Homeowners file re-hearing petition for seawall restrictions

Encinitas neighbors are petitioning the California Supreme Court for a re-hearing on restrictions placed on the seawall they built to prevent their Neptune Avenue homes from sliding into the ocean.

The state high court on July 6 ruled against Barbara Lynch and Thomas Frick, owners of adjacent oceanfront properties on the top of a steep bluff in Encinitas.

Then, on July 21, the homeowners filed a petition for a rehearing with two arguments for their case including “the opinion did not address reconstruction of the destroyed stairway after the seawall conditions had been invalidated” and “this court’s opinion relied on a concept of equitable forfeiture, and the parties should have been given an opportunity to file supplemental briefing on this issue.”

While building the wall, the owners went to court to challenge two conditions of a permit from the California Coastal Commission.

One denied them the right to replace stairs to the beach that had been destroyed in a storm and the other required the owners to obtain a new permit for the seawall after 20 years.

Coastal Commission staff recommended the new seawall be approved. It was to be located eight feet inland from its previous location and would leave more room on the beach for recreation.

But the staff urged the commission to reject the stairway under a policy that discourages private access stairs on the bluff.

The commission approved the project without the stairway under a 20-year permit. It required the owners to apply for a new permit to change or remove the seawall or extend its authorization before the expiration date.

The owners built the seawall but went to court July 6 to challenge the denial of the stairway and the 20-year expiration date.

They contended they could not have waited to build until the litigation concluded because their homes were in jeopardy.

The petitioners in the recent rehearing filing argued the court cannot hold the stairway as equitable forfeiture because “there are important factual and legal distinctions between the construction of the seawall and the stairway,” according to the court document, filed by The Cardiff-by-the-Sea-based Jon Corn Law Firm and Sacramento-based Pacific Legal Foundation, on behalf of Lynch and Frick.

“The owners sought and obtained a coastal development permit for the seawall,” the petition reads. “However, the owners did not accept a permit for the stairway, instead alleging that no permit was required in trial court.”

Further, the homeowners argued that because neither party proposed nor briefed the issue of forfeiture, the owners are entitled to a rehearing.

“The court neglected to address the distinct factual and legal issues surrounding the reconstruction of the destroyed stairway,” according to the petition. “In addition to the inequity to the owners of leaving important merits issues unresolved, the scope of this court’s opinion — on an issue raised by neither party — will have unintended and harmful consequences on permit applicants across the state.”

San Diego Union-Tribune reporter Maura Dolan contributed to this report.