California High Court Upholds Conditions on Seawall Permit

Exposed bedrock at the Isla Vista, California, beach during very low tide in February 2017. (Photo by Alex Snyder, U.S. Geological Survey)

SAN FRANCISCO (CN) – Coastal homeowners in California can’t build their seawalls and challenge them too, as the state’s high court ruled Thursday homeowners lost the right to challenge conditions placed on a seawall permit after they’d already built the $1 million project.

The much-anticipated ruling comes at a time when the Coastal Commission, the state agency tasked with approving development projects along the coast, must grapple with sea-level rise and the need to consider the changing coastline before approving construction projects.

The California Supreme Court heard arguments in May on an appeal filed by Encinitas, California, homeowners Barbara Lynch and Thomas Frick, who had applied for a permit from the Coastal Commission to build a new seawall after the structure protecting their coastal properties was damaged during a storm in 2010.

While the commission approved the seawall project, it attached conditions, including that the permit for the structure would expire in 20 years and the homeowners would need to reapply to extend the permit.

The condition gives the commission the option to deny extending the 20-year permit, in which case the homeowners would need to remove the structure.

Lynch and Frick filed a petition in court challenging the 20-year condition as well as one barring them from building a stairway on the cliff. That legal battle through state and appellate courts ended Thursday, when the state’s highest court unanimously found the homeowners “forfeited their right to challenge the permit’s conditions by complying with all pre-issuance requirements, accepting the permit, and building the seawall.”

While the justices found the homeowners did not “intentionally” waive their right to object to the project conditions, they did forfeit their right to fight the conditions in court when they broke ground on the project.

“The crucial point is that they went forward with construction before obtaining a judicial determination on their objectionsBy accepting the benefits of the permit and building the seawall, plaintiffs effectively forfeited the right to maintain their otherwise timely objections,” Justice Carol Corrigan wrote for the court.

Corrigan rejected the plaintiffs’ argument that because the 20-year condition did not affect the design or construction greenlighted by the commission, it could be challenged in court at the same the seawall was being built.

“They essentially ask us to create a new exception to the forfeiture rule, allowing landowners to accept the benefits of a permit under protest if the challenged restrictions can be served from the project’s construction. We decline to do so,” Corrigan wrote.

“An exception allowing applicants to challenge a permit’s restrictions after taking all of its benefits would change the dynamics of permit negotiations and would foster litigation,” she added.

The justices found the homeowners could have applied for an emergency permit to keep their homes from falling into the ocean. Lynch and Frick could have sought a temporary seawall to protect their homes and knew about that option since they’d sought an emergency permit to clean up storm debris from damage caused to their previous seawall, Corrigan said.

Corrigan also questioned whether the 20-year condition was really severable from the rest of the permit, finding if a project is built while a court battle is being waged “it may be too late for agencies to propose alternative mitigation measures.”

Coastal Commission legislative director Sarah Christie told Courthouse News the agency agreed with the Supreme Court’s finding that “you can either build the approved project or you can sue; you can’t have it both ways.”

She added, “It reaffirms the longstanding interpretation of law which is that an individual who benefits from a project approval is also obligated to bear the burdens of a permit.”

Christie said it’s becoming more common for construction projects along the coast to be approved by the commission with a conditional expiration date. She pointed to scientific studies which show sea level is predicted to rise at rates faster than previously anticipated, saying it’s an issue the entire state and all coastal areas are “grappling with.”

“The answer is not to wall off the entire coast to protect private properties. Seawalls have a place in the solution, but they are not in and of themselves the solution,” Christie said.

Pacific Legal Foundation executive vice president John Groen, who represented the homeowners pro bono, said the Supreme Court’s decision was a “disappointing blow to property rights” in a statement on the firm’s website.

“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,” Groen said.

“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 cannot afford to fight,” Groen said.

California Deputy Attorney General Hayley Peterson represented the commission in the litigation.

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