A San Diego appeals court Monday is set to hear a dispute over a sea wall built in Encinitas — a case that could set a precedent for how the California Coastal Commission deals with similar walls along the state’s coastline.
At issue is the commission’s demand that, in order to get its permission to build a wall to protect their bluff-top homes, two families had to agree to a 20-year sunset clause. In 20 years, the property owners would have to reapply to the commission and, if rejected, take down the wall.
The owners built the wall at the base of the bluff, 100 feet wide and 29 feet tall, but sued the commission to overturn the 20-year condition.
The wall replaced one destroyed by a “catastrophic bluff collapse” during a 2010 storm. A stairway to the beach damaged in the storm was repaired.
San Diego Superior Court Judge Earl Maas in March 2013 agreed with the property owners, the Frick and Lynch families who own adjoining properties along Neptune Avenue in the suburb 20 miles north of San Diego.
“The 20-year limit is simply a power grab designed to obtain further concessions in 20 years or force the removal of sea walls,” Maas ruled.
The commission appealed to the 4th District Court of Appeals to overturn the ruling.
A Superior Court ruling is not a precedent in other cases, but an appeals court decision, if published, could set a rule authorizing the 20-year clause on other sea wall applications.
Sea walls are favored by property owners trying to withstand the inexorable effects of wind and tides. But many environmental activists say they decrease the size of the public beach by disrupting the natural erosion of bluffs onto the beach and the tidal action that brings sand ashore.
Among other arguments, the property owners say that the 20-year clause will severely undercut the resale value of their property. They say the commission’s real intent is to force a “retreat” away from the coast.
“The Coastal Commission has picked up where the violent storm of 2010 left off, by mounting a frontal assault on these homeowners,” said Paul J. Beard II, attorney for the Pacific Legal Foundation which is representing the Frick and Lynch families in fighting the Coastal Commission appeal.
In its appeal, signed by Atty. Gen. Kamala Harris, the commission argues that it needs to be able to reevaluate the wall in 20 years to determine its physical condition and also to assess the impact of a rising sea level on the beach and bluffs.
“This uncertainty (about a rising sea level) makes long-term projections about the impacts of structures extraordinarily difficult to make,” according to the commission’s appeal.
There is also a secondary argument that nothing in state law allows someone to accept a commission permit, build a wall and then challenge one of the conditions of the permit.
But for the Neptune Avenue families, the fight is “like David vs. Goliath.” The lawsuit that led to the Maas ruling cost upward of $200,000. The Pacific Legal Foundation is taking the appellate case pro bono.
The Coastal Commission is “a bureaucratic agency that started for good but has gotten way too much power,” Tom Frick said.