LYNCH v. CALIFORNIA COASTAL COMMISSIONRespondents’ Opening Brief on the MeritsCal.March 11, 2015 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA No. 8221980 BARBARA LYNCH and THOMASFRICK, Petitioners, V. SUPREME COURT Pope CALIFORNIA COASTAL COMMISSION, r 4. i 2 Respondent. MAR 11 2015 After an Opinion by the Court ofAppeal, Fourth Appellate District, Division One (Case No. D064120) Deputy’ CRC Frank A. Metuire Clerk 8.25bj / On Appeal from the Superior Court of San Diego County ‘ : I}, (Case No. 37-201 1-00058666-CU-WM-NC, Honorable Earl MaasIII, Judge) PETITIONERS’ OPENING BRIEF JONATHANC. CORN, JAMES S. BURLING, No. 156983 No. 113013 Axelson & Com, P.C. JOHN M. GROEN,No. 131225 160 Chesterfield Drive JENNIFER F. THOMPSON, Suite 201 No. 280885 Cardiff by the Sea, CA 92007 Pacific Legal Foundation Telephone: (760) 944-9006 930 G Street Facsimile: (760) 454-1886. Sacramento, CA 95814 E-mail: joncorn@axelsoncom.com Telephone: (916) 419-7111 Facsimile: (916) 419-7747 E-mail: jsb@pacificlegal.org E-mail: jmg@pacificlegal.org E-mail: jft@pacificlegal.org Attorneysfor Petitioners Barbara Lynch and Thomas Frick TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......... 0... cece cee cence eens IV ISSUES PRESENTED IN PETITION .............. 00.00.00 0ce eee 1 INTRODUCTION ...... 00... cccectn enn 2 STATEMENT OF THECASE .......... 0.0... eens 4 A. General Factual Background ............ 0.0... c cee eee eee 4 B. The City Approves the New Seawall and Repair of the Stairway .......... 0... ce cece eee ee eens 5 C. The Commission Reviewsthe Permit Application ........... 6 D. The Commission Imposes the Unlawful Conditions .......... 9 E. Procedural Background ............. 00. ccc eee e eee 10 STANDARD OF REVIEW ...........0 02 cc cece eee ee nen enes 11 ARGUMENT..... 20.0...eectcence teenies 13 I. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S FINDING THAT THERE WAS NO WAIVER OF THE RIGHT OF JUDICIAL REVIEW ..................4. 13 A. There Was No Intent To Relinquish the Right to Judicial Review ........... 0.0... cece eee eee 13 B. The Deed Restriction Does Not Support the Commission’s Waiver Argument ..................0.. 14 1. The Severability Clause Expressly Provides for Invalidation of the Special Conditions .............. 14 2. Other Termsin the Deed Restriction Do NotEstablish Waiver ..............0-0-0 00 ee aces 16 Page a. The “Comply” Term Does Not Establish That These Homeowners Have Waived Their Legal Challenge .............. 16 b. The “Irrevocably Covenant” Terminology Does Not Preclude a Court from Finding the Conditions Are Invalid ...................... 19 C. The Case Law Fully Supports the Homeowners ............ 21 D. The Commission Has Always Known That the Homeowners Never Intended To Waive Their Right to Judicial Review ................. 24 I. THE CONDITION IMPOSINGA 20-YEAR PERMIT EXPIRATION IS UNLAWFUL.................... 25 A. The Permit Expiration Does Not Mitigate an Identified Adverse Impact and Therefore Violates the Coastal Act ...... 25 B. The 20-year Expiration Is Unconstitutional ................ 29 1. The Permit-expiration Must Be Roughly Proportional to the Adverse Impacts of the Seawall ...... 29 2. Because Future Impacts Are Unknown,and MayNot Even Exist, Permit Termination Cannot Be Shown To Be Roughly Proportional ............... 32 Il. THE COMMISSION’S STAIRWAY PROHIBITION IS UNLAWFUL................ 00-2 e ee eee 34 A. Because a “Disaster” Destroyed a Portion of the Homeowners’ Stairway,Its Reconstruction Does Not RequireaCDP ................. 34 B. Repair of the Stairway Is Not Precluded by Local Policies .............. 00... e eee ee. 35 _ii- Page 1. To the Extent Any Local Policy or Regulation Prohibits Repair of the Stairway, Such Policy or Regulation Is Invalid ............... 0.00 c eee eee 35 2. Repair of the Stairway Is Consistent with All Applicable Local Policies and Regulations ............. 37 CONCLUSION ........ 0.0.ccccece eee n en nes 4] CERTIFICATE OF COMPLIANCE........... 2.00 cece eee eens 43 DECLARATIONOF SERVICE BY MAIL - iil - TABLE OF AUTHORITIES Page Cases Barrett v. Dawson, 61 Cal App. 4th 1048 (1998) ................... 20 Bickel v. City ofPiedmont, 16 Cal. 4th 1040 (1997) .............. 11-13 California Coastal Commission v. Superior Court ofSan Diego County (Ham), 210 Cal. App. 3d 1488 (1989) ................0.0. 23 City ofUkiah v. Fones, 64 Cal. 2d 104 (1966) ................2.0.4. 13 County ofImperial v. McDougal, 19 Cal. 3d 505 (1977) .......... 22-23 Dolanv. City ofTigard, 512 U.S. 374 (1994) 2...eee 29-30 Hansen Brothers Enterprises, Inc. v. Board ofSupervisors ofNevada City, 12 Cal. 4th 533 (1996)... 0...2cee 31 HFH, Ltd. v. Superior Court, 15 Cal. 3d 508 (1975) ..............0.. 31 Jessup Farms v. Baldwin, 33 Cal. 3d 639 (1983) .......... 000 e eee 12 Koontz v. St. Johns River Water Management Dist., 133 S. Ct. 2586 (2013) ...... bene eee ence enna ee 1, 30 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) ..............0.. 30 McAllister v. California Coastal Commission, 169 Cal. App. 4th 912 (2008) 2.2...cceee 36 Nollan v. California Coastal Commission, 483 U.S. 825 (1987) 20...teens 1, 29-30 Ocean Harbor House Homeowners Association v. California Coastal Commission, 163 Cal. App. 4th 215 (2008) ............. 1, 26 Pfeiffer v. City ofLa Mesa, 69 Cal. App. 3d 74 (1977) ............... 21 -ivV- Rossco Holdings Incorporatedv. State, 212 Cal. App. 3d 642 (1989) 2...occeeee 23 Schneider v. California Coastal Commission, 140 Cal. App. 4th 1339 (2006) ...... 2... eeecee 12 Shelly v. Kraemer, 334 U.S. 1 (1948) 2.0.0... cee cee ees 20 Silvers v. Board ofEqualization, 188 Cal. App. 4th 1215 (2010) ....... 12 Sterling Park, L.P. v. City ofPalo Alto, 57 Cal. 4th 1193 (2013) ....... 18 Yost v. Thomas, 36 Cal. 3d 561 (1984) 2.0.0.0... . ccc ec eee 36 State Constitution Cal. Const. art. 1, § 1] 0...cceee ee ences 31 Statutes Cal. Civ. Proc. § 1094.5 2.0.ceeeee 2, 21-23 Pub. Res. Code § 30005(a) «0.2... ccc eee tees 35-36 § 30235 Loeeeee 1, 10, 25, 27-29, 31, 33, 41 § 30610(g) .. 0eeeeee eee 2, 34, 36, 38-40, 42 § 30801 20.cccteen eens 2, 23 Municipal Code Encinitas Municipal Code § 30.34.020 B.2 ............... 0.000008. 38 § 30.34.020 B.4 20.cecee eee nee 38 Miscellaneous Webster’s American Family Dictionary (1998) ................. 16, 39 ISSUES PRESENTEDIN PETITION 1. If a property ownerhassatisfied all the statutory requirements for challenging an unlawful permit condition, including exhausting administrative remediesandfiling a timely and valid challenge to the condition in court, has the owner thereby preserved herright to judicial review of that challenge? 2. The Coastal Act, as interpreted by the Sixth District Court ofAppeal in Ocean Harbor House Homeowners Association v. California Coastal Commission, 163 Cal. App. 4th 215, 242 (2008), mandates issuance of a permit for a protective device necessary to safeguard one’s property against erosion, subject only to conditions that mitigate identified impacts on public resourcesthat the structure causes. See Pub. Res. Code § 30235. In addition, the Federal unconstitutional-conditions doctrine requires thatpermit conditions burdening a property right or interest bear an “essential nexus” to—i.e., mitigate—identified impacts on public resources caused by the proposed use ofthe property (e.g., proposed protection of the property via installation of a protective device). See Koontz v. St. Johns River Water Management Dist., 133 S. Ct. 2586 (2013); Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987). Do the Coastal Act and the Federal unconstitutional-conditions doctrine therefore prohibit a permitting agency from imposing conditions that are designed, not to mitigate identified impacts of a protective device, but to expand regulatory authority for its own sake? -l- 3. Does a property owner’s statutory right to replace a structure destroyed by a disaster without a permit (Pub. Res. Code § 30610(g)) preempt local policies that purport to strip her of that nght? INTRODUCTION At the outset, this case concerns the right to judicial review of permitting decisions ofthe California Coastal Commission. The Petitioners, Barbara Lynch and ThomasFrick (the “Homeowners”), sought approval for a Coastal Development Permit (CDP) to replace an aging seawall that is necessary to protect their homes. The permit was ultimately granted, but with two conditions. One ofthe conditions provided that the seawall permit would expire in 20 years, and at that future time the Homeowners would need to apply for another approval, or remove the protective seawall. The second condition required that the Homeowners delete from the plans any re- construction of a shared stairway (the only route down the bluff from the homesto the beach), even though the stairway waspartially destroyed by heavy rains that caused collapse of an upperportion ofthe bluff. The Homeowners formally objected to the conditions in writing and orally at the hearing on their permit application. Having metthe requirements ofan aggrieved party under Public Resources Code § 30801, the Homeowners pursued their right to judicial review by timely filing a petition for writ of mandate in accordance with Section 1094.5 of the Code of Civil Procedure. Despite following all legal requirements, and exhausting all administrative remedies, the Court of Appeal ruled that the Homeowners waivedtheir right to judicial review by complying with the Commission’s additional requirement that the Homeowners record an irrevocable “deed restriction.” By recording the deedrestriction, potential future purchasers of property are informed of the Commission’s decision and its conditions. Thetrial court found there was no waiverofthe right to challenge the conditions because the Homeowners “neither specifically agreed to the conditions nor failed to challenge their validity.” Joint Appendix (JA) 101 (minute order, 12/21/2012). The Court of Appeal reversed, over a dissent, holding that unless the Homeowners refuse to comply with the conditions, including refusing to sign the deedrestriction, they cannot proceed to seek judicial review. Howeverthe facts and the case law do not support the Court ofAppeal’s conclusion. For reasonsset forth below, andasruled bythetrial court and supported bythe dissent below, this Court should concludethere has been no waiverofthe right to judicial review. Accordingly, the Court should then proceedto the merits ofthe lawfulness ofthe two conditions, as presented in Issues 2 and 3 set forth above. STATEMENT OF THE CASE. A. General Factual Background The Homeownersare neighbors, each owning an adjacent residential parcel located atop an 80-foot oceanfront bluff in Encinitas, California. Administrative Record (AR) 61. The properties consist ofthree distinct areas, specifically, (1) the blufftop area which is developed with their respective homes, (2) the steep coastal bluff that for over 40 years has been improved with a shared stairway downto the beach, and (3) the sandy beach area from the toe ofthe bluffto the mean high-tide line. AR 1660. The shared stairway connects the homesto the beach area below. The stairs were built prior to enactment of the Coastal Zone Conservation Act of 1972. AR 380, 2328. In 1973, the stairway partially collapsed and wasreconstructed under a permit issued by County of San Diego. AR 380-84. The stairs have been regularly used and maintained and provide the only direct access to the beach portion of the property. JA 201. HomeownerBarbara Lynchis now over80 years old and cannotphysically go to the nearest public access stairway half mile away and walk to her own property. AR 2275. Without the stairs, beach access to the Homeownersis effectively denied. AR 2329. Since 1986, the properties have been protected by a 100-foot wide beach-level seawall, consisting of wood poles embedded in the sand and cabled to the bluff. The properties were further protected by a mid-bluffwall consisting ofrailroad ties and supporting timberpoles and securedto the bluff to retain the earth material from sloughing off. In an after-the-fact permitting application, the Commission in 1989 determinedthat the seawall system and stairway were consistent with the Coastal Act and issued a CDP authorizing their continued use. That permit had no expiration date. AR 2-22, 1690. B. The City Approves the New Seawall and Repairof the Stairway In 2003, the Homeownersapplied to the City ofEncinitas to replace the aging woodenseawall with a state-of-the-art, textured concrete seawall system that includedstructural tiebacks and mid-bluffgeogrid protection. AR 38-39, 870. In order to build the seawall, the lower portion of the stairway would have to be temporarily removed. After considerable delays, the City in 2009 ultimately voted unanimously to approve the application. The City found the project was consistent with its Local Coastal Program (LCP) as well as the policies ofits General Plan and Municipal Code. AR 1844. Asto the stairway, the City’s Resolution states: A stairway currently exists on the bluff face and will remain. However,portions ofthe stairwell most adjacent to the existing mid-bluff retaining wall and lower seawall will be removed as necessary to allow for the installation of the proposed improvements and will be replacedto its original configuration with the same materials, dimensions, and colors once the construction of the shotcrete walls are completed. AR 1849 (emphasis added). C. The Commission Reviews the Permit Application After securing approval from the City of Encinitas, the Homeowners’ project still could not be built. The application was technically an amendment to the 1989 seawall permit issued by the Commission, and therefore the Homeowners also needed Commission approval.’ Unfortunately, while the application was pending before the Commission, a series of strong winter storms hit Southern California, depositing significant rainfall and causing major property damage along the coast. AR 2347-48. President Obama declared San Diego County an emergencydisasterrelief area. JA at 130-32. On December 24, 2010, in the immediate aftermath of heavy rainfall, the Homeowners’ bluff suffered a significant collapse in the area above and through the mid-bluffprotection system. AR 1579, 2255 (photos). The result wasto destroy muchofthe existing mid-bluffprotection and the lowerportion of the stairway. AR 408-09, 421-31, 1690. ' The City of Encinitashasa certified LCP andthe project is within the City’s permit jurisdiction. However, because the project is an amendmentto a previously approved CDPissuedbythe Commission, the Commissionalso has jurisdiction over the project and in its review applies the certified Encinitas LCP and the public access and recreation policies ofChapter 3 of the Coastal Act. AR 1680. After several delays and twoprior staff reports, the Commission staff publishedits third and final staff report on July 11, 2011. Staff Report No.3 discussed the adverse impacts of seawalls as generally being (1) physical occupation ofbeacharea, (2) long-term beachloss, and (3) entrapmentofbluff sand. AR 1702. With regard to the specific adverse impacts of the Homeowners’ project, the Commission found that general impacts (1) and (2) were not present because the new seawall “expos[es] approximately 425 sq. ft. ofadditional beach area.” AR 1715. Additional beach area would open up becausethe existing seawall was located inland ofthe mean high-tide line (on the Homeowners’private property) and the new seawall wouldbe located even further inland. The Commission explained the importance of this fact as follows: In cases wherethe seawall is located on the public beach, appropriate mitigation could be installation of public access/recreational improvements and/orcreation of additional public beachareain close proximity to the impacted beacharea. However,in this particular case, the proposed seawall will not be located directly on public beach, but rather will be located upland of the mean high tide. In fact, the proposed project places the seawall as far as approximately eight ft. landwardofthe originally approved seawall, which creates the potential for additional beach to becomeavailable to the public and is a significant reason for approving the proposed 100 ft. wall that includes protecting 1520 Neptune Avenue,rather than only approving the smaller 50 linear ft. portion below 1500 Neptune Avenue. AR 1715. This is in contrast with most seawall applications in that area. As acknowledged by the Commission, “Unlike the subject application request, most if not all of the seawall applications approved by the Commission in Encinitas and nearby Solana Beach have been located on the public beach, seaward of the mean high tide line.” AR 1714 (emphasis added). Accordingly, there is no identified adverse impact on public access or recreational uses resulting from the Homeowners’ project. According to the Commission’s Technical Services Division, the seawall will not directly impede the public access or recreational uses typically considered by the Commission over its 20 year authorization period becausethere will be no direct encroachmentof the proposed development onto public beach area. AR 1715-16. The general impact of sand loss resulting from seawalls is addressed through a sand loss mitigation fee which the Homeownersdo notchallenge. Similarly, any adverse visual impacts of the seawall are also mitigated, especially as comparedto the old seawall. As explained by the Commission: One of the principal reasons for approving the entire 100 ft. seawall is the improved visual character of the wall.... To mitigate the visual impacts of the proposed seawall, the applicants propose to color and texture the seawall. The visual treatment proposed is similar to visual treatment approved by the Commission in recent years .... Today, seawalls typically involve sculpted and colored concrete that upon completion more closely mimic the natural surface of the lowerbluffface. AR 1721. As the Commission admits, the state-of-the-art seawall “has been designed and conditioned to mitigate its impact on coastal resources such as scenic quality, geologic concerns, and shoreline sand supply.” AR 1679 (see also Dissenting slip op. at 15). D. The Commission Imposes the Unlawful Conditions Despite these findings and mitigation measures, the Commission approved the seawall project with Special Conditions 2 and 3 which require that the permit expire in 20 years. AR 1682-83. The basis for the condition was explainedin the staff report: To ensure that this project does not prejudice future shoreline planning options, including with respect to changing and uncertain circumstances that may ultimately change policy and other coastal development decisions (including not only climate change and sea level rise, but also due to legislative change, judicial determinations, etc.), staff recommendsthat this approval be conditioned for a twenty-yearperiod. AR 1709-10 (emphasis added). In short, the Commission is asserting broad power to apply future policy changes that are unknownand uncertain. Thetrial court rejected the expiration condition, insightfully acknowledging that “the 20 year limit is simply a power grab designed to obtain further concessions in 20 years, or force the removal of seawalls at a later time.” JA 204. The Homeowners contend that this condition does not mitigate an identified adverse impact and therefore is unlawful under the Coastal Act, specifically Public Resource Code § 30235, as well as the Federal unconstitutional-conditions doctrine. While the Commission admittedly has significant power to impose conditions to mitigate actual and identified adverse impacts, requiring the expiration of permits so that it can start the process anew, and apply unknownand different policies to a then-existing seawall is a startling—and unlawful—extension ofpower. The Commission also adopted Special Condition 1.a., which required the Homeownersto delete from the final plans any repair ofthe lower portion of the stairway. AR 1681. Despite approval of the stairway by the City of Encinitas, the Commission applied the Encinitas policies and regulations differently, thereby rejecting the proposal to repair the stairway. Thisleft the Homeownerswith a partial stairway downthe bluff, dangling at the midpoint. AR 1579 (photo). E. Procedural Background The Homeownerstimely filed a petition for writ of mandate on October 7, 2011. JA 2. The petition challenges the lawfulness ofthe 20-year permit expiration (Special Conditions 2 and 3) and the denial of the stairway repair (Special Condition 1.a.). No other challenges to the Commission’s decision were alleged. JA 4-5. -10- As required by Special Condition 17, the Homeownersrecordedtheir respective identical deed restrictions on September 30, 2011 (JA 45), and November 23, 2011 (JA 24). Shortly thereafter, on December6, 2011, the Commission confirmed that the requirements for issuance of the permit had been completed and provided its Notice ofAcceptanceso thatthe final permit could issue and the seawall could be constructed. JA 65. The Commission filed its Answer approximately six months later, June 6, 2012, and asserted typical affirmative defenses, but did notallege that the deed restrictions were a waiver ofthe right to judicial review. JA 8-9. Eventually, on October 20, 2012, the Commissionfiled its motion contending that the deed restriction and construction of the seawall by the Homeowners resulted in a waiverofthe right to judicial review ofthe two challenged permit conditions. Thetrial court rejected the Commission’s motion and foundthat the Homeowners had not waivedtheir right to review. On the merits, the trial court ruled in favor ofthe Homeownersand invalidated both conditions. Ina split decision, the Court of Appeal reversed and this Court subsequently granted the Petition for Review. STANDARD OF REVIEW The first question presented is whether the Homeowners waivedtheir right to judicial review. This Court reviews“the trial court’s finding ofwaiver under the deferential ‘substantial evidence’ standard.” Bickel v. City of -ll- Piedmont, 16 Cal. 4th 1040, 1053 (1997). As stated by this Court: ““We must therefore view the evidencein the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolvingall conflicts in its favor in accordance with the standard of review so long adhered to by this court.” Jd. (quoting Jessup Farms v. Baldwin, 33 Cal. 3d 639, 660 (1983)). With respect to the lawfulness of the conditions themselves, there are no disputed facts. Accordingly,the legality ofthe conditions present questions of law that are reviewed de novo. “[T]he application of . . . statutory provisions to undisputed facts” triggers de novo review; deference to the Commissionis inappropriate. Silvers v. Board ofEqualization, 188 Cal. App. 4th 1215, 1219 (2010). “A court doesnot, in other words, defer to an agency’s view when deciding whethera regulation lies within the scope ofthe authority delegated by the Legislature.” Schneider v. California Coastal Commission, 140 Cal. App. 4th 1339, 1344 (2006). -12- ARGUMENT I SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT'S FINDING THAT THERE WAS NO WAIVER OF THE RIGHT OF JUDICIAL REVIEW A. There Was NoIntent To Relinquish the Right to Judicial Review It is well established that waiveris the intentional relinquishment of a knownright. Bickel, 16 Cal. 4th at 1048. “To constitute a waiver, there must be an existing right, knowledge of the right, and an actual intention to relinquish the right.” Jd. at 1053. “Waiver alwaysrests upon intent.” City of Ukiah v. Fones, 64 Cal. 2d 104, 107 (1966). Becausewaiverrests uponintent,it is necessarily a factual question for determination by thetrial court. Bickel, 16 Cal. 4th at 1052. Here, thetrial court correctly found there was no waiverofthe right to judicial review ofthe permit conditions. As ruled by the trial court, the Homeowners “neither specifically agreed to the conditionsnorfailed to challenge theirvalidity.” JA 101 (minute order, 12/21/2012). Substantial evidence supportsthe trial court’s finding. In sharp contrast to the cases relied upon by the Commission in the lower court, the Homeownershere properly and timely filed their petition for writ ofmandate. Rather than ignoring or waiving their right tojudicial review, the Homeowners -13- affirmatively exercised that right! This is not a situation where the Homeownersare seekingto collaterally challenge the conditions because they failed to properlyfile a petition for writ ofmandate. Rather, the Homeowners have opposedthese two specific conditions from the outset, objected at the hearing andin writing, and pursued their legal remedy in the mannerrequired by the law. These actions provide ample basis for thetrial court to conclude there was no intent by the Homeownersto relinquish their right to judicial review. B. The Deed Restriction Does Not Support the Commission’s Waiver Argument 1. The Severability Clause Expressly Provides for Invalidation of the Special Conditions The Commission relies on the deed restriction to contend that the Homeownerswaivedtheir right to challenge the conditions. A careful reading of the deedrestriction reveals no such intent. The deedrestriction is located in the record at JA 24-26. Significantly, Paragraph V expressly incorporates the Special Conditions as part of the deed restriction. The languagestates: WHEREAS... the Commission conditionally approved coastal development permit number6-88-464-A2 ... subject to, among other conditions, the conditions listed under the heading “Special Conditions” in the Notice of Intent To Issue Permit dated August 31, 2011, attached hereto as EXHIBIT B and incorporated herein by reference (hereafter referred to as the “Special Conditions)... . -14- JA 24-25 (emphasis added). Having incorporated the Special Conditions as part of the deed restriction, the document then expressly acknowledges that “any provision” maybe held to be invalid. The concluding paragraph ofthe deedrestriction states: If any provision of these restrictions is held to be invalid, or for any reason becomes unenforceable,no otherprovision shall be affected or impaired. JA 26 (emphasis added). This language can only mean onething. A provision is “held to be invalid” by a court. This language is an express acknowledgmentthat “any provision”included in the Special Conditions may be “held to be invalid.” Of course, the only waythat a court may hold any of the Special Conditions invalid is through a timely filed petition for writ of mandate. That is exactly what the Homeownersfiled and were pursuing. Contrary to the argument advanced below by the Commission, the express languageofthe deedrestriction does not support waiver by the Homeowners ofthe righttojudicial review;rather, the terms ofthe deedrestriction confirm that the petition for writ ofmandate mayresult in a judicial ruling that Special Conditions 1.a., and 2 and 3 are invalid and unenforceable. Because of the severability clause, the other unchallenged conditions will remain intact. In short, the recording ofthe deedrestrictionis fully consistent with the Homeowners’ exercise oftheir right ofjudicial review. The express language -15- acknowledges and provides for the very remedy that the Homeownersseek in their lawsuit, namely, invalidation of Special Conditions 1.a. and 2 and 3. 2. Other Termsin the Deed Restriction Do Not Establish Waiver a. The “Comply” Term Does Not Establish That These Homeowners Have Waived Their Legal Challenge In considering the deed restriction, the Commission has focused on Paragraph VII. That paragraph includes the following: “WHEREAS, Owner(s) has/ve elected to comply with the Special Conditions ....” JA 25. But this language does not overcome the express language of the severability clause. Certainly, the Homeowners “complied” with various conditions that needed to besatisfied in order to get their final permit and complete the seawall. But complying with the conditionsis not the same thing as agreeing with the conditions. The term “comply” simply meansto obey. Asdefined in Webster’s American Family Dictionary (1998), comply means to “act or be in accordancewith wishes, requests, demands, requirements or conditions.” For example, a person might comply with a court order, but not agree withit. The Commission’s argument not only is contrary to the ordinary dictionary definition, but it creates a direct conflict with the express language ofthe severability clause. Ifthe term “comply”is interpreted to meanthat the Homeowners agree with the lawfulness of the conditions, and thereby waive -16- the right to challenge the conditions, there is no point in even having a severability clause because any judicial review would already be waived. Of course, rather than render the severability clause as surplusage, the trial court wascorrect to find that the deed restriction did not support a finding of intent to waivejudicial review. Rather, the Homeowners simply obeyed, satisfied or acted in accordance with the Commission’s requirements while also maintaining their legal challenge, just as the severability clause expressly contemplates. Homeowners recognizethat there maybe otherfactual situations where the nature ofthe conditions rendersit impractical to both “comply”andlegally challenge the condition at the same time. But that is not the case here. Indeed, the condition calling for the expiration of the permit in 20 years is not something that at the present time the Homeowners can even “comply” with. If there is to be any compliance by the Homeowners,it is in 20 years when they would be required to apply for another Commission approval. But now, there is nothing for the Homeowners to do. The type of condition being challenged here presents a legal issue that does not involve any difficulty with respect to the judicial remedy, especially in light of the severability clause. Although within the context of the Mitigation Fee Act, this Court recognized that the nature ofthe condition can be relevantto the efficiency of a judicial remedy. -17- By the nature of things, some conditions a local entity might impose on a developer,like a limitation on the numberofunits, cannot be challenged while the project is being built. Obviously, one cannot build a project now andlitigate later how many units the project can contain—orhowlarge each unit can be, or the validity of other use restrictions a local entity might impose. But the validity ofmonetary exactions, or requirements that the developerlater set aside a certain numberofunits to be sold below market value, can be litigated while the project is being built. Sterling Park, L.P. v. City ofPalo Alto, 57 Cal. 4th 1193,1206-07 (2013). Unlike factual situations acknowledged in Sterling Park where satisfying the condition might render a court remedy problematic, or even moot, there is no such problem here. This is a condition that can be “held to be invalid” as expressly provided for by the severability clause. If this Court rules that the 20-year expiration is unlawful, that condition is simply invalidated. It is then a ministerial task to record a documentagainst the property and thereby informpotential purchasers ofthe results ofthe litigation. Such a document for recording would also likely reference the severability clause and attach the final decision as an exhibit. Future buyers will have a complete notification ofthe proceedings andthe legal status ofthe conditions. Nor does the stairway present a problem for a remedy. The Commission denied the proposal to repair the lower portion of the stairway. As will be discussed further below, this presents a legal dispute that once resolved by the Court, is easy to implement. If this Court rules in favor ofthe Homeowners,the stairway can be lawfully repaired. Ifthis Court rules against -18- the Homeowners, there simply will have to be no stairway to the beach. Instead, the existing stairway will need to be left dangling.’ | In short, the language in the deed restriction stating that the Homeowners would comply with the conditions does not meanthey agreed to the conditions, or waivedtheir right to challenge the conditions. Neither does the deed restriction in any way create a remedy problem,or otherwise impinge on the ability ofthe Court to rule on the merits. The trial court’s finding that the Homeowners did not intend to waive their legal challenge is not contradicted by the deedrestriction. b. The “Irrevocably Covenant” Terminology Does Not Preclude a Court from Finding the Conditions Are Invalid The Commission also suggests that because the deedrestriction is an “irrevocable covenant” (JA 25, line 14), the recording of the document must be a waiver by the Homeowners. Again, the Commission seeks to read much more into the language than is warranted. Admittedly, this language precludes the Homeowners from unilaterally revoking the deedrestriction. Ofcourse, that is not what the Homeownersare doing. Rather, they seek to have the Court declare that certain conditions are unlawful. The fact that the covenantis not revocable by the Homeowners does * Althoughnotofrecord,after the trial court issued the writ striking the three special conditions, and the Commission did not seek a stay, the Homeowners repaired the stairway. -19- not, and cannot, bind a court from finding that the Special Conditions are unlawful. To accept the Commission’s argument would mean that unlawful covenants, conditions, andrestrictions (i.e., “CC&Rs”) could not be struck down by a court. Of course,it is well established that unlawful CC&Rscan be held to be invalid by the courts. Perhaps the most well knowncaseis Shelly v. Kraemer, 334 U.S. 1 (1948), where the Supreme Court struck down CC&Rs that included racial restrictions on who could buy property within the neighborhood. California courts have likewise struck down unlawful CC&Rs. See, e.g., Barrett v. Dawson, 61 Cal. App. 4th 1048, 1051-52 (1998). While the Homeowners cannot revoke the covenant themselves, this Court is not thereby deprived of power to invalidate unlawful conditions. Likewise, nothing aboutthe “irrevocable covenant” language amountsto a waiverby the Homeownersfrom seeking theirjudicial remedy. Again, that is precisely what the severability clause anticipates. In summary, the deed restriction falls far short of meeting the Commission’s burden to show by clear and convincing evidence that the Homeowners waivedtheirright tojudicial review. Rather, the mostpersuasive and direct language is the severability clause which confirms that the deed restriction is not intended to cause a waiverofthe right of review. -20 - C. The Case Law Fully Supports the Homeowners Several California cases have addressed the waiverissue in the land use context. However, not single case finds waiverofthe right tojudicial review whena timely petition for writ ofmandate wasfiled. A leading decision is Pfeiffer v. City ofLa Mesa, 69 Cal. App. 3d 74 (1977). The property owner obtained a building permit conditioned on granting the city an easementacross the property and building a storm drain. The property ownerdid not challenge the conditions through a petition for writ ofmandate. Instead the property ownergranted the easement, constructed the storm drain, and completed the project, and then afterward suedthecity in inverse condemnation seeking to recover damages for the costs of the conditions. Not surprisingly, the court held that the property owner had waivedthe right to challenge the conditions by failing to timely file a petition for writ of mandate. The Court of Appeal concluded: If the conditions imposed by the city in their permit were invalid, Code of Civil Procedure section 1094.5 provided plaintiffs with the right and procedures to eliminate them. By declining to avail themselves of those procedures, plaintiffs cannot convert that right into a cause of action in inverse condemnation. Id. at 78. Of course, the Homeowners here did not make that mistake. They timely challenged the validity ofthe conditionsby filing their petition for writ ofmandate. Nor do they seek damages through inverse condemnation or any -21- other cause ofaction. Rather, they seek only invalidation ofthe conditions as providedby section 1094.5 and contemplated by the severability clause ofthe deedrestriction. Accordingly, Pfeiffer strongly supports the Homeownersby confirming they followed the correct procedure to avoid waiverofthe right to challenge the conditions. Further support is found in County ofImperial v. McDougal, 19 Cal. 3d 505 (1977). There, this Court considered a challenge to a conditional use permit authorizing sales of well-water within the geographical boundaries of the county. /d. at 507. The original owner, Simpson, did not challenge the condition and he limited sales of the well-water to small quantities for local use within the county. Jd. Five years later, the property was sold to McDougal and the new ownerbegan selling water for use outside the county. Jd. This Court ruled as follows: It is equally clear, however, that McDougalis subject to the limitations in the permit under which he claims, and that he can assert no greater rights therein than Simpson enjoyed. Simpson, byfailing to challenge the limitations imposedupon him bythe permit, waivedhis right to object to the condition prohibiting the sale ofwater for use outside the county. Id. at 510 (emphasis added). A numberof cases have held that a landowneror his successor in title is barred from challenging a condition imposed upon the granting of a special permit if he has acquiesced therein by either specifically agreeing to the condition or failing to challengeits validity, and accepted the benefits afforded the permit. -22- Id. at 510-11 (emphasis added). Again, as ruled by thetrial court, the Homeownershere did not “specifically agree” to the conditions, nor did they fail to challenge the conditions. Under McDougal, there has been no waiver of rights by the Homeowners. The same defect was again present in California Coastal Commission v. Superior Court ofSan Diego County (Ham), 210 Cal. App. 3d 1488 (1989). The Commission approved the rebuilding of a beach front residence on the condition that the owner, Ham, dedicate an easement for public access. The owner dedicated the easement and completed the project. Jd. at 1492. However, “Ham never sought mandaterelief.” /d. at 1499. Three yearslater, Ham sought damages through inverse condemnation, but the failure to previously challenge the condition through a timely petition for writ of mandate was again fatal. The Court ruled that an “administrative mandate proceeding provides the proper vehicle for such a challenge.” Jd. at 1496. See also Rossco Holdings Incorporated v. State, 212 Cal. App. 3d 642, 654, 656 (1989) (following Pfeiffer and McDougal and noting that the owner “never petitioned for an administrative writ ofmandate as required by section 30801 and Code of Civil Procedure section 1094.5”). Thestark contrast between these cases and the procedure followed here by the Homeowners again supportsthetrial court’s finding that there has been no waiverofthe right to challenge the conditions. The Homeowners’ timely -23- filing of their petition for writ of mandate places them squarely: within California law. D. The Commission Has Always Known That the Homeowners Never Intended To Waive Their Right to Judicial Review The decision below by the Court of Appeal attempts to cast the Homeowners in bad light, three times asserting that they engaged in “deliberate subterfuge.” Slip op. at 9. But the facts do not support such characterizations. The Commission cannot seriously argue that it was unaware of the Homeowners’ challenge to the conditions whenit issued the final permit and allowed the seawall to be constructed. The timing of the events reveals there was no subterfuge at all. The petition for writ of mandate was filed on October7, 2011. Significantly, Barbara Lynch’s deedrestriction was recorded after the lawsuit wasinitiated. JA 24 (deed restriction recorded November23, 2011). The Commission then confirmedthat the requirements for issuance of the permit had been completed and provided its Notice of Acceptance on December6, 2011, so that the final permit could issue and the seawall could be constructed. JA 65. The Commission allowed the permit to go forward with full knowledge of the pre-existing legal challenge to the conditions. In summary, the trial court finding that the Homeowners “neither specifically agreed to the conditionsnorfailed to challenge their validity” (JA 24 - 101) is fully supported by the factual record and the case law. Moreover, the severability clause ofthe deed restriction confirmsthat its recording does not demonstrate intent to waive judicial review, but rather, demonstrates that judicial review was contemplated and provided for in the event that a court finds any condition to be invalid. This Court is therefore urged to conclude there has been no waiverof the right to judicial review and proceed to the merits of the challenge to the conditions. II THE CONDITION IMPOSINGA 20-YEAR PERMIT EXPIRATION IS UNLAWFUL A. The Permit Expiration Does Not Mitigate an Identified Adverse Impact and Therefore Violates the Coastal Act The Coastal Act recognizes the importance of being able to protect existing structures from erosion. Accordingly, seawalls to protect structures are required to be permitted. This commandis balanced by the further requirement that such seawalls be designed to mitigate adverse impacts. Accordingly, the Act provides that a seawall “shall be permitted when required . . . to protect existing structures . . . in danger from erosion and when designed to eliminate or mitigate adverse impacts on the local shoreline sand supply.” Pub. Res. Code § 30235 (emphasis added). Homeowners acknowledge that the Commission has broad discretion to attach conditions to seawall permits, however, even that broaddiscretion is -25- limited bythe statute. Specifically, conditions mustmitigate identified adverse impacts of the proposed seawall. As stated in Ocean Harbor House Homeowners Association, 163 Cal. App. 4th at 242, “the Commission has broad discretion to adopt measures designedto mitigate all significant impacts that the construction of a seawall may have.” The legal problem with the 20-year expiration is thatit is not imposed to mitigate any adverse impact caused by the Homeowners’ proposed seawall. Indeed, the adverse impacts have all been addressed by other conditions. As conceded by the Commission, the seawall “has been designed and conditioned to mitigate its impact on coastal resources such as scenic quality, geologic concerns, and shoreline sand supply.” AR 1679. In contrast, the 20-ear expiration is not because of the design of the seawall, or due to any impacts attributable to the seawall itself. Rather, the expiration is to allow the Commission in the future to respond to unknown circumstances and changesin legislative policy. To ensurethat this project does not prejudice future shoreline planning options, including with respect to changing and uncertain circumstances that may ultimately changepolicy and other coastal development decisions (including not only climate change and sea level rise, but also due to legislative change, judicial determinations,etc.), staff recommendsthat this approval be conditioned for a twenty-year period. - 26 - AR 1709-10 (emphasis added). Of course, such unknown circumstances or policy changesare notattributable to the Homeownersor the design of their seawall. As stated by the dissent below: Unlike the mitigation fee in Ocean Harbor House, the permit- expiration condition in this case is not a mitigation condition. The permit expiration does not mitigate any impacts the seawall may causein the future. Rather, it merely gives the Commission the option to deny the permit outright in 20 years. Dissenting slip op. at 14. The Commission will respond that there may be unknown impacts of the seawall in the future, and that the permit-expiration gives the opportunity to respond to those impacts. The Commissionwill surely cite to places in the record discussing potential future concerns, and that the science in understanding the impacts ofseawalls may advance,or similarrationalizations. However, such speculation about unknownfuture impacts does not justify a present requirement that the permit will terminate. The expiration of the permit does not address any impact, present or future. If there are future impacts, those will be addressed by somedifferent condition. But expiration of the permit itself does nothing. By terminating the permit in 20 years, the mandatory language of section 30235 is directly violated. Under the statute, seawalls to protect existing homes“shall be permitted.” But for these Homeowners,their project is actually not permitted. Rather, their project is being allowed temporarily, -27- and the Commissionis holding powerto deny the seawall in the future. While it would take a legislative changeto section 30235 to outright deny the seawall in the future, it is such potential legislative change that the permit-expiration seeks to take advantage of. But meanwhile, the seawall is not permitted as that term is normally understood, it is merely authorized for 20 years. Such a condition is directly contrary to the mandatory language of section 30235. The Homeowners are expected to expend up to a million dollars building a seawall (AR 730) that has only temporary approval. They have no assurance that the seawall will be able to remain. By analogy,if California local governments started placing expiration dates on building permits for houses, the uproar would be deafening. Indeed, introducing a temporary nature to permitting would destroy the housing industry because no lenderwill loan money on a 30-year mortgagefor a house that has a permit for only 10 or 20 years. If the Commission has legitimate concerns about unknown future impacts of seawalls, it may address those concerns in the future. But conditioning the seawall today on the expiration ofthe permit is reaching too far and is contrary to the mandatory languageofthe statute. As explained by the dissent below: This does not mean the City or Commission cannot review the effects of the seawall in the future. The 20-year seawall expiration is unnecessary because, with or without a permit expiration, both the City and the Commission have powerto evaluate the seawall’s condition at any time, and to address any - 28 - actual or potential threat to life or property that the seawall may posein the future. Asthetrial court observed, the City and the Commission have the powerto force repair or change should the seawall become unsafe, or in need of repair or change. There are many other avenuesby which the government may proceed, such as code enforcement or inverse condemnation. The Commission always has the power to implement reasonable regulationsrelated to the seawall so long as they do not conflict with the Act. Dissenting slip op. at 15-16. In short, the 20-year approval is not a mitigation of any present, identified adverse impact ofthe seawall. Rather, it is imposed to accommodate unknown and uncertain future policy changes. Moreover, the expiration condition is contrary to the mandatory language ofthe Act that seawalls “shall be permitted” to protect existing homes. The permit expiration is contrary to Public Resources Code § 30235 and should be invalidated as a matter of law. B. The 20-year Expiration Is Unconstitutional Evenif the condition terminating the permit is not barred by Public Resources Code § 30235, the condition violates the Federal unconstitutional- conditions doctrine. 1. The Permit-expiration Must Be Roughly Proportional to the Adverse Impacts of the Seawall In the land use context, the protection afforded by the unconstitutional- conditions doctrine has been significantly clarified by the United States Supreme Court. The doctrine was applied in the seminal cases Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of -29 - Tigard, 512 U.S. 374 (1994). More recently, substantial clarification was provided in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), and-Koontz v. St. Johns River Water ManagementDistrict, 133 S. Ct. 2586 (2013). The Supreme Court has recognized that these decisions “provide important protection against the misuse ofthe power ofland-use regulation.” /d. at 2591. The Court recognized the reality that “land-use applicants are especially vulnerable to the type ofcoercionthat the unconstitutional conditions doctrine prohibits.” Jd. at 2594. Underthis doctrine, government may notuse the permitting authority to coerce applicants to give up constitutional rights in order to secure a permit. [T]he government may not require a person to give up a constitutional right—herethe right to receivejust compensation when property is taken for a public use—in exchangefor a discretionary benefit conferred by government. Lingle, 544 U.S. at 547 (quoting Dolan, 512 U.S. at 385). Accordingly, when governmentconditions its permit-approval on an exaction of some form of protected property interest, the exaction must bear an “essential nexus” to mitigating an adverse impactofthe proposed project. Nollan, 483 U.S.at 837. In addition, themitigating exaction must be “roughly proportional. . . both in nature and extent to the impact of the proposed development.” Dolan, 512 US. at. 391. See generally Lingle, 544 U.S. at 546-47, and Koontz, 133 S. Ct. at 2595(setting forth analysis underthe unconstitutional-conditions doctrine). -30- Here, the Homeowners’ clearly have a right to protect their property. The California Constitution guarantees—as “inalienable’—the rights of “acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. art. I, § 1 (emphasis added). The right to protect private property is recognized in the Coastal Act and is why applications for seawalls to protect property from erosion “shall be permitted.” Pub. Res. Code § 30235. Consistent with this fundamental right, California law also recognizes that when a use of property is established and permitted under existing law, future changesin the law cannotrenderthe existing use illegal. Changesin the zoning, for example, may cause an existing use to become nonconforming,but the use remains legal and protected. HFH, Ltd. v. Superior Court, 15 Cal. 3d 508, 516 (1975) (right to continued use despite downzoning). As this Court recognized in Hansen Brothers Enterprises, Inc. v. Board ofSupervisors of NevadaCity, 12 Cal. 4th 533, 552 (1996), “The rights ofusers ofproperty, as those rights existed at the time ofthe adoption ofa zoning ordinance,are well recognized and have always beenprotected.” (Internal citation omitted.) Here, the Homeowners’ continued property interest in protecting their residences is forced to be given up in 20 years. Indeed, the seawall itselfis part of the property and is automatically rendered illegal at the expiration deadline. Absent satisfying the Nollan and Dolan tests, such a condition -3]- amounts to an outright confiscation by the Commission ofthe right to protect private property. Such confiscation can only be constitutionalifthe condition is roughly proportional to the adverse impacts caused by the seawall. 2. Because Future Impacts Are Unknown, and MayNot Even Exist, Permit Termination Cannot Be Shown To Be Roughly Proportional The forced expiration of the permit cannot be shownto be roughly proportional to any adverse impacts caused by the seawall. Indeed, the Commission does not know what the future impacts will be, if any. Nevertheless, despite not identifying with any particularity the nature and extent offuture impacts, the Commission takes the most aggressive and severe form ofcondition—thatis, complete termination ofthe legality ofthe seawall. The lack ofany rough proportionality between this extreme condition and any unknown adverse impacts is revealed by the true purpose of the permit- expiration condition. As discussed above, the expiration is not due to any actual impacts of the seawall, but is to allow the Commission discretion to apply new regulations and changes in policy to the existing and permitted seawall. It is no answer for the Commission to argue that there are unknown impacts that may occur. Indeed, the fact that these impacts are unknown, speculative, and uncertain proves the point that there is no rough proportionality between such unknown impacts and the termination of the -32- seawall permit. The outright expiration of the permit simply reachestoo far and cannot be shownto be proportionalto as yet unknownfuture impacts. The Commission is simply assuming the worst case scenario, that future impacts warrant expiration ofthe permit. But such a conclusionis a guess, completely speculative, and inherently cannot be shownto be roughly proportionalto the impact of the seawall. It is also no answer for the Commission to contend that the Homeowners can avoidlosing the right to protect their property by simplyre- applying for another approval. A new application does not render the expiration condition any less unconstitutional. Rather, a future new application would simply be the effort by the Homeownersto re-establish the right that they have alreadylost by the expiration of the existing permit. The dissenting opinion below correctly understood as follows: Here, the Commission’s condition that the seawall permit expires in 20 years unconstitutionally forces the homeownersto waive their rights and property interests without any nexus or “rough proportionality” to potential adverse impacts caused by the seawall. Dissenting slip op. at 19. Judge Nares continued: The condition forces the homeownersto waivetheir present and future rights to protect their homes, as guaranteed to them by section 30235 of the Coastal Act and the California Constitution. Despite substantial evidence establishing that the homeswill continue to be threatened, the condition effectively -33- extinguishestheir right to protect their properties, beginning in 2031. Td. In summary,the permit-expiration is an unconstitutional condition that has not been shownto be roughly proportional to adverse impacts of the seawall. Indeed, the very fact that future impacts are unknown,unquantified, and may not even exist, can only mean that the most extreme condition of terminating the permit goes too far. Under the United States Supreme Court precedents, this Court is urged to hold that the condition invalid as an unconstitutional condition. i THE COMMISSION’S STAIRWAY PROHIBITION IS UNLAWFUL A. Because a “Disaster” Destroyed a Portion of the Homeowners’Stairway,Its Reconstruction Does Not Require a CDP The repair ofthe stairway is authorized by the Coastal Act without any need to secure a CDP from the Commission. The Act specifies that “no coastal development permit shall be required . . . for the following types of development . . . (g)(1) The replacementofany structure . . . destroyed by a disaster.” Pub. Res. Code § 30610(g)(1). First, there is no question that a disaster destroyed the lowerportion of the stairway. Although the Commission initially contended that the -34- destruction of the lower portion was not caused by the heavy rains of December 2010, the trial court ruled that the Commission used the wrong definition of the term “disaster” and wasin error. JA 203 (“the Commission failed to proceed in the manner required by law in applying an erroneous 999definition of ‘disaster’”). On appeal, the Commission did not assign error to this ruling, nor argue in its brief that the trial court ruling was incorrect. Accordingly, for purposes here,it is now a verity on appeal that the stairway wasdestroyed by a disaster. Ofcourse, that conclusion is also well supported by the record. AR 2347-48; JA 130-32 (President Obama declared San Diego County an emergencydisasterrelief area). In short, the Coastal Act recognizes the arbitrary nature of natural disasters. Rather than penalizing the unfortunate few whosuffer destruction beyondtheir control, the Act provides this exception to the CDP requirement so that coastal owners can quickly re-establish their existing structures to the status they enjoyed before the disaster. The Homeownershereare entitled to this relief with respect to their long-established stairway. B. Repair of the Stairway Is Not Precluded by Local Policies 1. To the Extent Any Local Policy or Regulation Prohibits Repair of the Stairway, Such Policy or Regulation Is Invalid Local regulations and policies may not operate in a mannerthatis in conflict with the Coastal Act. Pub. Res. Code § 30005(a) (allowing localities -35- to imposestricter requirements, as long as they are “not in conflict with this act’); Yost v. Thomas, 36 Cal. 3d 561, 572-73 (1984) (LCPs must conform to the Coastal Act); McAllister v. California Coastal Commission, 169 Cal. App. Ath 912, 930 n.9 (2008) (same). Asdiscussed above, the Coastal Act clearly exempts from the CDP requirement the replacementofstructures destroyed by a disaster. Pub. Res. Code § 30610(g)(1). However, the Commission contended below that this exemption is narrowed by the next sentenceofthe statute whichstates that the “replacement structure shall conform to applicable zoning requirements.” Id. Underthis language, the structure itselfmust conform to the zoning requirements. This language does mean that the “use” must conform to the zoning requirements, ratherit is the physical structure that must conform. This distinction is important. It allows for local regulations that govern the structure’s design, aesthetics, dimensions, and similar structural considerations. Such concerns are morenaturally within the purview oflocal regulations and typically would not be in conflict with the Act. However, to the extent any such local regulations conflict with the right of replacement undersection 30610(g)(1), such conflicting regulations must be invalid as applied. - 36- 2. Repair of the Stairway Is Consistent with All - Applicable Local Policies and Regulations The Commission argues that the City’s policies and regulations preclude repair ofthe stairway. The Commissionfirst points to Public Safety Policy 1.6, whichstates, in part: “The City shall provide for the reduction of unnatural causesofblufferosion, as detailed in the Zoning Code, by: a. Only permitting public access stairways and noprivate stairways.” Similarly, the Commission points to Policy 6.7 of the City’s Circulation Element, which providesin part “New private accesswaysshall be prohibited.” The trial court correctly rejected the applicability of either policy because they only applied to proposals for new stairways, not the repair of stairways that have been in existence for over 40 years. As stated by thetrial court: Both policies refer to “new”structures and private accessways. Suchis not the case here. If the Petitioners were attempting to install a new stairway or completely replace a stairway, such policies would bartheir application. However,here, petitioners simply seek to repair a portion of a stairway. JA 204. The Court ofAppeal below ignoredthis factual distinction. The plain language, however, cannot be ignored. The policies clearly apply only to proposals for new access, but not to the repair of the portion of the existing stairway that was destroyed by the December 2010 disaster. Accordingly, these local policies do not provide a basis for avoiding the authority under _37- section 30610(g)(1) allowing replacement of the destroyed portion of the stairway structure. The Commission further argues that the “Coastal BluffOverlay Zone” (CBOZ)prohibits repair of the stairway. Homeowners recognize that the CBOZdoesprohibit new development onthe face ofa coastal bluff. Encinitas Municipal Code § 30.34.020 B.2. However, once again, the prohibition does not apply to existing structures. The same code provision goes on to provide that “Existing legal structures andfacilities within 40 feet ofa bluffedge or on the face of a bluffmay remain unchanged.... Routine maintenance of existing facilities is allowed.” Encinitas Municipal Code § 30.34.020 B.4 (emphasis added). There can be no dispute that even in its damagedstate, the stairwayis an existing legal structure. First, the stairway was approved by the County of San Diego in 1973, and then approved with a CDP from the Commission in 1989. It is a legal structure. Second, the stairway also isstill existing. Yes, it was damagedbythe disaster, but as the photosinthe record reveal, the upper portion of the stairway and the landing area remained. AR 1579, 2255 (photos). - 38 - All that the Homeownersseekis to havetheir legally approved stairway remain unchanged. They want no morethantheright to repair the stairwayto its identical configuration and materials, unchanged from the wayit has been for over 40 years. This is precisely the kind ofsituation that the exception in B.4 wasintendedto allow. Moreover, allowing existing legal structures to remain unchanged is consistent with the authority under section 30610(g)(1) for the replacement of structures destroyed by disaster. The whole point of allowing a replacement structure is so that the development status of a parcel remains unchanged, despite the arbitrary consequencesofa disaster. While unnecessary to the analysis, the provision allowing for maintenanceofexisting structuresis also consistent with section 30610(g)(1). To “maintain” something means “to keep in existence or continuance; to preserve” or to “keep in due condition, operation, or force.” Webster’s American Family Dictionary (1998). Of course, this is precisely what the Homeowners want to do. They simply wantto keep the stairway in operation, in existence, and preserve it for continued use. While the maintenanceis substantial, the work itself is still maintenance. The B.4 exception providesits clear intent by stating that existing legal structures “may remain unchanged.” While the Coastal Bluff Overlay Zone undoubtedly precludes new developmentonthe bluff, it is equally clear that whateverstructures are already developed andlegally approved may remain -39- unchanged. In effect, the intent is to freeze the status quo. Existing legal structures will not be penalized and may remain unchanged, but no new structures will be allowed on the face of the bluff. The Homeownersseek to realize thatintent. Finally, it is worth noting that the failure to permit the repair of the stairway would change the status of the bluff. That is, there will be a very unusual, eyecatching, and dangerous stairway proceeding downthe bluff and left dangling at the mid-point.’ This is a result that no one should want. Indeed,it is a result that is contrary to the intent ofpreserving the status quo. In short, under the Coastal Act, section 30610(g)(1) authorizes repair of the lower portion of the stairway. The applicable zoning requirements are consistent with that authorization. In summary, the Homeowners have enjoyed a shared stairway connecting their homes to the beach for over 40 years. A disaster destroyed the lower portion ofthat stairway and the Homeownersseekto repair it under the authority ofthe Coastal Act, section 30610(g)(1). That authority is clearly applicable. > See supra note 2. - AQ - CONCLUSION The Homeownershaveaffirmatively exercised their right to judicial review by timely filing a petition for writ of mandate as required by the Coastal Act procedures and case law. At no point was there ever any intent to waivethat right. Moreover, the deed restriction upon which the Commission relies expressly incorporates the Special Conditions and, through the severability clause, expressly acknowledgesthat those conditions can be held to be invalid. Accordingly, the deed restriction confirms that there has been no intent by the Homeownersto waive their right to judicial review of the legality of the conditions. The Court is urged to so rule and proceed to the merits of the challenges to the Special Conditions. On the merits, for the reasons set forth above, the Court is urged to rule that the 20-year permit-expiration condition does not mitigate any identified adverse impacts caused by the Homeowners’ seawall. Accordingly, the condition reaches too far and violates both the Coastal Act section 30235 and the Federal unconstitutional-conditions doctrine, and should therefore be found to be invalid as a matter oflaw. Finally, the condition prohibiting replacement -4] - of the stairway is contrary to the authority under the Coastal Act section 30610(g)(1) and is unlawful. DATED: March 10, 2015. Respectfully submitted, JAMES S. BURLING JOHN M. GROEN JENNIFER F. THOMPSON Pacific Legal Foundation JONATHANC. CORN Axelson & Corn, P.C. By _/s/ JOHN M. GROEN JOHN M. GROEN Attorneysfor Petitioners Barbara Lynch and ThomasFrick _ 42 - CERTIFICATE OF COMPLIANCE Pursuant to California Rule of Court 8.204(c)(1), I hereby certify that the foregoing PETITIONERS’ OPENING BRIEFis proportionately spaced, has a typeface of 13 points or more, and contains 9,402 words. DATED: March 10, 2015. /s/ JOHN M. GROEN JOHN M. GROEN - 43 - DECLARATION OF SERVICE BY MAIL I, Tawnda A.Elling, declare as follows: I am resident of the State of California, residing or employed in Sacramento, California. I am overthe age of 18 years and am nota party to the above-entitled action. Mybusiness addressis 930 G Street, Sacramento, California 95814. On March 10, 2015, true copies ofPETITIONERS’ OPENING BRIEF were placed in envelopes addressedto: Hayley Elizabeth Peterson Office of the Attorney General 110 West A Street, Suite 1100 San Diego, CA 92101 Clerk ofthe Court Fourth District Court ofAppeal, Division One Symphony Towers 750 B Street, Suite 300 San Diego, CA 92101 Clerk of the Court San Diego County Superior Court North County Division 325 South Melrose Drive Vista, CA 92081 which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox regularly maintained by the United States Postal Service in Sacramento, California. I declare underpenalty ofperjury that the foregoingis true and correct and that this declaration was executed this 10th day of March, 2015, at dole. ® TAWNDAA. ELLING Sacramento, California.
