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California Supreme Court,
Administrative/Regulatory

Jul. 14, 2017

Ruling further erodes property rights

Last week, the California Supreme Court ruled against two Encinitas homeowners who challenged the California Coastal Commission’s expiration date placed on the seawall built to protect their homes.

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Cliffs on the coast in Encinitas (Shutterstock)

Like an unprotected bluff facing relentless storms, property rights along the California coastline continue to erode. Last week, the California Supreme Court issued its decision in Lynch v. California Coastal Commission, 2017 DJDAR 6686 (July 7, 2017), ruling against two Encinitas homeowners who challenged the California Coastal Commission’s expiration date placed on the seawall built to protect their homes.

The landowners of the two bluff-top homes, Thomas Frick and the heirs of Barbara Lynch, had sought a Coastal Development Permit to replace a seawall after it was destroyed in a 2010 storm. The Coastal Commission granted the permit, but with a severe catch: the permit would expire in 20 years. At that point, the landowners would need to ask the commission for another permit. If the commission refused, the seawall would need to be torn down. The condition is all the more onerous considering that the commission also required that the seawall be state of the art — designed to survive at least 75 years — at a final cost of approximately one million dollars.

The two families knew the condition seemed unfair, and they suspected that it might also be unlawful. They contested the condition throughout the commission proceedings. The commission issued the families a final development permit, and the families accepted it under protest — waiting any longer could mean the loss of their homes. They built the seawall needed to shore up the deteriorating bluff face, but first filed a lawsuit, arguing that the 20-year expiration date was unlawful.

The trial court in San Diego agreed, finding that the condition was a violation of the families’ statutory and constitutional rights to protect their property from erosion and other natural hazards. The Coastal Commission appealed, arguing not only that the condition was acceptable, but also that the families had waived their right to challenge the permit conditions when they built the seawall. The commission argued that the families should have waited to build the seawall until all the legal challenges were resolved — a process that generally takes years in the best of circumstances. The Court of Appeal sided with the commission, so the families, represented for free by Pacific Legal Foundation, appealed to the California Supreme Court.

Unfortunately, the California Supreme Court agreed with the commission that the landowners should have waited to build. The court stated, “[t]he crucial point is that they went forward with construction before obtaining a judicial determination on their objections [and] effectively forfeited the right to maintain their otherwise timely objections.” In other words, procedurally, the families had done everything right under the law when they filed their challenges. And even though their challenge did not involve any physical feature of the seawall, the court held that building the wall served as an acceptance to all the conditions placed on it.

“This decision makes it harder for property owners to fight when the Coastal Commission imposes unlawful conditions on permits to use or build on one’s property,” said PLF Executive Vice President and General Counsel John Groen, who argued the case on behalf of the homeowners. “It is particularly bad for small property owners. The court has shrunk their right to move forward with projects under protest while litigation proceeds. Instead, they will be forced to put their lives and projects on hold for years while a court battle over an unlawful condition goes on. The result is predictable: many property owners will be forced to accept unlawful, even unconstitutional, restrictions on their property simply because they can’t afford to fight.”

The California Coastal Act requires the commission to grant permits for structures to protect shoreline activities or existing buildings. But the commission has continually worked to limit this statutory command. While for years the language was interpreted to require seawall permits whenever a previously permitted house was in danger, in the last few years the commission has pushed for an interpretation that only homes built before Jan. 1, 1977, could qualify for a protective device. AB 1129, a bill that would have amended the Coastal Act to require that definition, recently stalled in the California Assembly.

Previous failed legislative efforts tried to change the “shall be permitted” language of the Coastal Act to “may be permitted.” And the commission has an unofficial policy of requiring all new development permittees to waive their right to build future shoreline protective devices. The end goal of the commission is “shoreline retreat,” where existing coastal development vanishes and cannot be rebuilt. For the commission, homes crumbling into the Pacific Ocean is a desired result.

Placing expiration dates on seawalls gives the commission a chance to meet their current statutory obligation to issue seawall permits, with the hope that future legislative changes will give them authority to deny a permit, order the wall removed, and give nature an opportunity to destroy the homes the walls were protecting.

Under the California Supreme Court’s new ruling, future families placed in a similar situation to the Fricks and the Lynches will have an unenviable choice: challenge the commission’s unlawful conditions and risk losing their home in the meantime, or acquiesce and hope that the law stays on the side of property owners.

Despite last week’s setback, Pacific Legal Foundation will continue their work to shore up property rights and protect all property owners across the country, including those along California’s coastline.

#328786

Ben Armistead

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