LYNCH v. CALIFORNIA COASTAL COMMISSIONAmicus Curiae Brief of American Planning Association and American Planning Association California ChapterCal.August 11, 2015SUPREME COURT COPY Case No. 8221980 IN THE SUPREME COURT OF CALIFORNIA BARBARA LYNCHand THOMASFRICK, Plaintiffs and Respondents, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant. After a Decision by the Court OfAppeal Fourth Appellate District, Division One Case No. D064120 Appeal from the San Diego County Superior Court, Case No. 37-201 1-00058666-CU-WM-NC The Honorable Earl MaasIII, Judge APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEFIN SUPPORT OF DEFENDANT AND APPELLANT CALIFORNIA COASTAL COMMISSION AND [PROPOSED] BRIEF OF AMICI CURIAE AMERICAN PLANNING ASSOCIATION AND AMERICAN PLANNING ASSOCIATION CALIFORNIA CHAPTER *Fran M. Layton (SBN 111788) SUPREME COURT Layton@smwlaw.com Catherine Malina (SBN 299241) F | L E D Malina@smwlaw.com Shute, Mihaly & Weinberger LLP AUG 11 201 396 HayesStreet San Francisco, California 94102 Frank A. McGuire Clerk Telephone: (415) 552-7272 Deputy Fax: (415) 552-5816 Attorneysfor [Proposed] Amici Curiae American Planning Association andAmerican Planning Association California Chapter Pursuant to Rule 8.520(f) of the California Rules of Court, the American Planning Association and the American Planning Association California Chapter respectfully request leaveto file the accompanying amici curiae brief in support of Defendant and Appellant California Coastal Commission (“Commission”). IDENTITY AND INTEREST OFAMICI CURIAE The American Planning Association (“APA”) is a nonprofit public interest and research organization founded in 1909 to advancetheart and scienceofland use, economic, and social planning at the local, regional, state, and national levels. The APA represents approximately 40,000 professional planners, planning commissioners, and citizens involved with urban andrural planning issues. The APA regularly files amicus briefs in federal and state appellate courts in cases of importance to the planning . profession and the publicinterest. | | The American Planning Association California Chapter (“APA California”), the largest of the 47 chapters of the American Planning Association, is an organization of _ more than 5,000 professional planners, planning commissioners, and elected officials in California whose missionis to foster better planning by providing vision.and leadership in addressing important planning issues. To that end, the Chapter’s Amicus Curiae Committee, made up of experienced planners andland use attorneys, monitors litigation of concern to California planners and participates in cases of statewide or nationwide significance that raise issues affecting land use planning in California. Amici are familiar with the issues before the Court and havea critical interest in the outcomeofthis case. Amicibelievethat additional briefing is necessary to 1 demonstrate that Lynch and Frick (hereafter “Plaintiffs”) have waivedtheirright to challenge the validity of the special conditions imposed on their coastal development permit. Specifically, this amici curiae brief emphasizesthe importanceoffinality and certainty in the land use decision process and highlights the policy reasons that mitigate against Plaintiffs’ attempt to have this Court adopt a new “under protest” exception to the general waiverrule. Amici’s brief demonstrates the importance of the Commission’s inherentauthority, and indeed the authority ofpublic agencies in general, to impose conditionsthat enable the agency to address changing circumstances. At issue hereis the critical need to ensure that governmentcan respond effectively to the uncertainty associated with the effects of climate changeandsealevelrise. Additional briefing is also necessary to more fully address and dispose of Plaintiffs’ takings argument. Finally, additional briefing will demonstrate that, contrary to Plaintiffs’ assertions, their stairway reconstructionis barred underthe City of Encinitas’s Local Coastal Program and Zoning Code. Pursuant to California Rule of Court 8.520(f)(4), Amici certify that no party or counselfor a party in the pending case authored the proposed Amici Curiaebriefin whole or in part or made a monetary contribution intended to fundthe preparation or | submission ofthe brief. DATED: August 7, 2015 SHUTE, MIHALY & WEINBERGER LLP FRAN M. LAYTON CATHERINE MAL Attorneys for [Proposed] Amicus Curiae American Planning Association California Chapter 697404.13 TABLE OF CONTENTS SUMMARYOF ARGUMENT...........c:c00000seacenescorserseneassecssnereonseconesensorscveranadensnesscsoseosenecss 1 I. II. Ii. The Court ofAppeal Properly Concludedthat Plaintiffs Waived Their Right to Challenge the Conditions oftheir Coastal Development Permit. 0.0...eeeceesssesesssssssessesesessesecssesssssssssscsessvsseesenecateaees 3 A. Plaintiffs Specifically Agreed to the Conditions and Accepted the Permit’s Benefits By Constructing the Project. .....0.00.00ccccsessees 3 B. Creating an “Under Protest” Exception to the General Waiver Rule Would Impair the Important Goals of Finality and _ Certainty in Governmental Decisionmaking............0.:.eceeeeeeee 8 C. Plaintiffs Cannot Avoid the Effect of Their Waiver By Invoking the Deed Restriction’s Severability Clause............0.....00.. 1] - The Court of Appeal Properly Upheld the Commission’s Decision to ApprovePlaintiffs’ Permit Subject to a Twenty-Year Authorization and Renewal Period. 2.0.0.0... cesscsssssesssssseseseesesesseceeesecscesssssstsssnsesseneceseseuenace 13 A. Limiting the Duration ofthe Permit is Consistent with the Overall Purpose of the Coastal Act and Supported by Substantial Evidence... cecescsessssesseseeseceeeessssssescevscsscsssssceeceseeacs 13 B. The Commission Has Authority to Impose Durational Permit . Conditions..0.....c ce eeeeeeeeceseeesessssesesesessecseseseesecssescessecsvssseessseseesersensens 18 C. The Durational Authorization Condition Is an Appropriate Responseto the Uncertainty Associated with Sea Level Rise......... 21 1. Public Agencies Must Exercise Their Broad Authority to Address the Effects of Climate Change........0..0.0.0cece 21 2. The Uncertainty Associated With Sea Level Rise Demands a Dynamic, Flexible Response By Agency Decisionmakers...........cccccccssseescsseessessseescestssescscsscesecsscseceaceess 25 3. Coastal States Are Adopting Flexible Shoreline Protection Strategies to Address Sea LevelRise.................... 27 The Durational Permit Condition Does Not Violate the Takings CAUSE...eeeccscceseseseeeeeaceresesecseesscecesesesesseesseaseaseeecssessssscscssstsvscesseasenesresass 29 A. Plaintiffs’ Takings Claim is Not Ripe...........c:ccccccssssssessseseeeeseeseees 29 i B. The Unconstitutional Conditions Doctrine Does Not Apply to the Durational Permit Condition..............:ccsccsscsssssscesecessesseeessseeseeees31 IV. Encinitas’ Local Coastal Program and Zoning Code Bar Reconstruction of Plaintiffs’ Stairway............:ccccssscssseesseseesesessessseseeeesees 34 CONCLUSION.....ccccccccsceccesesccssessescscescsesesesecsscsscscescassessseseesescseeseseneessesesstsssessatavstacsesesesass 37 li TABLE OF AUTHORITIES Page(s) Federal Cases Carson HarborVillage Ltd. v. City ofCarson . (9th Cir. 1994) 37 F.3d 4680esessestecntcesseenneecneesnecneessecuessnessueesnessassacesssssseceesessees29 Dolanv. City ofTigard (1994) 512 U.S. 374 oceansbeceestcescerssecscsscseceasececesaeensetersesetsntaesseseseseeneesesseetesasens 32 Kinzli v. City ofSanta Cruz (9th Cir. 1987) 818 F.2d 1449, opn. mod., 830 F.2d 968, cert. den. (1988) 484 U.S. 1043 oocescesesseseeeneeeeees sessestenseneseesesesessoneeseenenees 29, 30 Koontz v. St. John’s River Water ManagementDistrict © (2013) 133, S.Ct. 2586 oeeeescssecscesscessessesscssssessesseseeeeseseeessssesssestessesseesssensesenes 32-33 Lincoln General Ins. Co. v. Access Claims Administrators, Inc. (E.D.Cal. 2009) 596 F.Supp.2d 1351.........sesseceeenennsseceenustenenuneseecannnatess seeeeseteescenenseees 6, 7 Monterey v. Del Monte Dunes at Monterey, Ltd. (1999) 526 U.S. 687 wove eeeseesecsesesseseeessesccssessssessessesneeseseasesesessaecseesecetsessecseecsseserscas 33 Nollan v. California Coastal Commission - (1987) 483 U.S. 825 oooeeesccsnesseeesesseeesessesessesesscessessecsecsessuesessssaueseeseeeesesssesesoasas 32 Southern Pacific Transportation Co. v. City ofLos Angeles | (9th Cir. 1990) 922 F.2d 498,cert. den. (1991), 502 U.S. 943 wo.seseteeseeeeceeeseens 31 Williamson County Regional Planning Commission v. Hamilton Bank (1985) 473 US. 172 eeeeeesecseeseceteesneesseeessseecessssessseeessesesesseesessessessesasesseesseenesse 28, 29 WMX Technologies, Inc. v. Miller (9th Cir, 1997) 104 F.3d 1133 occecccscescsscsssseeseeseesscesscsscssecsecsesseseecsessesssesssaseesaeees 29 State Cases Alliance ofSmall Emitters v. South Coast Air Quality ManagementDist. (1997) 60 Cal.App-4th 55oecccccssecssessesessetessecseessecsecstecseesecessesseeeesseesseeseces 21, 25 - Barrie v. California Coastal Commission . (1987) 196 Cal.App.3d 8 affirmed 00.0.0... ccccccccccssesessseseceseessecsecseeescsseseeseeessesensecees 19, 20 ill Bolsa Chica Land Trust v. Superior Court (1999) 71 CalApp.4th 493ooeeessesssssescscesseesesessecsessessesesesaeseseesecsevsssesesensavensees 14 Brant v. California Dairies, Ine. (1935) 4 Cal.2d 128weeeeeeeeeee eceseseeseseseseceseussesscueessavsceacsessseseesessgessessesasesssessenssses 6 California Building Industry Association v. City ofSan Jose (2015) 61 Cal.4th 435..........sesescesseesacocsesesscucaseseeescesseassessesessenssaeeasensesseenseessesseacuees 32, 33 © Ching v. San Francisco Board ofPermit Appeals . (1998) 60 Cal.App.4th 888 oo.eccssssssessssssseecseessssensessesscessessessscssssssssceseessasensers 9 City ofBell v. Superior Court (2013) 220 CalApp.4th 236 0...eecccccscsccissssesseescsssesessessacenscsessesecssessessesesacesasssecsseseeaes 11 City ofLos Angeles v. Wolfe (1971) 6 Cal.3d 326...hesseesssescaeecseeetseescenseesueneesceseesseeseneseseseseesenseetscessesenssovees 35 City ofSan Diego v. California Coastal Commission (1981) 119 CalApp.3d 228 occcececsessesseesnesssnesensseenssceeseessseeseeseness seseeseaetsseeeenee 14,15 Consolidated Rock Products Co. v. City ofLos Angeles (1962) 57 Cal.2d S15eeeeceeeesseseeeseseseesesseseeeenensneeeesancresceessennsonscsossenscessersaacebeatsesees 36 Costa Serena Owners Coalition v. Costa Serena Architectural Committee (2009) 175 Cal.App.4th LETS veesssssesessssnestecenonssatoorneconentensneenesssensees deseeccceeeseasceeceens 5,12 County ofImperial v. McDougal (1977) 19 Cal.3d 505...........eeeeassesecaseossesevevsesseseseesensesneessaeecsssesessecasessesesasseaseceseesnes 4,5 Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th1346 00... cccccccsesssesssesseessessecsecseecsssscsneesecseseesseucsaseeseseesees 19 - Friends ofShingle Springs Interchange, Inc. v. County ofEl Dorado (2011) 200 Cal.App.4th 1470 oo. cecccssessesssessesseessscesesseessecsssesssssesecsscsssssssesensecaseners 11 Hensler v. City ofGlendale (1994) 8 Cab.4th Doneseesesseceseersesssesessesseseseseesessesesesesesssseseseesseseseussneesess 8,9 Kirkorowiczv. California Coastal Commission (2000) 83 Cal.App.4th 980.0... ceeesecssssessssscsceseessesseesecsesscesesesseessesesseesseessssesseseceetees 18 La Costa Beach Homeowners’ Association v. California Coastal Commission (2002) 101 CalApp.4th 804occccccccseseessessessesseessesessseecseesescssseesssssssesascnesersanes 19 iV McLain Western #1 v. County ofSan Diego (1983) 146 CalApp.3d 772 0.eeescceccsssssessesssssssessessesesscsesssscsecssssssssscescsssceeaseceaes sess Ty 9 Meridian Ocean Sys., Inc. v. California State Lands Commission | (1990) 222 Cal.App.3d 153 wn.esssssscsseseseceseosesessscessssssesesesssteseseeeseussscssscscseacsecseees28 Miller v. Board ofPublic Works (1925) 195 Cal. 477 co. eecscescsscessesseessenseseeeesecsessasessescesecsesseesceeaceseeeeessnesssensenesceasenes 21 Ocean Harbor House Homeowners Association v. California Coastal Commission (2008) 163 Cal.App.4th 215 oo... csscsssssscsccscescssesssscsscssssssssssssssssecassesseenesesessassesssseces 19 Ojavan Investors, Inc. v. California Coastal Commission (1994) 26 Cal.App.4th 516...cecsecsssescescssesesseseesessesessssesscsssecscssessesazsesecsessseeescaens 9 Palmer/Sixth Street Properties, L.P. v. City ofLos Angeles (2009) 175 Cal.App.4th 1396.0... eccssssscsssssessssessescsressesssscssssssscsvsccessasscceseatscsecscensasees 12 Pfeiffer v. City ofLa Mesa | (1977) 69 Cal.App.3d 74 oo... eescsscecesessssessessesssssessestessessessssessesscsssssesacaesasesescsarsacans4,10 Regional Steel Corp. v. Liberty Surplus Ins. Corp. (2014) 226 Cal.App.4th 1377 o....eecesessssssessesssscsceseescseessesesssscsesscssssssavsesesesseceseatereaes 5, 6 Rehfeld v. City & County ofSan Francisco (1933) 218 Cal. 83cceeessssessseesseensscesesesesesersssesssssssusesssescesesesessstsesesesssssaseesseases 35 Richeson v. Helal (2007) 158 Cal.App.4th 208 oeereeesseessseecessseesnessnessneceseesessntesssnessneesseesanessarsenteessneeeLy 26 Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87 ......ccccccccssscccssssssssccssccssccssessasssessececesequsesssecsusessessesecetaseeses 6 San Diego County v. McClurken (1951) 37 Cal.2d 683 0.eeccsecsessesessssssssesesecsecsessssesscsesssssssscassccssvavssssseassesseeseataceucaeees 35 Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218iceccscsccssccsesssescseccsecceesasesssssseesssasecsuececesessesseeess 10 Sonoma County Water Coalition v. Sonoma County Water Agency . (2010) 189 CalApp.4th 33 oceccececcssssssssessescstensscsesvenesessessaseseassnenecesssesestsassnesesessessees 22 Sports Arenas Properties, Inc. v. City ofSan Diego (1985) 40 Cal.3d 808 ooo. eceecsessessssssssesesscsssecsessessesecsecscsscssssseusacsssacsaceesaceasarseaces 7, 14 Sterling Park, L.P. v. City ofPalo Alto (2013) 57 Cal.4th 1193oeeesessescsscssscessesessessesessesesssesssssseeseesessncessanvens 7, 10, 11, 33 Sterling v. Gregory , (1906) 149 Cal. V17eeeecesssessssssesesesesesessscsscsesesesesesesesesssesessssessssssssossesssecesenseacnenes 12 Travis v. County ofSanta Cruz (2004) 33 CalAth 757 ......ccccccccssssssssssccssssscsecssesecsecsecessssessssesseteeseesescecacseessssessseeesseeeess 9 Urban Habitat Program v. City ofPleasanton . (2008) 164 CalApp.4th 1561...ccceccsecseeseecsseseeseseeees setsesseseseeseaeeseneestsassesesaseeeens 9 Western States Petroleum Associationv. Superior Court (1995) 9 Cal.4th 559oisccceccssssecccessccecscsccesssccccsnscessserecsesessesecesseauscersusceceeseecesese 22 _ Whaler’s Village Club v. California Coastal Commission (1985) 173 Cal-App.3d 240..........sesesevesesesceneesseessneescesseseeeaeeesseeaseceesensseensssssesencneeswee dl World Savings andLoan Association v. Kurtz Co., Inc. (1960) 183 CalApp.2d 319oo.cesssscccscsssessssssssssesssvssssssccsssecsssesceesscssesesscscesess 12 Other State Cases Morgan v. Planning Dept., County ofKauai (2004) 86 P.3d 982 oeeecesesesssessscssessesessesesseseessesesesssscesstssesscsscsusesssessvscesecsaesuesaeess 28 State Statutes California Health & Safety Code § 38501 oeecccccccssesseccsscescecssssssscssscceseescesneesscssssecaveseseessscccesssauesscesauecsssentaseseesanes 22 California Civil Code § 3521...“eelascecceeeesessecsceseecceececenseeessesesesesessceesusesesesssecsesssasssaseccsseesecsteceeesatesersetsensecnse 4 Public Resources Code § 30607 oo. ceccccescccessssesscccessecscssssucsscsssosecauavcesnseceesusessssesensesessceesecseaseesesatesseceracesessees 18 § 30801 oeeeecesccsssecessecsteesscesscsccssssessssecsscssseessasssvsacevssesscessessaueeseacesdacessusssessesersceseece 9 § B00] oo.ceessecssecssesesecsrsesssssssssssecessccsssacessuceessesesetsneesssssensseesaueceesarcaecsuseseces 13, 16 § BOOOLS occcccseesesssesessceressscssssusssssccsecsrsecesasesesssessessscsessseeeseesasessescsssssecssssesescens 14 § 30007.5 ooo eccceccccsessssscsecessecccssecssvsssecessscecssaeeecestasesaceessuscesuseceesssscecensecsese 14, 15,19 § 30009 oo. eeececssssccssscssssessscsscccesssssssscscesssecececseceserseesssesstacevecssecesenssessesssecssecsancecessece 18 Vi City Statutes - Encinitas Municipal Code § 30.34.020. ...cccccsccccsesssssesscsesessessecssesssssessesscscssssssssssssesstsstssssessesusaesessessucsuessessesseaseeses 35 § 30.76.010 ooeeeccssscsseessscessesssssessessseeseeeeserens seeseseseseneseesesesecseacesseeussssasssarseeasseeaeees 35 § 30.76.070 oo.eesescescsesecceesseseceseccssesnensesssesssessessessssesestessesssseessssscsscasseuecsecaseaceassase 36 § 30.80.050 ooeeesenesecsseeeeetsesesccescecesescecsssessessssessseesscssesessecsesstcsssssoscactesecsceaneaaes 36 Encinitas General Plan | Circulation Element, Policy 6.7 ......cccccsccssssessesscssessesesesessssestessesssecsscsscavsssssesscaccassacares 34 Public Safety Element, Policy 1.6 ......-.essessessssesssssssessessseeneessessseseeneesssesesssneensecneeaseess 34 Other Authorities California Air Resources Board, First Update to the Climate Change Scoping Plan (2014) w.ececscccsccssssscescssseseseeees 23, 24 _ California Coastal Commission, California Coastal Commission Sea Level Rise Policy Guidance: Recommended Final Draft (July 31, 2015) wo...Meseneneee 24, 25 Hawai’i DepartmentofLand & Natural Resources, Hawai’i Coastal Erosion ManagementPlan http://www.dlnr.hawaii.gov/occl/coastal-lands/..........c.ceeseeeeseees27 James Boyd, R.I. Coastal Resources Management Council, CRMC Climate Change Adaptation Actions http://www.crmc.ri.gov/news/2013_0201climate.html...csesssseesceseeseseeees24 Miller, Grappling With Uncertainty: Water Planning and Policy in a Changing Climate (2010) 5 Envtl. & Energy L. & Pol’y J. 395 .ooccececccccssesscscsscsccsececcsereccsssessersssssseseeeee 25 N.C. Coastal Resources Commission, North Carolina Sea Level Rise Assessment Report (draft) (Mar. 31, 2015) http://www.nccoastalmanagement.net/web/cm/sea-level-rise-study-update............... 24 Pachauriet al., IPCC, Climate Change 2014 Synthesis Report: Summaryfor Policymakers (2015)....ccsscsscecssesescssseseesssessessescesecsessesessssscscsessesesssscscsscsssestanseaeeacs 23, 24 S.C. Department of Health & Environmental Control, Shoreline Change Advisory Comm., Adapting to Shoreline Change: A Foundation for Improved Management and Planning in South Carolina (Apr. 2010) http://www.scdhec.gov/homeandenvironment/water/coastalmanagement/bea chmanagement/beachfrontmanagement/ seeseeaeeescessceseesseeseseeseeneeseceseenecsssesnenasseeseeeetenes 27 Vil SUMMARY OF ARGUMENT The Coastal Commission determinedthat it could not approve Plaintiffs’ coastal developmentapplication to construct a seawall unless Plaintiffs agreed to conditions limiting the term of their permit. Plaintiffs agreed and recorded deedrestrictions irrevocably covenanting with the Commissionthatthe special conditions apply to their properties. The Commission then issued the permit, relying on Plaintiffs’ commitment, and Plaintiffs proceeded to construct the seawall. Despite this undisputedhistory, Plaintiffs contend that they have not waivedthe right to challenge the validity of their permit’s special conditions. They ask this Court to ignore the unambiguoustermsoftheir recorded deedrestrictions and, instead, to give effect to their subjective intent. AllowingPlaintiffs to challenge the permit’s special conditions after accepting its benefits would impair the critical goals of finality and certainty in governmental decision making, throwing orderly and balancedland use planning into chaos. It would also undermine the confidence with which property owners and local governments proceed with developmentprojects, interfering as well with agencies’ ability to fashion effective mitigation measures to address the impacts of the projects that come before them. | Having waivedtheir right to judicial review, Plaintiffs may not pursuethis challenge to the terms of their seawall permit. Notwithstanding their waiver, Plaintiffs’ challenge is meritless. The Commission’s action approving their permit subject to a twenty-year authorization and renewal processis entirely consistent with the overall purpose ofthe Coastal Act as evidenced by the Commission’s findings. Moreover, the Commission’s decision protects coastal resources while respecting the property interests I of Plaintiffs and their coastal neighbors. Substantial evidence plainly supports the agency’s chosen course ofaction, and this Court should thus affirm the conditions’ validity. Likeall public agencies, the Commission mustexercise its broad and flexible | powersso as to promote the public welfare, adopting policies that address the difficult and novel challenges that they confront. This power expands to deal with new problems, includingthesignificant and uncertain effects of climate change andsealevel rise. The durational permit term allows the Commissionto reassess the seawall’s impacts on coastal resources and adjacent properties and determine, consistent with its mandate,if changesto Plaintiffs’ permit are required. Plaintiffs’ claim that the durational permit conditions constitute a regulatory takings of their property is not ripe for judicial review. Consistent with the permit’s special conditions, Plaintiffs must apply to amendtheir permit prior to the end ofits term. Plaintiffs’ takings claim would have the Court opine as to how the Commission will respondto the future amendmentapplication. The ripeness doctrine precludes such speculation. Plaintiffs also err in asserting that the Commission’saction runs afoul of the unconstitutional conditions doctrine. Not only does the doctrine not encompassthe durational permit condition, Plaintiffs have no constitutional right to construct a seawall. Nor were theyentitled to reconstruct their beach access stairway. The Encinitas local coastal program andits general plan prohibited the private stairway. Moreover, the stairway wasa legal non-conforming use; the City’s zoning codebarredPlaintiffs from reconstructing the stairway after it had been damagedby a storm. 2 This Court should find that Plaintiffs have waived their right to challenge the - Commission’s special conditions. Ifthe Court proceeds to address their claims, it should uphold the validity of the twenty-year term on Plaintiffs’ seawall permit and the prohibition on reconstructing their beach access stairway. I. The Court of Appeal Properly Concluded that Plaintiffs Waived Their Right to Challenge the Conditions of their Coastal Development Permit. A. Plaintiffs Specifically Agreed to the Conditions andAccepted the Permit’s Benefits By Constructing the Project. Thereis no dispute that the Coastal Commission approvedPlaintiffs’ application to construct a seawall ontheir properties subject to special conditions that: prohibited reconstruction of a private access stairway from Plaintiffs’ property to the beach below; authorized the project for a twenty-year period; and required Plaintiffs to apply for a permit amendmentto extend the seawall’s authorization beyond thetwenty yearperiod, or to remove, modify or expand the seawall. (Administrative Record (“AR”) 1681-83.) If Plaintiffs submit a complete application to amend their permit before the twenty-year period expires, the Commission must automatically extend and maintain the seawall’s authorization until the time thatit acts on the application. (/d. at 1683) The Commission expressly concluded, before approving Plaintiffs’ permit, that “butfor the imposition ofthe Special Conditions,the proposed developmentcould not be found consistent with the provisions of the [Coastal] Act and that a permit could therefore not have been granted.” (Joint Appendix (“JA”) 24-25, 45-46, italics added.) Plaintiffs explicitly acknowledged the Commission’s “but for” finding when they signed, notarized, and recorded deedrestrictions on their properties, as required by Special 3 Condition 17. (See ibid.) The deed restrictions state that Plaintiffs “elected to comply with the Special Conditions, which require, among other things, execution and | recordation ofthis Deed Restriction, so as to enable [Plaintiffs] to undertake the developmentauthorized by the Permit. . . .” (Jbid.) The deedrestrictions further state that Plaintiffs, “in consideration of the issuance of the Permit .. . hereby irrevocably covenant[s] with the Commissionthat the Special Conditions . . . shall at all times . . constitute for all purposes covenants, conditions andrestrictions on the use and enjoyment ofthe Property.” (/bid., italics added.) After Plaintiffs satisfied all of the permit’s conditions precedent, the Commission issued the developmentpermit, and Plaintiffs constructedtheir seawall. Plaintiffs now contendthat they did not waivetheir right to challenge the validity of their permit’s special conditions because they filed a “timely petition for writ of mandate under Section 1094.5.” (Reply Br.at p. 6.) It is well-established, however, that ‘a landowner whoaccepts a building permit and complies with its conditions waives the right toassert the invalidity of the conditions and sue the issuing public entity for the costs of complying with them.”(Pfeiffer v. City ofLa Mesa (1977) 69 Cal.App.3d 74, 78; see also Civ. Code, § 3521 [““He whotakes the benefit must bear the burden.”].) The filing of their writ petition does not negate Plaintiffs’ unmistakable waiverhere. Plaintiffs’ reliance on this Court’s decision in County ofImperial v. McDougal (1977) 19 Cal.3d 505 to support their argumentis to no avail. (Opening Br.at pp. 22-23; Reply Br. pp. 7-8.) McDougalexplicitly states that a property owner is barred from ‘challenging a condition imposed onhis permit if he has acquiescedto the condition “by 4 either specifically agreeing to the condition or failing to challenge its validity, and accept[ed] the benefits afforded by the permit.” (McDougal, supra, 19 Cal.3d at 510-11, italics added.) There is no question that Plaintiffs “specifically agreed”to the permit’s special conditions by signing, notarizing, and recording deedrestrictions that “irrevocably covenant”to the conditions, “in consideration of the issuance ofthe Permit.” (JA 24-25, 45-46.) Their agreement, coupled with their acceptance ofthe permit’s benefits by constructing the seawall, satisfies McDougal’“either-or” test for waiver. Plaintiffs are therefore barred from challenging the invalidity ofthe permit’s special conditions. Recognizing that they need to fashion a novel theory to avoid dismissal oftheir lawsuit, Plaintiffs claim that they did not have any “actual intention to relinquish”their right to challenge the permit’s special conditions when they executed and recorded the deedrestrictions. (Reply Br. at p. 3.) Plaintiffs cannot avoid the consequencesoftheir actions by invoking their subjective intent. Although a development approvalis not a contract, courts apply the samerules of interpretation to deed restrictions and contracts. (Costa Serena Owners Coalition v. Costa Serena Architectural Committee (2009) 175 Cal.App.4th 1 175, 1199.) The “principal rule of contractinterpretation is to give effect to the parties’ intent as expressedin the termsofthe contract.” (RegionalSteel Corp. v. Liberty Surplus Ins. Corp. (2014) 226 Cal.App.4th 1377, 1389 ) The deedrestrictions that Plaintiffs signed of their own volition expressly state that Plaintiffs “elected to comply with the Special Conditions, which require, among other things, execution and recordation of this Deed Restriction, so as to enable [them] to 5 undertake the developmentauthorized by the Permit. . . .” (JA 24-25, 45-46.) Leaving no room for ambiguity, the deedrestrictions alsoexpressly state.that Plaintiffs, “in consideration ofthe issuance of the Permit . . . irrevocably covenantwith the . Commission”that the special conditionswould run with the land for the duration ofthe permit. (Ibid.) It is beyond question that “where the terms of an agreementaresetforth in writing, and the wordsare not equivocal or ambiguous, the writing or writings will constitute the contract ofthe parties, and oneparty is not permitted to escape from its obligations by showingthat he did not intend to do what his words bound him to do.” (Brant v. California Dairies, Inc. (1935) 4 Cal.2d 128, 134,italics omitted.) The fact that Plaintiffs “exercised their right ofjudicial review, while contemporaneously recording the deedrestrictions” does not alter the outcome.(Reply Br.at p. 3.) It is Plaintiffs’ “expressed objective intent” in the recorded deedrestrictions that governs, not any “unexpressed subjective intent”that they claim now in the courseoflitigation. (See Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 93.) Furthermore,Plaintiffs’ “actual intent” argument cannot be sanctioned. The Court ofAppeal correctly admonishedPlaintiffs for signing and recording legal documents “purporting to establish covenants running with the land when [they] did not actually . intend to establish such covenants.” (Opinion at p. 8.) In every contract, there is an implied covenant of good faith and fair dealing that neither party will act in a way to compromisetherights ofthe otherto receive the contract’s benefits. (Lincoln General Ins. Co. v. Access Claims Administrators, Inc. (E.D.Cal. 2009) 596 F.Supp.2d 1351, 6 1368.) “The covenant imposes on each party not only the duty to avoid acting in a way that compromises the performance ofthe contract, but also the duty to do everything that the contract assumes they will do to bring aboutits purpose.”bid. If Plaintiffs did not intendtorestrict their properties in accordance with the special conditions of the permit, they acted in bad faith by executing andrecording the deedrestrictions, and specifically sought to frustrate the “purpose”ofthe deed restrictions. Plaintiffs’ apparent “subterfuge” cannot be condoned. (Opinionatp. 8.) | Plaintiffs reaffirmed their waiver ofthe right to challenge their permit’s special conditions by proceeding to construct the seawall. As this Court hasinstructed, “if the permittee exercises its authority to use the property in accordance with the permit, it must accept the burdens with the benefits of the permit.” (Sports Arenas Properties, Inc. v. City ofSan Diego (1985) 40 Cal.3d 808, 815; see also Sterling Park, L.P. v. City ofPalo Alto (2013) 57 Cal.4th 1193, 1207 [“Obviously, one cannot build a project now and litigate later how manyunits the project can contain—or how large each unit can be, or the validity of other use restrictions a local entity might impose.”|,italics added.) Plaintiffs could have refused to sign the deed restrictions and delayed construction _of the seawall while they challenged the validity of the permit’s special conditions. But they chose different course ofaction, “electing”to build the seawall after the _ Commission issued the permit in reliance on Plaintiffs’ promise to comply with the special conditions. (See McLain Western #1 v. County ofSan Diego (1983) 146 Cal.App.3d 772, 776 [distinguishing between a party who has“no further ability to make an election” as to his course of action, and applicants who have“the ability to elect to 7 decline the benefits of the permit”).,) Plaintiffs cannot have their permit and challengeit, too. Having accepted the permit’s benefits, they are foreclosed from asserting the invalidity of its conditions. B. Creating an “Under Protest” Exception to the General Waiver Rule Would Impair the Important Goals of Finality and Certainty in Governmental Decisionmaking. The Court ofAppeal wisely, and correctly, refused to create a new “underprotest” exception to the general waiverrule, which wouldallow property owners to construct projects while simultaneously challenging their permit’s non-fee conditions. Such an exception would swallow the general waiverrule. As the Court ofAppeal observed, developers routinely elect to accept conditions they disfavor in orderto obtain a permit. (Opinion at pp. 7-8,)-The waiver exception that Plaintiffs seek would also impair the critical needfor finality and certainty in land use planning.To this end, the legislature has carefully balanced property owners’ rights and government’s need for a smoothly functioning development approvalprocess. Plaintiffs here want the benefits without the balance. This Court has emphasized the importance offinality and certainty in government’s land use decisions. For example, in Hensler v. City ofGlendale (1994) 8 Cal.4th 1, the Court concludedthatthe statutesof limitations for challenging the validity of local land use regulations barred plaintiff's claims that a city ordinance effected an unconstitutional taking of his property. (/d. at 21-22.) The Court observed that the “purposeofstatutes and rules which require that attacks on land-use decisions be brought by petitions for administrative mandamus, and create relatively short limitation periods 8 for those actions, and actions which challengethe validity of land use statute, regulations, and/or decisions, is to permit and promote soundfiscal planning by state and local governmentalentities.” (/d. at 27.) Morerecently, in Travis v. County ofSanta Cruz (2004) 33 Cal.4th 757, this Court affirmed that the purpose ofa relatively short statute of limitations to challenge local land use decisionsis to “provide certainty for property owners and local governments regarding decisions ... andthusto alleviate the chilling effect on the confidence with which property owners and local governments can proceed with projects. ...” (Ud. at 765, citations and internal quotation marks omitted.)' The Coastal Act’s 60-day statute of ’ limitations to challenge an action of the Commission (Pub. Resources Codesection 30801) serves the same purposeastherelatively short statute of limitations at issue in Hensler and Travis. (See also Ojavan Investors, Inc. v. California Coastal Commission (1994) 26 Cal.App.4th 516, 525 [“Once the 60-day statute of limitations has run, the permit issued must be deemedgoodas against the world.”}.) To exemptPlaintiffs’ actions—specifically agreeing to the special conditions and accepting the benefits of the permit—from the general waiver rule would unquestionably undermine the confidence with which property owners and local governments proceed with development projects. ' See also Urban Habitat Program v. City ofPleasanton (2008) 164 Cal.App.4th 1561, 1571 [statutes of limitationsare “specifically designed to ensure finality with regardto land use planning decisions.”]; Ching v. San Francisco Board ofPermit Appeals (1998) 60 Cal.App.4th 888, 893 [“any delay in the resolution of local land-use disputesis ultimately reflected in increased costs to the public.”]; McLain Western #1, supra, 146 -Cal.App.3d at 776-77 [local government “requires andis entitled to certaintyin its fiscal affairs and budget procedures”. Additional policy reasons mitigate against the creation of a new “under protest” | exception to the general waiverrule. First, such an exception wouldlead to absurd results, because property owners would be free to accept the benefits ofa land use approval, begin construction, and then file an action challenging numerousconditions of their permit. Such uncertainty would throw orderly land use planninginto chaos. (See Pfeiffer, supra, 69 Cal.App.3rd at 78 [ifproperty owners “couldunilaterally decide to comply with [permitconditions] under protest, do the work, andfile an action in inverse condemnation . . . complete chaos would result in the administration ofthis important aspect of municipal affairs”].) Second, if the special conditions of Plaintiffs’ permit are found invalid after the projectis built, the Commission maynotbe ableto fashion effective mitigation measures to addressthe identified impacts on coastal resources and adjacent properties. (See AR 1685 [confirming that the project’s “developed mitigation plan covers impacts only through the approved 20-year design life of the seawall’’].) Plaintiffs’ exception would allow them to retain the benefits of the Commission’s approval while limiting or eliminating the essential burdens that the Commission determined were required for consistency with the Coastal Act. (See JA 24-25, 45-46.) Moreover, as the Court ofAppealcorrectly concluded, “the need for or desirability of” a new exception to the general waiverrule is “a matter best left for legislative resolution.” (Opinionat p. 8.) Indeed, it was the Legislature that decided to create a limited exception to the general waiver rule with the enactmentof Senate Bill 2136in 1984. (See Sterling Park, supra, 57 Cal.4th at 1201 [citing Shapell Industries, Inc.v. 10 Governing Board (1991) 1 Cal.App.4th 218, 241].) That exception, now codified in Government Code section 66020, allows a property ownerto challenge the validity of conditions imposed on a building permit that divest him of “money or a possessory interest in property, but not restrictions on the mannerin which [he] may use [his] property.” (/d. at 1207.) Notably, that exception is limited to conditions imposed by local agencies; it does not apply to conditions imposed by state agencies, such as the Commission. (/bid.) It is for the Legislature, rather than the judiciary, to determineifthe general waiver rule should be expandedto include challenges to non-fee permit conditions. (See Friends ofShingle Springs Interchange, Inc. v. County ofEl Dorado (2011) 200 Cal.App.4th 1470, 1492 [recognizing the “legislative policy underlying the short land use limitations periods” and confirming that “[c]ourts defer to the legislative branch in matters ofpublic policy.”].) C. Plaintiffs Cannot Avoid the Effect of Their Waiver ByInvoking the Deed Restriction’s Severability Clause. Plaintiffs contendthat they did not waive their right to challenge the permit’s special conditions becausethe deedrestrictions that they signed and recorded contained a ‘severability clause that “allows for, and contemplates, a judicial challenge.” (Reply Br.at pp. 4-5.) However, a “party to an agreement cannotusethe severability clause to remove from the agreementlegally valid enforceable language which has fan] effect” that the party does notprefer. (City ofBell v. Superior Court (2013) 220 Cal.App.4th 236, 252 fn.17,) The severability clause affords Plaintiffs no escape from the consequencesoftheir waiver. 1] As noted above, courts apply the samerulesin interpreting deedrestrictions, contracts, and statutes. (Costa Serena Owners Coalition, supra, 175 Cal.App.4th at 1199.) A contractis “not severable, when by its terms, nature, and purpose,it contemplates and intendsthat each andall ofits parts, material provisions, andthe consideration, are commoneach to the other and interdependent.”(Sterling v. Gregory (1906) 149 Cal. 117, 120; see also World Savings andLoan Associationv. Kurtz Co., Inc. (1960) 183 Cal.App.2d 3 19, 327-28 [finding no severability where “the parties intended the entire matter to be single and indivisible”].) The special conditions and the other requirements and authorizations in Plaintiffs’ permit are clearly “interdependent.” The Commission specifically concluded that “but for the imposition of the Special Conditions, the proposed developmentcould not be fouind consistent with the provisions of the Act and that a permit could therefore not have been — granted.” (JA 24-25, 45-46.) Accordingly, the deedrestrictions and the permit “‘contemplate[] and intend[] that each andallofits parts,” including the conditions,are indivisible and cannotbe severed. (Sterling, supra, 149 Cal. at 120.) Likewise, a severability clause in a statute will only sustain the valid portion of the enactment if there is also an ability to mechanically sever the invalid portion,and the remainder “is complete in itself and would have been adoptedby the legislative body had the latter foreseen the partial invalidity of the statute.” (Palmer/Sixth Street Properties, L.P. v. City of.Los Angeles (2009) 175 Cal.App.4th 1396, 1412 [finding no severability where an ordinance’s in lieu fee provision and affordable housing requirements were “inextricably intertwined” and severance would “serve no useful purpose”].) If the Court 12 wereto find that the special conditionsofPlaintiffs’ permit are invalid, the remainder plainly would not be “complete in itself’ nor would the Commission have approved the permitif it had foreseen the invalidity ofthe special conditions. The special conditions are SO “inextricably intertwined” with the permit’s approval that severing them would “serve no useful purpose.” Accordingly, Plaintiffs’ reliance on the deedrestrictions’ severability clause to avoid the effect of their waiver is unavailing. II. The Court of Appeal Properly Upheld the Commission’s Decision to Approve Plaintiffs’ Permit Subject to a Twenty-Year Authorization and Renewal Period. A. Limiting the Duration of the Permit is Consistent with the Overall Purposeofthe Coastal Act and Supported by Substantial Evidence. The Coastal Actis predicated onthelegislative finding that the California coastal zoneis “a distinct and valuable natural resource of vital and enduring interest to all the people and exists as a delicately balanced ecosystem.” (Pub. Resources Code,§ 30001, subd.(a).) Accordingly, “the permanentprotection ofthe state’s natural and scenic resources is a paramount concern to present and future residents of the state and nation.” (§ 30001, subd. (b).) The Act declares that “it is necessary to protect the ecological . balance of the coastal zone and preventits deterioration and destruction” inorder to promote public safety, health, and welfare, and to protect public and private property, wildlife, marine fisheries, other ocean resources, and the natural environment. (§ 30001, subd.(c).) * Further statutory references in this brief are to the Public Resources Codeunless otherwisestated. 13 Consistent with these legislative findings and coastal zone values, the Act outlines _ five fundamental goals and objectives: (a) Protect, maintain, and, where feasible, enhance andrestore the overall quality ofthe coastal zone environmentandits natural andartificial resources; (b) Assure orderly, balanced utilization and conservation of coastal zone resources taking into account the social and economic needsofthe people of the state; (c) Maximize public access to and along the coast and maximizepublic recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights ofprivate property owners; (d) Assure priority for coastal-dependent and coastal-related development over other developmenton the coast; (e) Encouragestate and localinitiatives and cooperation in preparing procedures to implement coordinated planning and developmentfor mutually beneficial uses, including educationaluses, in the coastal zone. (§ 30001.5.) Recognizing that these objectives may on occasion be at odds with one another, the Act requires that any conflicts betweenits cited goals andpolicies “be resolved in a | manner which on balanceis the mostprotective ofsignificant coastal resources.” (§ 30007.5, italics added.) Courts “construe the statute liberally in light of its beneficent purposes,” acknowledging that the “highest priority must be given to environmental consideration in interpreting the statute.” (Bolsa Chica Land Trust v. Supérior Court (1999) 71 Cal.App.4th 493, 506.) Andthe Commission, in its review ofpermit applications,strives to achieve “a delicate balancing ofthe effect of each proposed development upon the environmentofthe coast.” (City ofSan Diegov. California Coastal Commission (1981) 119 Cal.App.3d 228, 234) In City ofSan Diego, the Commission denied a permit to realign and widen a road adjacent to a lagoonthat constituted one ofthe “highest priority wetlands”in the state. 14 (/d. at 231-32, 234.) The agency haddeterminedthat the proposed project was not in conformity with the Act, as it would have significant adverse impacts on oneofthe last natural coastal wetlands, which was “unique and especially sensitive,” and feasible alternatives existed that would improve coastal access without negatively affecting coastal wetlands or endangered species. (/d. at 231-34.) Affirming the Commission’s denial ofthe permit, the court of appeal acknowledgedthat the agency hadselected a course of action in keeping with section 30007.5’s directive, since it had “delicately balanced the competinginterests of the protection ofa significant natural resource and the resolution of a road safety problem,” which could be mitigated without harming the lagoon. (/d. at 234.) The Commission hadalso “succeeded in balancing the conflicting goals ofpreserving natural resources while maximizing access to the coast consistent with the needs of the public.” (/d. at 235.) Here, the Commission’s decision to approve Plaintiffs’ permit subject to a twenty- year authorization and renewalprocess similarly reflects a balancing of the Act’s goals in a mannerthat is “most protective of significant coastal resources.” (§ 30007.5.) According to the Commission’s findings, a seawall is necessary to protect Lynch’s home, but natural shoreline processes, “such as the formation and retention of sandy beaches, can be significantly altered by construction of a seawall, since bluff retreat is one of several ways that beach area and beach quality sand is added to theshoreline.” (AR 1702.) To balance these competinginterests, the proposed development wasspecifically “designed and conditioned to mitigate its impact on coastal resources such as scenic quality, geologic concerns, and shoreline sand supply.” (AR 1679.) The Commission 15 selected a courseofaction thatprioritizes coastal resource concerns, seeking, for example, to prevent “long-term loss of beach,” as wellas losses in recreational use and . value that result from the loss of available shoreline area. (AR 1702, 1708.) The Commissionalso strove to balance the competing interests of Plaintiffs and neighboring property owners. Accordingto its findings, the proposed seawall, which is located in a “significantly high-hazard area,” could have “adverse impacts on adjacent unprotected properties caused by wavereflection, which leads to accelerated erosion.” (AR 1709-10.) The Commission notedthat “[n]umerousstudies have indicated that when - continuousprotection is not provided, unprotected adjacent properties experience a greater retreat rate than would occurifthe protective device were not present.” (AR 1709.) The twenty-year authorization and renewalprocess respects the property interests ofPlaintiffs as well astheir neighbors, because it allows the Commissiontorevisit its approvalofthe permit in twenty years, to see if adjacent properties have been affected by “likely” bluff erosion and collapses that could “spill over.” (/bid.) The Commission’s decision is also consistent with the Act’s directive that the “permanentprotection of the state’s natural and scenic resources”is a “paramount concem.” (§ 30001, subd. (b).) The Commission noted that seawalls “directly impede[]” the natural processes of beach formation, and the quantifiable effects include the “long- term loss of beach.” (AR 1702.) It also acknowledged the uncertainty inherent in current projections of sea level rise. (AR 1710 [“Of course it is possible that physical circumstances[in twenty years] . . . are significantly unchanged from today,butit is perhaps morelikely that the baseline context for considering armoring will be different— 16 Much as the Commission’s direction on armoring has changed overthe past twenty years as more information and better understanding has been gained regarding such projects, including theireffect on the California coastline.”].) Authorizing Plaintiffs’ project for a twenty-year period, subject to renewal, “ensure[s] that this project does not prejudice future shoreline planning options, including with respect to changing and uncertain circumstancesthat mayultimately change policy and other coastal development decisions.” (AR 1709.) The permit’s special conditions allow the Commission to reassess the seawall and its effects with the passage oftime,as understanding aboutclimate changeand sealevelrise “should improvein the future,” and such an “improved understanding will almost certainly affect [coastal development permit] armoring decisions, includingat this location.” (AR 1710; see also AR 1716 [predicting that the seawall would have no effects on beach accessfor twenty years, but that “at the end of the authorized 20 year period, the beach conditions and mean hightide elevation should be re-evaluated to determineif this condition has changed.”].) The conditions afford the Commission the flexibility necessary to ensure “permanent protection” of the shoreline and coastal zone environment’s resources. _ The administrative record thus amply demonstrates that substantial evidence supports the Commission’s decision to impose a durationallimit on Plaintiffs permit. The Commission considered the relevant factors—the need for the seawall, the necessary mitigation, effects on public access, and possible changesin coastal conditions—based on the available evidence.It also considered the purposes ofthe enabling statute and demonstrated that its chosen course of action wasrationally related to those factors and 17 purposes. Accordingly, Plaintiffs’ challenge to the Commission’s decision mustfail. (See Kirkorowicz v. California Coastal Commission (2000) 83 Cal.App.4th 980, 986 [confirmingthat “it is forthe Commission to weighthe preponderanceof conflicting evidence,” and courts “mayreverseits decision onlyif, based on the evidencebeforeit, a reasonable person could not havereached the conclusion reached by it”].) B. The Commission Has Authority to Impose Durational Permit Conditions. Contrary to Plaintiffs’ assertions, the Commission acted well within its authority whenit approved the permit subject toa twenty-year authorization and renewalperiod. As the Court of Appeal affirmed in Ocean Harbor House Homeowners Associationv. California Coastal Commission (2008) 163 Cal.App.4th 215, the Act grants the Commissionbroad discretion to impose permit conditions to mitigate the impacts of proposed development, andthereis no statutory language that purports to limit that discretion. (/d. at 241.) Section 30607ofthe Act, for example,broadlystatesthat any coastal development permit issued “shall be subject to reasonable terms and conditions. . . to ensure that [the permitted action]will be in accordance with the provisions ofthis division.” (§ 3 0607.) And section 30009 provides that the Act “shall be liberally construed to accomplish its purposes and objectives.” (§ 30009.) “[H]ad it been the Legislature’s intent to limit permit conditions, one would reasonably have expected direct or expresslimiting language-—e-p. seawalls shall be permitted and the Commission may only impose conditions that mitigate sand loss; or seawalls shall be permitted, and the 18 Commission may not impose any conditionsotherthan those that mitigate sand loss.” (Ocean Harbor, supra, 163 Cal.App.4th at 241, italics omitted.) Moreover, courts consistently recognize that “the Commission has a general mandate to implement the Coastal Act to preserve and protect the California coast and thus has broad administrative responsibility to regulate coastal development by enforcing applicable laws and regulations and imposing conditions on developmentpermits.” (Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, 1363.) There is “nothing in the Coastal Act or in any otherstatute, regulation, or legal opinion”’that wouldlimit or prohibit the Commission from conditionally approving Plaintiffs’ seawall — subject to a twenty-year authorization and renewalprocess. (See La Costa Beach | Homeowners’ Association v. California Coastal Commission (2002) 101 Cal.App.4th 804, 816-817 [rejecting challenge to mitigation condition imposed on development permit].) The Commission’s durational permit condition is not novel. The Court ofAppeal in Barrie v. California Coastal Commission (1987) 196 Cal.App.3d 8 affirmed the Commission’s authority to condition the permit for a permanent seawall to require that homeownersreconstruct and relocate the temporary seawall they had built on a public beach. The temporary seawall wasconstructed pursuant to a 150-day emergency permit that acknowledgedthe likelihood ofrelocation. (/d. at 12-13.) In finding for the Commission,the court cited the Act’s requirementthat the Commission resolve any conflict between the statute’s different policies “in a manner whichon balanceis the most protective of significant coastal resources.” (/d. at 17 [citing § 30007.5].) The court 19 concluded that the Commission had the authority to “weigh[] the need to protect the: public beach against the Homeowners’ needto protect their homes.” (/d. at 21.) And the “condition requiring relocation of the seawall was a reasonable accommodation of these two needssinceit mitigated the negative impact on the beach while still affording the Homeownersthe opportunity to protect their homes.” (/d. at 21-22.) The Commission exercised the same broad discretion whenit approved Plaintiffs’ permit subject to a twenty-year authorization and renewal process, accommodating both Plaintiffs’ and adjacent property owners’ need to protect their homes and the Act’s “paramount | concern”—theprotection of significant coastal resources. The court in Barrie also affirmedthat there is “nothing improper about the Commission basingits findings on probabilities,” as that is “inherent in decision-making involving protective structures.” (/d. at 21.) The opinion recognized that the Commission’s findings—i.e., seawalls “cause beach erosion and sand loss”—were “not based merely on speculation but on numerous well-documented reports,” and they were “not based on a mere possibility ofbeach erosion, but on a strong probability as documented in numerous studies.” (Ibid.) Likewise, the Commission’sfindings here—i.e. a “twenty-year period better respondsto [] potential changes and uncertainties,” particularly with respect to climate change and sealevel rise—are based on real science and strong probabilities, documented in numerousstudies. (AR 1710; see infra Part II.C.) The Coastal Act not only authorized, but required the Commissionto respondto these concerns in approving Plaintiffs’ coastal developmentapplication. 20 C. The Durational Authorization Condition Is an Appropriate Response to the Uncertainty Associated with Sea Level Rise. Climate change presents public agencies with complex challenges made more difficult by uncertainty surrounding when and howits impacts will arise. To addressthis uncertainty, agencies have adopted flexible policies that allow them to adjust to changing conditions. The durational permit condition and reauthorization processat issue hereis one suchpolicy. Like otherflexible responses, the condition prevents the Coastal Commission from irreversibly committing to a course ofaction that may ultimately fail to implement the Commission’s statutorily mandated goals. Instead, the condition allows the Commission to respond to inevitable changesin coastal circumstances. The condition is not only legally permissible,it is good policy. 1. Public Agencies Must Exercise Their Broad Authority to Addressthe Effects of Climate Change. Policymakers’ ability to craft solutions to difficult and novel challengesis supported by government’s “broad and flexible powerto promote the public welfare.” (Richeson v. Helal (2007) 158 Cal.App.4th 268, 277.) This power expandsto deal with _. new problemsand doesnot fade in the face of uncertainty. (See ibid. [“A city’s police power‘is not a circumscribed prerogative, but is elastic and, in keeping with the growth of knowledgeand the belief in the popular mind ofthe need forits application, capable of expansion to meet existing conditions of modern life, and thereby keep pace with the social, economic, moral, and intellectual evolution of the humanrace.’”(quoting Miller v. Board ofPublic Works (1925) 195 Cal. 477, 485)].) 2] Faced with uncertain circumstances, public agencies are not required to predict the future with exact precision, but may instead act based on currently available information. See, e.g., Alliance ofSmall Emitters v. South Coast Air Quality ManagementDist. (1997) 60 Cal.App.4th 55, 63-65 [analysis ofproposed cap-and-trade system may rely on incomplete available data: “It would be impossible to devise a long-rangeair pollution control programif [its] legality . .. depended uponthe ability to makeprecise assessments of... data . . . which are not yet available.”],) The substantial evidence standard ofreview reinforcesthis ability by deferring to agencies’ rational decisions based on adequate consideration of available evidence. (See Sonoma County Water Coalition v. Sonoma County Water Agency (2010) 189 Cal.App.4th 33, 40-41 [the court’s role is not to second-guess agency decisions,but to “ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.” (quoting Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 577, internal quotation marks omitted)].) Climate changeis oneofthe most seriousthreats facing California.Its potential impacts includeincreasedair quality problems, reduced water supply, damage to sensitive ecosystems, increases in infectious diseases and heat-related mortality, and sea level rise that threatens to displace coastal communities and permanently alter the shoreline. (See Cal. Health & Saf. Code, § 38501.) California’s economyis uniquely vulnerable due to the state’s many climate-dependentsectors, includingagriculture, viniculture, tourism, fishing, and forestry. bid. 22 California is already feeling the effects of climate change, and matters are only expected to get worse. (Cal. Air Resources Bd., First Update to the Climate Change Scoping Plan (2014) at ES5.) Results of the changing climate are visible on the state’s | beaches, where seas have swelled six inches or more since 1900. (/d. at p. 11.) And due to warming temperatures, ice sheets and glaciers have been melting at alarmingrates, hastening the ocean’s advance along our Pacific coast. (/d. at p. 9.) These trends are expected to continue. (/d. [“[c]urrent glacier extents are out of balance with current climatic conditions, indicating that glaciers, ice sheets, and sea ice will continue to shrink in the future even without further temperature increases”].) Despite scientific consensusthat sea levels will continuetorise, the timing and magnitude of climate change impacts is subject to vast uncertainty. Not only are complex natural systems challenging to model, but the humanfactors that affect those systems are difficult to predict. For example, the Intergovernmental Panel on Climate Change (IPCC) uses four different scenarios to develop its projections of future greenhouse gas emissions and resulting climatic changes. (Pachauri et al., IPCC, Climate Change 2014 Synthesis Report: Summaryfor Policymakers (2015) at p. 8.) These scenarios range from onein whichthe international community robustly mitigates greenhouse gas emissions to onein which emissions continue unabated. (Ibid.) Thoughscientists can estimate how each scenario will affect sea level rise with varying degrees of confidence, the IPCC does not predict which scenario is mostlikely. As a result, policymakersareleft with a wide range ofpossible outcomes. For example, by 2100, global sea level could increaseaslittle as 23 .26 meters or as much as .82 meters, and global glacial coverage could decreaseaslittle as 15 percent or as muchas 85 percent. (id. at pp.12, 13.) In the United States, sea level rise estimates differ widely from state to state. The only consistent trends acrossstates are that sea level rise will accelerate and that even the best estimates are uncertain. Forexample, RhodeIsland estimates that the sea levelat Newport will increase 36-60 inches by 2100. In contrast, North Carolina predicts slower change, with increases of 1.9-2.8 inches at Southport and 4.4-6.4 inches at Duck by 2045.4 Aswithits sister states, California is facing certain sea level rise at uncertain rates. Recent estimates of sealevel rise along the California coast predictan increase of 4-56 inches for areas north of Cape Mendocino and 17-66 inches for areas south of Cape Mendocino by 2100. (California Coastal Commission, California Coastal Commission Sea Level Rise Policy Guidance: RecommendedFinal Draft (July 31, 2015) p. 12.) Over forty inches separate the high and low estimates. To putthis gap in context, 54 inches of sea level rise could result in the disappearance of 41 square miles of coastal land from ~ Oregon to Santa Barbara. (/d. at p. 50.) 3 James Boyd, R.I. Coastal Resources Management Council, CRMC Climate Change Adaptation Actions http://www.crmc.ri.gov/news/2013_0201_climate.html[as ofApril 27, 2015]. “N.C. Coastal Resources Commission, North Carolina Sea Level Rise Assessment Report (draft) (Mar. 31, 2015) http://www.nccoastalmanagement.net/web/cm/sea-level- rise-study-update [as of July 1, 2015] p.iv. 24 2. The Uncertainty Associated With Sea Level Rise Demands a Dynamic, Flexible Response By Agency Decisionmakers. A problem like climate change, fraughtwith a high degree of uncertainty, calls for a flexible response. Considering the severe consequencesthat could result from maintaining the status quo, inaction is not an option. At the sametime, the action chosen may not achievethe desired result. Policymakers can managethese risks by adopting flexible, short-term responses that allow them to adapt to changing circumstances. Such solutions minimize the chances of decision-makers committing to a path that will ultimately work against their goals. (Miller, Grappling With Uncertainty: Water Planning and Policy in a Changing Climate (2010) 5 Envtl. & Energy L. & Pol’y J. 395, 411.) By employing near- or mid-term solutions, policies can evolve as conditions change.(See,e.g., Alliance ofSmall Emitters, supra, 60 Cal.App.4th at 65 [describing a program allowing for “mid-course corrections” as “a more sensible way of devising and managing a long-range plan than requiring impossibly precise predictions ofthe future at the outset”].) In the face of the coast’s uncertain fate, the Coastal Commission has shifted toward amoreflexible set of coastal protection strategies that will allow it to adapt to changing circumstances. The Commission’s draft sea level rise policy guidance makes this shift explicit, stating that, for certain projects, “strategies will need to be implemented incrementally as conditionschange, and planners. . . will need to think creatively and adaptively to ensure that coastal resources and developmentare protected 25 over time.” (California Coastal Commission, California Coastal Commission Sea Level Rise Policy Guidance: Recommended Final Draft (July 31, 2015) p. 20.) The twenty-year condition and renewalprocessis part of this shift. It enables the Coastal Commission to adapt to changing circumstances and new information. Rather than committing a section of the coast to one strategy—in perpetuity—that may ultimately frustrate the Commission’s attempts to implementits goals, the permit condition and renewal processallow the Coastal Commissiontotailorits policies to future realities, so that the agency’s response moreaccurately addresses the conditions that ultimately arise. For example, increased erosion flanking the seawall and the gradual disappearanceofthe beach in front of it—changesdirectly attributable to the seawall itself—may require new mitigation in twenty years. The Commission acknowledgedthis possibility when issuing the twenty-year condition. (See AR 1711, 1716 [explaining that _ new mitigation for public access and recreational use impacts may be necessary if conditions change in twenty years].) The durational permit condition gives the Commission the flexibility to address ~ future conditions. If conditions do not change, the Commission does not need to order any additional mitigation and can even choose to extend the seawall’s authorization period. (Cf.Richeson, supra, 158 Cal.App.4th at 278 [describing a City’s ability to extend a permit despite the permit’s termination date].) However, if erosion rates accelerate, the Commission may order new mitigation ora changein the seawall’s size or configuration. The durational permit condition allows the Commissionthe flexibility to address changed physical circumstances, whatever they may be. 26 3. Coastal States Are Adopting Flexible Shoreline Protection Strategies to Address Sea Level Rise. California is not alone in respondingto the threat of sea level rise by adopting flexible responsesto protect its coastline. Though shoreline protection strategies vary, _ there has been a general movement toward moreflexible solutions. States have acknowledgedthat their decisions must evolve as conditions and the state of current science change. Hawai’i, for example, recognized that beach renourishmentis not a permanentsolution, and that planning forthe failure ofits renourished beaches must occurin parallel with restoration projects.” South Carolina adjusts its beach setback line every eight to ten years to account for changesin the coastline.© And New York City has decided to implementits comprehensive coastal protection plan gradually, to allow for course corrections based on changing circumstances: “]n manycases, it may make sense to monitorthe actual rising sea levels before making someofthe aforementioned investments where associated risks may not be felt for several decades.” N.Y.C. SpecialInitiative for Rebuilding & Resiliency, PlaNYC: A Stronger, More Resilient New York (2013)at 57. ° Hawai’i Department of Land & Natural Resources, Hawai’i Coastal Erosion ManagementPlan http://www.dInr.hawaii.gov/occl/coastal-lands/ [as of July 1, 2015] p.. 8. °S.c, Department ofHealth & Environmental Control, Shoreline Change.Advisory Comm., Adapting to Shoreline Change: A Foundation for Improved Management and Planning in South Carolina (Apr. 2010) http://www.scdhec.gov/homeandenvironment/water/coastalmanagement/beachmanageme nt/beachfrontmanagement/ [as of July 1, 2015] p. 36. 27 The Hawaii Supreme Court’s decisionin Morgan v. Planning Dept., County of Kauai (2004) 86 P.3d 982 recognizes that public agencies cannot fulfill their mandate if they do not have the ability to respond to the unexpected impacts of climate change.In that case, the Planning Commission permitted construction of a revetmentin the early 1980s, but only learned ofthe environmental damageit caused to neighboring beaches years later. (/d. at 985.) Responding to this new information, the Planning Commission ordered modifications to the revetment. (/d. at 986.) The circuit court ruled for the property owner, finding that the Planning Commission lacked authority to re-open the permit. bid.) The Hawai’i Supreme Court reversed, holding that since the Planning Commission “could not[at the time it issued the permit] . . make properprovisions for conditions which mightarise in the future,”it “must possessthe inherent power to reconsidera validly issued [coastal] permit” to fulfill its statutory responsibility to protect the coast. (Id. at 992-93; see also Meridian Ocean Sys., Inc. v. California State Lands Commission (1990) 222 Cal.App.3d 153, 165 [“Inherent in the Commission’s power to issue permits is the ability to re-evaluate the conditions surroundingtheir issuance as warranted by changing circumstances.”].) The Coastal Commission’s durational permit condition is a responsible and rational responseto the significant threat thatclimate change poses to California’s coast and to Plaintiffs’ neighboring properties. Climate change is a reality. There is no question. that sea level will rise; the only question is how high. Considering the vast differencesin | potential outcomes projectedby scientists, states have chosen flexible strategies that will 28 allow them to re-assess and adaptonce conditions have changed. Thesepolicies will help ~ to avoid the mistakes that have led to the disappearance of too many sandy beaches. II. The Durational Permit Condition Does Not Violate the Takings Clause. A. Plaintiffs’ Takings Claim is Not Ripe. Plaintiffs contend that the durational permit condition constitutes a regulatory taking of their property (Opening Br. at pp. 29-34; Reply Br. at pp. 24-27), but all of their arguments fail becausetheir claim is not ripe for judicial review. In Williamson County Regional Planning Commission v. Hamilton Bank (1985) 473 U.S. 172, the U.S. Supreme Court established a two-part ripeness requirement for regulatory takings. First, a claim that the application of governmentregulations constitutes a taking is not ripe until the agency has reacheda final decision as to how thoseregulations will be applied to the | property at issue. (/d. at 186-94.) Second, if the government has provided an adequate process for obtaining just compensation, an aggrieved property owner cannot bring a takings claim until it has used that procedure and been denied just compensation. (/d. 184-197.) The Ninth Circuit has interpreted the final decision requirement to preclude a takings claim unless the government agency has denied at least one meaningful application for development and one application for a variance. (See Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449, opn. mod., 830 F.2d 968, cert. den., (1988) 484 U.S. 1043; see also Carson Harbor Village Ltd. v. City ofCarson (9th Cir. 1994) 37 F.3d 468, 474-75, overruled on other grounds in WMX Technologies, Inc. v. Miller (9th Cir. 1997) 104 F.3d 1133, 1136.) As the Ninth Circuit has explained, to adjudicate an as- 29 applied takings claim in the absenceofa rejected development application would require courts “to guess” what possible proposals a landowner might havefiled and how the government entity “might have respondedto those imaginary applications.” (Southern Pacific Transportation Co. v. City ofLos Angeles (9th Cir. 1990) 922 F.2d 498, 504,cert. den. (1991), 502 U.S. 943.) Plaintiffs here are doing just that: asking the Court to guess how the Commission might respond to their future application to amend their coastal development permit. Plaintiffs’ seawall is currently approved for a twenty-year period (i.e. until August 10, 2031). Special Condition 3 provides that prior to the end of that twenty-year period, Plaintiff shall submit an application for a permit amendment“to either remove the seawall in its entirety, change or reduceits size or configuration, or extend the length of time the seawallis authorized.” (AR 1682-83; see also AR 1711.) “Provided a complete application is received before the 20-year permit expiration, theexpiration date shall be automatically extendeduntil the time the Commission acts on the application.” (AR 1683.) The Commission’s durational permit condition “allow[s] for an appropriate reassessment of continued armoringandits effects at that time in light ofwhat may be differing circumstances than are present today,” but it simultaneously acknowledgesthe possibility that “physical circumstancesas well as local and/or statewide policies and priorities regarding shorelines armoring [will be] significantly unchanged from today.” (AR 1710.) Any consideration ofPlaintiffs’ takings claim before they have submitted and the Commission has responded to a permit amendment would be based on pure speculation, 30 - and it is “precisely this type of speculation that the ripeness doctrine is intended to avoid.” (Southern Pacific Tiransportation Co., supra, 922 F.2d at 504, citing Kinzii, supra, 818 F.2d at 1454.) If, in twenty years, the Commission does improperly reject Plaintiffs’ application for a permit amendment, Plaintiffs may challenge the Commission’s decision. Until that time, Plaintiffs’ takings claim is notripe. B. TheUnconstitutional Conditions Doctrine Does Not Apply to the Durational Permit Condition. Plaintiffs argue that the twenty-year authorization period is an unconstitutional condition becauseit requires them to surrendertheir constitutional right to protect their property. (Reply Br. at p. 24.) This argumentis incorrect for two reasons: (1) the Commission’s action does not require Plaintiffs to surrender a Constitutional right; and (2) the unconstitutional conditions doctrine does not encompassPlaintiffs’ claims. First, the right to the protection ofproperty in the California Constitution, which does not exist in the United States Constitution, “is not the equivalent of a vested right to protect property in a particular manner where the method chosenis one that is regulated by government... .” (Whaler’s Village Club v. California Coastal Commission (1985) 173 Cal.App.3d 240, 252-53, abrogated on other grounds by Nollan v. California Coastal Commission (1987) 483 U.S. 825.) Indeed, “[t]here is no constitutional right to own property free from regulation.” (id at 253 [holding that homeownerdid not have a fundamental right to protect her property by building a revetment].) ’ Though Whaler’s Village Club goes on to explain that a vested right canresult from prior governmental approval, the present case is distinguishable in that the authorization period here wasexpressly limited. 3] Plaintiffs have no Constitutional right to construct a seawall to protect their property. The Coastal Commission regulates the construction of seawalls, conditioning permits as necessary to mitigate their impacts. Moreover, the durational condition does not require Plaintiffs to stop protecting their property. The seawall is permitted for twenty years; thereafter the permit doesnot automatically disappear. (AR 1683.) Plaintiffs must | apply to amendtheir permit, whetherit is to extend the permit term, to removethe seawall, or to change or reduce the seawall’s size or configuration. (/bid.) If Plaintiffs submit a complete application to amend before the twenty-year period concludes, the Commissionwill automatically extend and maintain the seawall’s authorization until the time that it acts on the application. (/bid.) Any assumptions about the Commission’s ~ action on thatfuture application are purely speculative and any related claims are not ripe. Second, this Court issued an opinion earlier this summerthat left no question that | the unconstitutional conditions doctrine does not apply to the Commission’s twenty-year permit condition. California Building Industry Association v. City ofSan Jose (2015) 61 Cal.4th 435, 494 reaffirms that the unconstitutional conditions doctrine applies only where the government demands “the conveyance of someidentifiable property interest (a dedication of property or the payment of money)as a condition of approval.” This Court held that San Jose’s inclusionary zoning ordinance wasonly restriction on the use of property, not an exaction of a property interest. (/d. at 491-92.) As such, it was distinguishable from the permit conditions in Nollan v. California Coastal Commission (1987) 483 U.S. 825, Dolan v. City ofTigard (1994) 512 U.S. 374, and Koontz v. St. 32 John’s River Water ManagementDistrict (2013) 133 S.Ct. 2586, where the government conditioned permits on dedicationsof land to the public or payment of a monetary fee. Here too, the durational permit condition does not constitute an exaction. Rather than requiring Plaintiffs to “convey some identifiable property interest,” the condition merely restricts their use of their properties by stating that, in twenty years, they mustre- apply for a coastal development permit for the seawall.* Plaintiffs further contend that the permit condition here must satisfy the nexus and ~ “rough proportionality” standard. (Reply Br. at p. 26.) But the California Building Industry Association decision also foreclosed this argument: “[W]e have not extended the rough-proportionality test ofDolan beyondthe special context of exactions—land-use decisions conditioning approval of development onthe dedication ofproperty to public use.” California Building Industry Association, supra, 61 Cal.4th at 495, quoting. Monterey v. Del Monte Dunes at Monterey, Ltd. (1999) 526 U.S. 687, 702.) The | condition here is a restriction on the use ofproperty, not an exaction of a property interest or monetary payment. The rough proportionality standard does not apply. ® The Commission’s special condition, though recorded as a deedrestriction, is not an exaction akin to the purchase option at issue in Sterling Park v. City ofPalo Alto. It is not “a sufficiently strong interest in the property to require compensation if the government takes it in eminent domain.” (See California Building Industry Association, supra, 61 Cal.4th at 513, quoting Sterling Park, supra, 57 Cal.4th at 1207.) Rather, the condition is a classic land userestriction. 33 IV. Encinitas’ Local Coastal Program and Zoning Code Bar Reconstruction of Plaintiffs’ Stairway. Severe winter storms in 2010 caused the lowerportion of Plaintiffs? beach access stairway to collapse, after the City of Encinitas (“City”) had already issued a major use permit for a new seawall system. Asa result of the storm damage, Plaintiffs modified their application for a coastal development permit to strengthen and expand the seawall, without reapplying for City approval. The modified application also proposed reconstruction of the stairway, to replace the storm-damaged lowerportion. The court below upheld the Commission’s refusal to grant a permit for the stairway reconstruction, finding that it was inconsistent with the City’s local coastal program,including generalplan policies to prohibit new private beach access over the bluffs and to “phase out private access to the beach over the bluffs.” (Encinitas General Plan, Circulation Element, Policy 6.7.) The City’s general plan also prohibited the permitting ofprivate stairways. (Encinitas General Plan, Public Safety Element, Policy 1.6.) Plaintiffs argue these provisions do not apply to replacementstructures or storm damage. (Opening Br. at pp. 37-38; Reply Br. at pp. 27-28.) Amici agree that reconstruction of a private beach access stairway on the bluff adjoining plaintiffs’ property is inconsistent with the City’s local coastal program, including its general plan policies. An alternative basis for upholding the permit condition requiring Plaintiffs to remove the lower stairwayis that the stairway wasa legal non-conforming use under the City’s Zoning Code. Once it was destroyed, both public policy and the plain language of the City’s non-conforming use ordinance prohibit 34 reconstruction to provide continued private beach access. The purposeofthe ordinance is to accomplish the “eventual elimination ofnonconforming uses andstructural nonconformities,” including those made nonconformingbythe general plan and zoning. (Encinitas Mun. Code, § 30.76.010, subd. A.) Asthis Court has recognized, “[t]he policy of the law is for elimination of nonconforming uses, and generally there can be no resumption of a nonconforming use which has been relinquished.” (City ofLos Angeles v. Wolfe (1971) 6 Cal.3d 326, 337.) “*The object of such provision is the gradual elimination of the nonconforming use by obsolescence or destruction by fire or the elements, andit has been frequently upheld by the courts.’” (San Diego County v. McClurken (1951) 37 Cal.2d 683, 686, quoting Rehfeld v. City & County ofSan Francisco (1933) 218 Cal. 83, 84.) “Given the objective of zoning to eliminate nonconforming uses, courts throughout the country generally follow strict policy against their extension or enlargement.” (/d. at 687, fn. omitted.) The City’s coastalbluff overlay zone sets forth “developmentstandards” prohibiting all improvements within forty (sometimes twenty-five) feet of a bluff edge and any new private beach accessfacilities on the face of a coastal bluff. (Encinitas Mun. _ Code, §§ 30.34.020, subd. B.1. and 2.) As an exception to the general prohibition, existing legal structures on the face of a bluff “may remain unchanged,” and routine maintenanceis allowed. (/d. at § 30.34.020, subd. B.4.) Private beach accessfacilities violate both theuse and structural provisions ofthe development standards in the coastal bluff overlay zone; they are not permitted uses anywherein the zone, and they violate setback requirements from the bluff face. 35 Oncethe beach access stairway was substantially destroyed, the City’s nonconformities ordinance prevented issuanceofa building permit for a replacement structure, regardless ofwhether a coastal development permit was required. (Jd. at§. 30.76.070, subd. B.) In fact, the exemptions from coastal developmentpermitscited by plaintiffs do not apply to uses or structures that are inconsistent with the City’s zoning ordinance. Specifically, exemptions granted to disaster reconstruction do not apply to any projects subjectto the coastal bluff ordinance or projects that do not conform with the - City’s zoning and developmentstandards. (/d. at § 30.80.050.) The City’s nonconformities provisions are not in conflict with the disaster reconstruction provisions of the Coastal Act; they implementit. Nonconforming use ordinances are the primary method by which cities phase out developmentthat waslegal whenbuilt, but no longer complies with current plans and policies. (See Consolidated Rock Products Co. v. City ofLos Angeles (1962) 57 Cal.2d 515, 535 (“The adoption ofa comprehensive plan of community development looking toward the containment and eventual elimination ofnon-conforming uses. . . accords with recognized zoning objectives undersettled legal principles.”].) By requiring that disaster-destroyed replacementstructures comply with existing zoning requirements, the Coastal Act recognizes that coastal developmentstandards cannotbe frozen in time, any more than the natural processes they address. 36 CONCLUSION For the foregoing reasons, the American Planning Association and the American Planning Association California Chapter respectfully request that this Court findthat Plaintiffs waived their right to challenge the validity of the special conditions that the Commission imposed on their permit to construct a seawall in front of their coastal properties. In addition, amici urge the Court to hold that the Commission acted withinits authority in limiting the duration of Plaintiffs’ permit and in prohibiting them from reconstructing their private beach access stairway. Finally, this Court should reject Plaintiffs’ claim that their permit’s twenty-year authorization effected a taking of their properties. DATED: August 7, 2015 SHUTE, MIHALY & WEINBERGER LLP MK. FRAN M. LAYTON CATHERINE MALIN By: Attorneys for [Proposed] Amici Curiae American Planning Association and American Planning Asssociation California Chapter 37 _ CERTIFICATE OF WORD COUNT (California Rules of Court 8.504(d)(1)) I herebycertify that the text of this [Proposed] Brief of Amici Curiae consists of 9,799 words, not including tables of contents and authorities, signature block, and this certificate ofword count as counted by Microsoft Word, the computer program used to prepare this brief. DATED: August 7, 2015 SHUTE, MIHALY & WEINBERGER LLP FRAN M. LAYTON \ Attorneys for [Proposed] Amici Curiae American Planning Association and American Planning Asssociation California Chapter PROOF OF SERVICE Barbara Lynch and ThomasFrick vy. California Coastal Commission Case No. §221980 California Supreme Court At the timeofservice,I wasover 18 years of age and not a party to this action. I am employed in the City and County of San Francisco, State of California. My business address is 396 Hayes Street, San Francisco, CA 94102. On August 7, 2015, I served true copies of the following document(s) described as: APPLICATION FOR LEAVETO FILE AMICI CURIAE BRIEF IN SUPPORT OF DEFENDANT AND APPELLANT CALIFORNIA COASTAL COMMISSION AND [PROPOSED] BRIEF OF AMICI CURIAE AMERICAN PLANNING ASSOCIATION AND AMERICAN PLANNINGASSOCIATION CALIFORNIA CHAPTER on the parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL:I enclosed the document(s) in a sealed envelope or package addressed to the personsat the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readilyfamiliar with Shute, Mihaly & Weinberger LLP's practice for collecting and processing correspondencefor mailing. On the same day that the correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Executed on August 7, 2015, at San Francisco, California. SN. Sean P>Mufligan 7 SERVICE LIST Barbara Lynch and ThomasFrick v. California Coastal Commission Case No. 8221980 California Supreme Court Jonathan C. Corn Axelson & Corn, P.C. 160 Chesterfield Drive, Suite 201 CardiffBy The Sea, CA 92007 Telephone:(760) 944-9006 John M. Groen Pacific Legal Foundation 930 G Street Sacramento, CA 95814 Telephone: (916) 419-7111 Attorneys for Plaintiffs and Respondents Barbara Lynch and ThomasFrick | Clerk of the Court California Court ofAppeal _ 4th District Division 1 750 B Street, Suite 300 San Diego, CA 92101 Hayley Elizabeth Peterson Office of the Attorney General 600 West Broadway,Suite 1800 San Diego, CA 92101 Telephone: (619) 645-2540 Attorney for Defendant and Appellant California Coastal Commission Clerk of the Court San Diego Superior Court 325 South Melrose Dr. Vista, CA 92081
