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California

California Supreme Court deliberates on seawall case

ENCINITAS, CA - APRIL 27, 2017 - Tom Frick stands on a staircase that runs from his oceanfront house
Tom Frick stands on a staircase from his oceanfront house to the beach in Encinitas, where a dispute over a new seawall is now being decided by the state Supreme Court.
(San Diego Union-Tribune)

The California Supreme Court grilled attorneys for the California Coastal Commission and two Encinitas homeowners Thursday in a hearing over a seawall dispute that could affect oceanfront homes all along the coast.

Neighbors Tom Frick and Barbara Lynch are challenging whether the commission has the authority to impose a 20-year expiration date on the permit for a seawall the pair built after a decades-old structure collapsed during a 2010 storm.

That question could be preempted, however, by the commission’s contention that the property owners waived their right to sue over the matter when they built the new wall.

Many of the justices’ rapid-fire questions Thursday focused on the latter issue. If the court finds that the homeowners waived their rights, it could choose not to rule on whether the 20-year time limit violates the state Constitution — the question central to the commission’s authority over some of the most prized properties in the state.

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In their lawsuit, the Frick and Lynch families call the time limit an unconstitutional “regulatory taking” of private property, which devalued their homes.

In some of their questions, the justices appeared to push back against that argument, noting that, for now, the permit was secure and so were the homes.

Deputy Atty. Gen. Hayley Peterson, representing the commission, said that after the permit expires, there’s no reason to assume the agency would deny a new one.

“And if they do, that’s the time to litigate a taking,” said Justice Kathryn M. Werdegar. “The possibility that the commission may deny this in 20 years, does not constitute a taking today.”

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Nonetheless, she acknowledged that government “taking” also can occur because of “onerous conditions that diminish the value of homes.”

Jon Corn, an Encinitas land use attorney who represents the families, said uncertainty over the permit’s renewal casts a cloud over the properties that damages their worth and marketability.

That argument prevailed in San Diego Superior Court, but the commission challenged the decision.

The 4th District Court of Appeals concluded that the commission could impose the time limit, and the homeowners had waived their right to dispute it when they accepted the permit. The homeowners appealed to the state Supreme Court.

The Coastal Commission declined to comment on Thursday’s hearing, but Rick Frank, director of the California Environmental Law and Policy Center at the UC Davis School of Law, said he thought most of the justices were persuaded by the state’s argument.

“They seemed to be skeptical of the homeowners’ claims that they should be entitled to build the seawall, while simultaneously challenging the constitutionality of that provision,” he said.

The case is being closely followed by environmental groups, property rights advocates and coastal homeowners across the state. Roughly a dozen groups have weighed in with friend-of-the-court briefs, including the League of California Cities and the Surfrider Foundation, in support of the Coastal Commission, and the National Assn. of Realtors and California Building Industry Assn., in support of the plaintiffs.

In Encinitas, the median sale price of a single-family home was $918,500 last year, and beachfront homes are among the most coveted in the city. Many of those are perched on sandy cliffs and rely on seawalls for protection from erosion.

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According to the commission, however, such structures actually accelerate erosion of the state’s public beaches. With sea level projected to rise by three feet or more by the end of the century, the commission said it must keep close tabs on how seawalls affect the sand below.

That debate could remain unresolved if the court decides that the homeowners in the current case forfeited their right to challenge the restriction when they built the wall under the permit’s conditions.

John Groen, executive vice president and general counsel for the Pacific Legal Foundation, which advocates for property rights and is representing the families pro bono, argued that the families accepted the condition under duress.

With their homes threatened by the crumbling bluff, they could not wait to litigate the complaint before starting construction. Moreover, he said, they filed the lawsuit before receiving the final permit, suggesting that the commission knew of their objections when it issued it.

At times the justices seemed to sympathize with the homeowners’ quandary, acknowledging the conflict between their need to act quickly to repair the seawall and their desire to preserve their legal options.

“It could be quite a challenge for the homeowner to wait until all of this” is resolved, Justice Mariano-Florentino Cuéllar said.

The Supreme Court will decide the matter within 90 days.

deborah.brennan@sduniontribune.com

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Brennan writes for the San Diego Union-Tribune


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