Calif Supreme Court Rules If Property Owners Build Sea Wall, Permit Restrictions Apply

Crews build new seawall in Ocean Beach, March 16, 2012.

In a legal decision that may affect Ocean Beach and Point Loma land owners who own property right on the cliffs and who have built seawalls, the California Supreme Court has just issued a ruling about the responsibilities of sea bluff property owners and those seawalls.

Closely watched by California environmental groups as well as by advocates of expanded property rights up and down the coast, the California Supreme Court, in a unanimous opinion, ruled against two property owners who own adjoining cliff side lots in Encinitas, and who had sued the California Coastal Commission over the Commission’s authority over seawalls.

Tom Frick and Barbara Lynch were separate homeowners that had a seawall to protect their properties from erosion. When a 2010 storm destroyed their wooden seawall, Frick and Lynch were granted a permit to repair it by the Coastal Commission. But concerned with rising sea levels, the Commission placed a 20-year limit on the seawall, with a condition that the homeowners then reapply for the barrier, and that any changes to, or removal of, the seawall before the end of the two decades would require a new permit.

Commission officials believe the state needs this flexibility in order to limit seawalls that are seen as hastening erosion and creating problems in the future, especially with the documented sea level rise.

Frick and Lynch, however, balked at the 20-year expiration date – but they had a new concrete seawall and  am un-permited stairway built in 2011. And meanwhile they sued the Coastal Commission maintaining it is an unlawful “regulatory taking” taking of their properties, claiming the limits are unconstitutional, as they undercut the value and use of their cliffside homes.

Without addressing the lawfulness of the 20-year time limit, the Supreme Court ruled Frick and Lynch (who passed away in 2016) gave up their right to challenge the time limit by accepting the permit and building their barriers. Justice Carole A. Corrigan wrote for the court:

“In general, permit holders are obliged to accept the burdens of a permit along with its benefits.”

The Court doesn’t want property owners to reap the rewards of land-use permits while rejecting unwanted conditions. Property owners who object to government-mandated restrictions on construction permits must litigate the issues before building their projects, or risk forfeiting their rights to take legal action. The legislative director for the Coastal Commission, Sarah Christie stated:

“Essentially, the court said you can’t have it both ways. You can build your project, or you can sue, but you can’t do both.”

The court’s decision was commended by Rick Frank, director of the UC Davis School of Law’s California Environmental Law & Policy Center – who, although he wished the court had gone further – agreed that Frick and Lynch – the plaintiffs – had forfeited their right to challenge the permit conditions.

The Surfrider Foundation also weighed in, on the side of the justices. Angela Howe, the environmental organization’s legal director, stated:

“The court today made an important ruling that property owners who accept the benefits of a permit forego their right to challenge a permit’s conditions. By doing so, the high court ensured that the California Coastal Commission’s enforcement of coastal protections remain in place.”

Also, Julia Chunn-Heer, policy manager for Surfrider’s San Diego chapter, told KPBS seawalls artificially prevent the movement of the mean high tide line, and it’s important to periodically reassess the impacts of seawalls and the public’s access to the coast.

Predictably, the plaintiffs’ legal counsel, denounced the ruling in hyperbole. John Groen, executive vice president and general counsel of the Pacific Legal Foundation said:

“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.”

“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 Pacific Legal Foundation is a rightward-leaning, private agency that often takes up legal causes and litigates for the expansion of property rights in the face of public needs.

This issue of seawalls and their impacts have been hot issues on the coast. With scientists warning that rising seas could significantly alter the coastline over the century, the absolute rights of coastal property owners to construct whatever they wish as armor against the eroding coastlines and rising sea levels has an end point. Property owners on cliffs – in the face of these elements – get desperate as they figure out how to save their homes while regulators like the Coastal Commission figure out how to deal with those rights and the public’s access to crumbling bluffs.

The San Diego U-T reports:

Recent research on climate change reports that sea level rose more than seven inches over the last century, and could swell another 3 to 10 feet by the end of this century.

According to the Coastal Commission, an estimated 10 percent of the California’s 1,100-mile coastline has seawalls and other barriers – and about one third of that is along Southern California beaches,

Initially, Frick and Lynch won their first legal battle in 2013, when Judge Earl Maas of the San Diego Superior Court agreed with them, and ordered the removal of the Commission conditions on the permit for the seawall. The Commission appealed and in 2014, the 4th District Court of Appeals reversed Judge Maas’ ruling by a 2-1 vote, and concluded that Frick and Lynch by accepting the permit and building, had tacitly consented to the time conditions placed on the permit. The property owners subsequently appealed to the state’s highest court.

News sources:

San Diego Union Tribune

KPBS