California Supreme Court Rules in favor of California Coastal Commission’s 20 Year Permit in Seawall Debate
Tue Nov 14th, On Environmental Law, by Bick Law LLP
Sea level rise is quickly becoming one of the most pressing climate issues facing coastal cities around the world. According to the National Oceanic and Atmospheric Administration (NOAA), global sea levels will rise by as much as 6.6 feet (2.0 meters) by the year 2100. Rising sea levels and shrinking coastlines present a huge problem to the United States. According to a report by NOAA and the U.S. Census Bureau, 40% of Americans lived in counties directly on the coast in 2010. This percentage is even greater in California, where over 68% of its residents reside in counties directly on the shoreline.
With so much of the California coastline threatened by rising sea levels, many homeowners are looking to protect their properties against the effects of sea level rise, such as erosion and high surf, through the construction of seawalls. This, however, creates a different problem. While the seawalls may help protect coastal property, officials from the Surfrider Foundation and the California Coastal Commission allege that seawalls hasten erosion and worsen beach stability in the long run.
The California Supreme Court released its decision regarding a case between two Encinitas homeowners and the California Coastal Commission. The case centers on a 100-foot erosion control structure and a 100-foot mid-bluff seawall protecting the properties of plaintiffs Barbara Lynch and Thomas Frick from the effects of coastal erosion. In 2010 a series of large storms caused the destruction of the lower portion of the homeowners’ private stairway access as well as the seawall protecting their beachfront properties. Shortly after, the plaintiffs filed for and were granted permits to repair the seawall by the Coastal Commission. Within the terms of that permit, however, was the condition that the permit for the seawall would expire after 20 years, whereupon the plaintiffs would be forced to reapply for a permit from the California Coastal Commission.
Following the construction and repair of the new seawall in 2011, plaintiffs filed a petition for a writ of mandate challenging the condition that the permit would expire after 20 years, claiming that this would constitute a regulatory taking. The California Supreme Court passed down a decision on this case in early July. While both the trial and appellate courts focused on the constitutionality of the conditions embedded in the permit, such as the 20 year limit, the California Supreme Court instead focused on the question of whether or not the plaintiffs forfeited their right to sue when they accepted the terms of the permit and went ahead with the repair and construction of the seawall. The Supreme Court found that this was the case, and that “in the land use context, a landowner may not challenge a permit condition if he has acquiesced to it either by specific agreement, or by failure to challenge the condition while accepting the benefits afforded by the permit.”
Many argue, however, that the Supreme Court did not go far enough in its analysis of the case at hand. While its assertion that the plaintiffs forfeited the rights to sue by proceeding with construction of the seawall solves the issue at hand, it leaves open the question of the constitutionality of the restrictions embedded in the permit. By declining to comment on these restrictions, the Supreme Court leaves the issue open for debate in future cases.
As sea levels continue to rise, disputes such as this will become increasingly common and will lay the groundwork for the legal limitations in mitigating climate change.
The California Environmental Lawyers at Bick Law LLP will continue to follow the rules and regulations surrounding climate change mitigation and adaptation.
Case: Barbara Lynch et al v. California Coastal Commission, San Diego County Super. Ct. No. 37-2011-00058666-CU-WM-NC