By Kirk Sanderson
A concrete seawall built by two Encinitas property owners to protect their bluff-top homes after a damaging 2010 storm has an expiration date, after all.
The California Supreme Court in July ruled that when homeowners Barbara Lynch and Tom Frick accepted a permit to build a new seawall, they gave up their right to sue over a 20-year limit imposed by the California Coastal Commission.
The 20-year limit doesn’t mean the wall must be torn down after 20 years, however. It simply means the homeowners have to apply for a permit all over again, and then abide by the Coastal Commission’s decision as to whether the seawall may remain in place or must come down. This condition, homeowners say, reduces the value of their homes.
Legal experts say the ruling could impact landowners throughout the state.
The case dates back to 2010, when Lynch and Frick – whose properties are adjacent to each other at Grandview and Neptune streets – went to the Coastal Commission for permission to build a new seawall to replace an old wooden one destroyed by storms.
The commission gave them a permit, but put a 20-year limit on it. The homeowners accepted the permit and built the wall in 2011, but challenged the time limit in court, arguing that it constitutes a “regulatory taking” of their properties.
San Diego Superior Court Judge Earl Maas voted in favor of Lynch and Frick in 2013 and told the Coastal Commission to remove the restriction. But the Commission appealed the ruling and in 2014 the 4th District Court of Appeals reversed Maas’ decision, maintaining that the homeowners had tacitly consented to the restriction by accepting the permit.
The homeowners appealed, only to now have the state Supreme Court affirm the appeals court ruling.
According to the Supreme Court, “The crucial point is that they went forward with construction before obtaining a judicial determination on their objections. By accepting the benefits of the permit and building the seawall, plaintiffs effectively forfeited the right to maintain their otherwise timely objections.”
The decision by the Supreme Court made headlines throughout the state and even made the national press. According to a story by the Associated Press, “California property owners give up their right to pursue lawsuits challenging restrictions in building permits once they construct the project, the state’s high court said … in a victory for California’s Coastal Commission, cities and counties. The court’s unanimous ruling came in a dispute between coastal homeowners in San Diego County and the Coastal Commission over a 20-year permit for a seawall aimed at guarding against cliff erosion. But lawyers involved in the case say it has implications for landowners throughout the state who may be considering projects such as expanding their homes or putting up a new apartment tower.”
“The scope of the court’s ruling would not be limited to seawalls,” Janis Herbstman, an attorney who filed a brief in the case on behalf of the League of California Cities and the California State Association of Counties, told the Associated Press. “It would include local land use permits as well.”