For coastal homeowners, this year’s El Niño means heavy surf and greater-than-average rainfall, which, when combined, can wreak havoc upon beachfront properties. Although many homeowners sit protected behind adequate seawalls, others lie exposed, vulnerable to these winter storms. When the time comes to repair or replace a seawall, coastal property owners need to understand the complex policies and procedures of the Coastal Act—and, if the Coastal Commission gets its way in a pending California Supreme Court case, may also need to give up constitutional rights. (Briscoe Ivester & Bazel LLP is representing, as amici in the case, the organizations Coastal Property Owners of Santa Cruz County, Beach and Bluff Conservancy, Protect the Beach.org, and Seacoast Preservation Association.)

Generally, if coastal homeowners want to protect their properties with seawalls, they must first obtain coastal development permits. Indeed, any person who wants to undertake “development” within the coastal zone—which can extend up to five miles inland from the shore—needs a permit. The agency tasked with managing this coastal zone, the California Coastal Commission (the “Commission”), issues permits itself or delegates permitting power to local agencies that have certified their own local programs.

The Coastal Act requires that seawalls be permitted to serve coastal-dependent uses or protect existing structures when certain circumstances are met. But the Commission does not like seawalls, blaming them for starving beaches of sand and for conflicting with the Commission’s hope for a “planned retreat” from the coast in the face of sea-level rise. So the Commission has taken to imposing all manner of conditions on seawall permits: expensive sand mitigation fees, building setbacks, design requirements, and, more recently, time limits on the seawall itself. If a coastal property owner is able to obtain a seawall permit, but wishes to challenge one of these conditions, what is he or she to do?

Two beachfront homeowners in Encinitas, Barbara Lynch and Thomas Frick, confronted this issue when the Commission conditioned their new seawall permit to last only 20-years (their seawall was engineered to last 75 years). Their previous seawall, which had no agency-imposed time limit, fell to a large winter storm. They objected to the Commission’s new condition, but, considering their homes now lacked the protection of any seawall, went ahead and built the new seawall while at the same time filing a petition in court to strike the offending condition.

The Commission’s position is that homeowners waive their rights to challenge conditions when they accept the permits and build their projects. The Commission maintains this position even though the courts have held (in another case brought by this firm) that they may simply strike invalid permit conditions from an otherwise valid permit. The Superior Court rejected the Commission’s argument; but the Court of Appeal, in a 2-1 decision, reversed, characterizing petitioners’ decision to proceed with the project while also challenging the condition in court as “subterfuge”. (Lynch v. California Coastal Commission (2014) 229 Cal.App.4th 658.)

The California Supreme Court granted review of the case, and it is now fully briefed. If the Commission has its way, the constitutionally protected right to challenge agency action would be reserved for those who could risk delaying their project for years while litigation winds its way through courts. In practice, the Commission’s position would require coastal property owners to choose between constitutional rights: the right to challenge objectionable permit conditions in court, or the rights to defend life and protect property—“inalienable” rights protected by the California Constitution.

Forcing homeowners to choose between constitutional rights raises troubling legal and policy issues. Both California and Federal courts agree that government entitlements—much less constitutional rights—cannot be conditioned upon the waiver of other constitutional rights. Forcing homeowners into this choice may also tempt the Commission to include abusive or extortionate conditions in permits, comfortable in the assumption that most homeowners will not put their families and homes at risk as the price for challenging a seawall permit condition in court.

Now the California Supreme Court gets to decide whether the Commission can force permittees to decide between their constitutional rights.

For more information see amici’s letter to the California Supreme Court in support of review and brief in support of petitioners.

 

Peter Prows and Max Rollens
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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