Appellate courts rejects challenges to coastal property restrictions, but leaves door open

An appellate court on Wednesday rejected constitutional challenges to five California Coastal Commission policies that restrict coastal property rights, but it warned it's too early for them to be property adjudicated and emphasized the need for cities to comply with state laws prohibiting unconstitutional takings.

The unanimous decision by the 4th District Court of Appeal upholds the city of Solana Beach's application of the policies, which include preventing oceanfront homeowners from repairing existing beach stairways and prohibiting the construction of new ones.

The panel found the current challenges weren't ripe for adjudication because "until there has been a final, definitive, position regarding how the City will apply the challenged enactment to the complaining party's land; only then can it be determined whether a taking has occurred."

The justices emphasized the city and commission "are under an express statutory directive to not apply the Coastal Act in a way that would infringe constitutional rights."

Invalidating the policies now would "deprive the City and Commission the opportunity to apply them in a way that will not result in unconstitutional takings without just compensation, as required by section 30010 and policy 5.9.5," according to the 36-page ruling, written by Justice Judith L. Haller. Justices Joan K. Irion and Terry B. O'Rourke concurred.

Larry G. Salzman, senior attorney with the Pacific Legal foundation, which represents the plaintiffs, called it "more of a procedural ruling."

"Their view is the lawsuit came too early, is basically what they're saying," Salzman said. "The likely outcome, I think, is actually more lawsuits by individual homeowners in coming years."

Steven M. Kauffman, a Nossaman LLP partner who is defending Solana Beach, said the court followed "well-established case law."

"This is a good victory for the Coastal Commission because it emphasizes the certainty of how you properly challenge a Commission decision in the land-use planning context," Kauffman said. "It's certainly, I'm sure, gratifying to the city to have resolution of the issue."

The ruling reverses a December 2016 ruling by San Diego County Superior Judge Timothy M. Casserly in an action filed by the Pacific Legal Foundation on behalf of the Beach & Bluff Conservancy, which represents coastal landowners in the city.

Casserly granted a motion for judgment and petition for writ mandate regarding the two policies while denying the motion and petition as to five other policies.

The Pacific Legal Foundation appealed regarding three of the five policies Casserly ruled were legal, and the city, Coastal Commission and Surfrider Foundation cross-appealed his decision that the two others were illegal.

The appellate panel on Monday sided with the Coastal Commission, ruling the Pacific Legal Foundation should have filed a petition for writ of administrative mandate instead of seeking declaratory relief and traditional mandamus because it challenged the city's application of the policy, not the actual policy. Beach and Bluff Conservancy v. City of Solana Beach, 2018 DJDAR 10212 (Cal. App. 4th, filed Oct. 17, 2018).

Case law establishes that "any post-approval facial challenge to a local land use policy is essentially a challenge to the Commission's quasi-judicial certification decision," according to the ruling, which cites San Mateo County Coastal Landowners' Association. v. County of San Mateo, 38 Cal. App. 4th 523 (Cal. App. 1st Dist. Sept. 18, 1995).

"As such, the challenge must be made by petition for writ of administrative mandate under Code of Civil Procedure section 1094.5, as expressly provided in section 30801," Haller wrote.

Even without that finding, the justices determined the constitutional challenges "fail on the merits."

"A declaratory relief action is an appropriate remedy only if the party is seeking a declaration that a statute controlling development of coastal lands is actually unconstitutional," Haller added.

Still, the justices determined the constitutional challenges to the policies "fail on the merits," including one they said "can be determined only on a case-by-case basis through as-applied challenges to the policy." They emphasized their decision doesn't preclude future challenges related to a specific property, which Salzman said are likely.

"There's no question many homeowners will feel the need to protect their property by suing," Salzman said. "It'll be more lawsuits, not less, and that's the shame."