ENCINITAS, CA; October 20, 2014: Pacific Legal Foundation (PLF) today asked the California Supreme Court to review the California Coastal Commission’s attempt to restrict bluff-top coastal homeowners from building seawalls to protect their property from ocean-caused erosion.
In filing a petition for review with the High Court, PLF represents two Encinitas bluff-top homeowners, Barbara Lynch and her neighbor Thomas Frick. The commission is refusing to give them anything other than a temporary permit for a seawall; it is demanding that they re-apply for a new permit after 20 years — a demand that could force the seawall to be torn down at that time.
In April, 2013, a trial court struck down this restriction as an “arbitrary and unreasonable” violation of the commission’s duty under the Coastal Act to allow people to protect their property from erosion.
This past September, a panel of the California Fourth District Court of Appeal reversed that decision by a 2-1 vote and sided with the commission. The panel’s majority noted that landowners’ legal right to protect their property from erosion is subject to any limitation the commission wants to impose. However, the dissenting judge held that regulations cannot be so excessive that they cancel statutory and constitutional rights, and imposing a 20-year expiration date on a seawall permit was an unnecessary, extreme, and invalid demand that did not constitute genuine mitigation.
Citing to PLF’s 2013 U.S. Supreme Court victory in Koontz v. St. Johns River Water Management District, the dissenting judge recognized that property owners have a constitutional right to use and protect their property, and permit conditions cannot curtail that right unless they’re needed to mitigate for real and measurable impacts caused by the proposed use of the property. A seawall does not create any impacts that require time-limits on the permit, the dissent held.
The 2-1 panel approved the commission’s outright denial of a permit to replace the lower portion of a staircase from the bluff to the beach that was destroyed in the 2010 storms that hit San Diego. The dissent would have struck down the commission’s denial on the basis that state law specifically exempts disaster-related replacements from the commission’s jurisdiction.
The appellate court majority also held that the homeowners waived their right to challenge the time-limit on the seawall and the denial of their right to rebuild their stairway, by going ahead and rebuilding. But as PLF’s petition to the Supreme Court notes, the homeowners in fact preserved their right to challenge these conditions by clearly objecting to them at every stage, and then timely challenging the conditions in court. They signaled unambiguously that they were building the seawall subject to their right to challenge the illegal and unconstitutional aspects of the seawall permit. As a practical matter, they had no choice but to proceed this way, because of the urgent need to rebuild in order to protect their property — as is their right under state law and the U.S. Constitution.
“As the dissent recognized, the Coastal Commission is trampling on the fundamental right of these homeowners to preserve and protect their property and their homes,” said PLF Principal Attorney Paul J. Beard II. “We are asking the California Supreme Court to hear this case so that these homeowners, and all property owners along the coast, can be protected from the coastal commission’s obsessive crusade against seawalls. It’s a crusade that amounts to an unconstitutional war on property rights.”
Beard successfully argued the 2013 U.S. Supreme Court Koontz case. In that PLF victory — as noted by the Fourth District dissent in this litigation — the Supreme Court affirmed that regulators can’t impose disproportionate or unrelated conditions on land use permits — i.e., conditions that are not tied to impacts created by the proposed property use. PLF’s Koontzvictory built on an earlier PLF triumph at the U.S. Supreme Court that established the same principle — the 1987 case of Nollan v. California Coastal Commission.
The homeowners’ troubles date back to December, 2010, when a severe storm and erosion destroyed their seawall and the lower portion of their long-existing stairway that led from their homes down to the beach.
“The Coastal Commission picked up where the violent storm of 2010 left off, by mounting a frontal assault on these homeowners,” said Beard.
The City of Encinitas gave Lynch and Frick permission to rebuild the seawall and the stairway. But the Coastal Commission balked, and refused to affirm that approval. The commission denied permission to replace the stairway, and would grant only a temporary permit for a replacement seawall. After 20 years, the property owners would have to apply for a new seawall permit or tear down the structure.
“We are very grateful that PLF is helping us defend our rights against the Coastal Commission’s abusive actions,” said Thomas Frick. “The commission is an agency that has gotten way too much power. At some point, you’ve got to make a stand and say, this is just unfair. But that can be expensive. If Pacific Legal Foundation weren’t standing with us, we wouldn’t be able to go forward.”
About Pacific Legal Foundation
Donor-supported PLF is a watchdog legal organization that litigates for limited government and property rights in courts nationwide. Up and down the California coast, PLF is the leading litigator against abuses of coastal property rights by governments at all levels.
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