“Private” property does not mean “public” property, the Fourth District Court of Appeal has told the California Coastal Commission in Bay Island Club v. California Coastal Commission.  The case arose from the Commission’s decision to permit the Bay Island Club to rebuild its bridge connecting Balboa Peninsula to Bay Island in Lower Newport Bay in the City of Newport Beach, but only on the condition that the new bridge be opened to around-the-clock public access.  The Club lost its challenge to the public access condition in the trial court, but prevailed on appeal.  What is more, the Court of Appeal decided not to order the usual remedy of remanding the matter to the Commission to give it another chance to impose the same condition for different reasons, opting instead to simply strike the offending condition from the otherwise valid permit.  Briscoe Ivester & Bazel LLP represented the Club before the Commission and the trial and appellate courts.

The Club is a non-profit cooperative that purchased the land comprising Bay Island by 1906.  The Club’s 26 members are each entitled to build a home on Bay Island.  In July 1927, the Club was granted a bridge easement to cross the channel that had been dredged between Bay Island and Balboa Peninsula.  In December 1927, the City of Newport Beach accepted a separate deed for the property comprising the channel, subject to the Club’s bridge easement.

To resolve possible confusion over property rights around Newport Bay, in 1928 the City brought a quiet title action against the Club and other property owners along Balboa Peninsula.  After a trial that year, the court entered a judgment that quieted the Club’s title to Bay Island and held that the City owned the land comprising the channel.  In doing so, the court found that the City’s title to the channel is subject to the Club’s easement “for private road and bridge purposes across said land”.

Over the next eight decades, the Club maintained a small private footbridge to Bay Island.  As the City of Newport Beach grew up around the island, the Club posted guards and “no trespassing” signs, as well as a gate, at the mainland end of the bridge to control access.  The current bridge, which carries all utilities to Bay Island, does not meet seismic standards or the accessibility requirements of the Americans with Disabilities Act.

In 2006, the Club applied for a permit from the Commission to replace the current gated bridge.  The new bridge’s proposed free-span design will improve boating, swimming, and fishing conditions in the channel because it will remove all 14 pilings supporting the current bridge from the channel.

The Commission, though, had other ideas.  The Coastal Act requires the Commission to ensure “maximum access” to the coast for the public, “consistent with . . . the need to protect . . . rights of private property owners”.  (Cal.Pub. Res. Code § 30210.)  Staff read this policy to mean that “the only way” the new bridge could be approved “would be to make it public”.  Staff flirted with several theories for why this should be.  They first suggested that the channel might be subject to the public trust doctrine, which imbues tide and submerged lands with a special servitude for public commerce, navigation, fisheries, and ecology.  But staff abandoned that after the Club proved that the channel was never subject to the public trust doctrine because it was originally dry land.  Staff then floated the idea that the public may have gained a prescriptive right to use the bridge through a combination of trespassing and the Club’s acquiescence.  But staff backed down when the Club pointed out that it has always taken reasonable steps to keep the public off, and that the law prohibits the Commission from declaring prescriptive rights anyway.  (See LT-WR, L.L.C. v. California Coastal Commission (2007) 152 Cal.App.4th 770, 806 (Commission has no jurisdiction to “decree[] the existence” of prescriptive public rights).)  Staff then toyed with the notion that public access might be justified to mitigate adverse impacts caused by the new bridge, but quickly retreated when shown that the new bridge would actually improve public access to the channel.

In the end, the sole justification for requiring public access was staff’s finding that the public had “existing rights” to use the bridge because it spans a “publicly owned waterway”—never mind that the owner of that waterway, the City of Newport Beach, objected to the condition.  Staff also dismissed the 1928 quiet title judgment’s finding that the Club had an easement for “private” purposes as but a “passing reference” signifying nothing, because the Club’s easement deed did not state that the Club could exclude the public.  In June 2009, the Commission approved the permit to replace the bridge, on the condition that around-the-clock public access be allowed on the new bridge, and adopted staff’s findings in their entirety.

The Club filed suit in the same Orange County Superior Court that had issued the 1928 quiet title judgment.  The Club argued that the public access condition lacked legal justification and asked that it be stricken from the permit.  The trial court denied the petition and ruled that the Commission had acted lawfully.  The Club appealed.  The City of Newport Beach and the Pacific Legal Foundation filed briefs in support of the Club as amici curiae.

The Court of Appeal, in an opinion by Justice Rylaarsdam, made quick work of the Commission’s arguments.  The court focused on the 1928 quiet title judgment’s description of the Club’s easement as being for “private road and bridge purposes”.  It noted that, when a judgment is “clear”, it cannot be read “any way other than as written”.  The court relied on dictionary definitions of “private” as meaning “belonging to an individual, as opposed to the public”.  From these definitions, the court concluded that the judgment “plainly states the easement for the bridge is for the use of plaintiff and not the general public”.  The “existing rights” the Commission relied on just did not exist.

Nor was the court moved by the fact that the channel is “publicly owned”.  The public is not automatically allowed every possible use of all publicly owned property; one must be invited into the Governor’s office, after all.  Given that the owner of the channel, the City, objected to public use of the bridge, the court reasoned that the Club’s “right to exclude third persons takes on even more weight”.

Perhaps the most significant part of the court’s opinion is the remedy.  The usual remedy in cases challenging a decision by an administrative agency is to remand the matter to the agency to give it the opportunity to exercise further “discretion” in the matter.  A common result of that remedy is for the agency to come up with a more legally defensible reason to reach the same condition imposed originally.  From the agency’s perspective, it is thus easy to “lose the battle and still win the war”.

But the California Coastal Act, like some other statutes governing public agencies, contains an oft-overlooked savings clause that requires courts simply to strike unlawful conditions without sending the matter back to the agency for any further action.  Section 30900 of the Public Resources Code, which has never before been cited in an appellate decision, provides in relevant part:

“If any . . . application [of the Coastal Act] to any person or circumstances is held invalid, such invalidity shall not affect other . . . applications . . . which can be given effect without the invalid . . . application.”

The Commission “appli[ed]” the Coastal Act to permit the Club’s replacement of its bridge and to impose the public access condition.  The Club argued that the invalidity of the latter application of the Act should not affect the validity of the former application, and so the condition should be severed and the rest of the otherwise valid permit decision given effect.  It also argued that the Commission had tried and discarded every other conceivable theory to require public access, and had not identified what discretion remained for it to exercise on remand.  The Court of Appeal agreed:  “[the Commission] argues striking the condition would interfere with its discretion but fails to explain why”.  Thus the court ordered that judgment be entered to simply strike the offending public access condition.

The opinion by the Court of Appeal is unpublished, meaning that it generally cannot be cited as authority in future cases.  (See Cal. R. of Court R. 8.1115(a).)  But it can be used against the Commission in future cases.  California allows “offensive non-mutual collateral estoppel”, which prohibits a party that argued and lost an issue in a previous case—even in an unpublished opinion—from relitigating the same issue in a subsequent case.  (See Bernhard v. Bank of America Nat’l Trust & Sav. Asso. (1942) 19 Cal.2d 807, 812 (allowing use of non-mutual offensive collateral estoppel in California); Cal. R. of Court R. 8.1115(b)(1) (allowing citation of unpublished opinions under doctrine of collateral estoppel).)  This doctrine thus may be invoked to estop the Commission from ever again arguing that “private” really means “public”, or that the only remedy for an invalid permit condition is remand rather than a striking of the condition.

The Commission has decided against appealing the decision to the California Supreme Court.

Peter Prows
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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