SAN FRANCISCO (CN) – Justices with California’s Supreme Court recently heard arguments in a case that could set precedent for homeowners along the state’s pricey – and crumbling – coast about what measures they can take to protect their properties from rising sea levels.
On Thursday, the state’s highest court heard from attorneys for two coastal homeowners from Encinitas on one side and the California Coastal Commission on the other about the state agency’s decision to impose a 20-year expiration date on a $1-million seawall project it approved.
Barbara Lynch and Thomas Frick received a permit from the Coastal Commission in 2011 to replace an aging seawall with a new 100-foot structure to protect their homes from the Pacific Ocean. But that permit will expire in 20 years, and the homeowners will again have to seek the state agency’s approval to keep the seawall intact.
At the heart of the hearing was whether the homeowners waived their rights for judicial review of the permit when they constructed the wall even though they had already challenged the 20-year condition in court.
“The Coastal Commission approved this seawall, but with a 20-year condition … they went ahead and built this great, big concrete seawall and that changes the conditions,” Supreme Court Justice Carol Corrigan told the homeowners’ Pacific Legal Foundation attorney, John Groen.
Groen responded that he believed the “physical” conditions set by the commission for construction of the wall are separate from the “legal” condition of the 20-year permit. He said the commission can deny issuing another permit to his clients 20 years down the road, forcing them to take down the $1-million seawall that is expected to last about 75 years.
Groen suggested the expiration date was imposed to account for “fluctuating changes” in state policy surrounding homes and construction along the coast, allowing the agency to renege on its prior project approval.
Other state agencies and environmental protection and homeowners’ rights groups are watching the case closely, with organizations like the Surfrider Foundation, California Association of Realtors, Seacoast Preservation Association and others filing briefs with the court in support of or against the homeowners’ challenge.
The issue of coastal properties and the seawalls that protect them have become a major talking point as scientists learn more about the expected consequences of rising sea levels – the properties and the structures that protect them lead to the erosion of bluffs and beaches that already stand to be potentially obliterated by rising oceans.
When asked why his clients wouldn’t just set aside the permit with the 20-year condition and instead request an emergency permit from the Coastal Commission to immediately construct the seawall, Groen said it wouldn’t make sense to go through a new permitting process when the homeowners had already gotten approval to construct the wall with construction conditions that complied with the Coastal Act.
Groen added that the newly constructed wall actually expands public beach access – a concern cited by the Coastal Commission’s attorney in arguing for the time limit – and that it is set farther back on private property than the crumbling seawall it replaced.
Calling the 20-year condition “most extreme,” Groen pointed out that the agency issued his clients the permit even though they’d already filed a challenge in court.
Deputy Attorney General Hayley Peterson, representing the Coastal Commission, said the agency had no basis for withholding the permit even though the homeowners had already challenged the 20-year condition in court.
She disputed the newly built wall would last 75 years. Based on prior seawall permits issued by the commission, most homeowners typically have to make significant repairs or even replace their structures completely after 20 years, she said.
Justice Mariano-Florentino Cuellar suggested it could be “quite a challenge” for homeowners to wait for a dispute to be resolved through litigation before installing a protective barrier.
Peterson told the justice the homeowners could have gotten an emergency permit and noted that three such permits had been issued by the commission within a mile of the homeowners’ properties in the case.
The attorney also challenged the homeowners’ contention the time-limited permit would decrease their property values.
“It’s not the 20-year permit duration that should affect their property values,” she said. “It’s that they built their homes on an 80-to-90-foot erodible bluff.”
She also dismissed the argument that the commission wouldn’t approve another permit in 20 years, noting that the agency does not have a history of denying renewed permits.
“The possibility the commission may deny this permit in 20 years does not constitute a taking today,” Peterson said.
A Coastal Commission spokeswoman said the agency had no comment.
The California Supreme Court will issue a written order on the matter within 90 days.