On September 19, the California Court of Appeal upheld California Coastal Commission efforts to ensure that new coastal development is safe from erosion and other coastal hazards and does not compromise public beach access.
In Lindstrom v. California Coastal Commission, property owners sought a coastal development permit to construct a 3500 sq. ft. blufftop home in Encinitas. The city of Encinitas approved the permit with conditions, including the requirement that the home be built 40 feet from the bluff edge. The City’s decision was appealed to the California Coastal Commission, which attached additional conditions to the Lindstrom’s permit to ensure that the development complied with the Coastal Act, as implemented by the City through its Local Coastal Program. These conditions included a larger setback, requiring the house be built 60 to 62 feet back from the bluff edge, a waiver prohibiting any future seawalls or other protective armoring of the bluff or beach, and managed retreat conditions.
Stanford Environmental Law Clinic students Tom Miller (JD/MS ’20) and Annelise Corriveau (JD ’20) drafted an amicus brief on behalf of Surfrider Foundation to defend the Commission’s conditions in the California Court of Appeal. The brief emphasized how coastal armoring such as bluff retention devices and seawalls can destroy beaches. Surfrider also advocated for adequate setbacks for coastal development to avoid coastal armoring and defended the Coastal Commission’s ability to use waivers to prohibit future coastal armoring.
The California Court of Appeal agreed, upholding almost every Commission condition. In a detailed discussion grappling with the difficulties of predicting the extent of coastal erosion, the court upheld an additive setback calculation methodology in which both the long-term erosion rate and the potential for bluff failure are taken into account. This approach is aimed at ensuring that the house is safe from bluff failure even in 75 years, at the end of its presumed economic life.
The Court also upheld a permanent waiver on any kind of coastal armoring, noting that the waiver merely implements the prohibition on armoring for new development in the LCP and the Coastal Act. Effectively, the waiver precludes the Lindstroms from arguing in 20 years that their home is no longer new and should be able to get a seawall. The Court also rejected the Lindstrom’s argument that the waiver is an unconstitutional taking under the takings clause of the Fifth Amendment of the United States Constitution. The Court specifically reaffirmed that the unconstitutional conditions doctrine does not apply where the government simply restricts the use of property (in this case, in the form of a waiver prohibiting future armoring) without demanding fees or dedication of property as a condition of approval.
Finally, the decision contained important lessons for drafting managed retreat conditions. The Court upheld the requirement that the Lindstroms follow the recommendations in a geotechnical report if the bluff recedes to within 10 feet of the principal residence, including recommendations to remove portions of the structure if deemed unsafe. And while another condition requiring structure removal was held to be overly broad as currently drafted, the Court left the door open for the Commission to revise the structure removal condition to remedy the defect.
Importance of the decision
This decision reinforces the Coastal Commission’s ability to ensure that new oceanfront development is prudent, which is critical to protecting not only the home itself, but also to protecting public safety. In the weeks leading up to this appeal, several sudden bluff collapses in Encinitas made headlines, including a 50 x 20 foot collapse of a section of the Encinitas coastline and a 30 x 25 foot collapse that killed three people and injured two others. Building right up to the bluff edge – and building on top of the bluff in general – exacerbates erosion and cliff instability by adding weight to blufftops and increasing water drainage from irrigation. By reaffirming the Commission’s ability to impose special conditions like those in Lindstrom to try to avoid those impacts and avoid armoring, the court is helping to protect homeowners, the beach-going public, and the very beaches themselves.