along the waters.  The Commission approved the permit, but on the condition that the Club make its private bridge public—for 24-hour access to whomever wants to use it.  The reason?  Well, the public just needs the extra access!  As the Commission states in its findings, “[n]o public access accross the bridge or on the island is presently available,” and public access on the bridge would be “beneficial.”  So, in the Commission’s eyes, a public need creates a public right in private property.

The Club is not the only one to object to the Commission’s demand for public access.  Because of the risk of injury to the public from recreational use of the bridge, the City also opposes making the Club’s bridge public.  Of course, as is often the case, the Commission could not care less about what a municipality thinks.

The Club sued the Commission, arguing that the Commission’s extortionate condition violates Nollan v. California Coastal Commission (note the same defendant).  As many of our readers know, in Nollan—a case briefed and argued by PLF attorneys in 1987—the United States Supreme Court struck down a similar attempt by the Commission to condition a property owner’s building permit on his agreement to relinquish a public-access easement across his property.  The property owner’s new home had no impact on public access, so there was no reason for the Commission to force him to provide public access.  The High Court agreed, holding that a permit condition having no connection to the impact of a proposed project is nothing but an “out and out plan of extortion”—and a violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution.  So it is here, as well:  The Club’s new bridge has no impact on existing public access in the area; so there’s no justification for the Commission’s demand that the Club open up its bridge for around-the-clock use by the public.

Somewhat surprisingly, the trial court sided with the Commission, endorsing the agency’s “a public need is a public right” argument.  With all the briefing completed, the Court of Appeal will now set oral argument in this case.  Stay tuned for updates.