Coastal Commission permit for seawall can’t be challenged after it’s built, state high court rules


A landowner who objects to a condition of a building permit but proceeds with the project anyway cannot later successfully sue to have that condition removed, the California Supreme Court decided unanimously Thursday, July 6.

The state high court ruled against two homeowners in Encinitas who built a seawall to prevent their houses from sliding into the ocean.

While building the wall, the owners went to court to challenge two conditions of a permit from the California Coastal Commission.

One denied them the right to replace stairs to the beach that had been destroyed in a storm and the other required the owners to obtain a new permit for the seawall after 20 years.

“The crucial point is that they went forward with construction before obtaining a judicial determination on their objections,” Justice Carol A. Corrigan wrote for the court.

As a result, Corrigan said, they forfeited their right to have the permit condition overturned.

“In general, permit holders are obliged to accept the burdens of a permit along with its benefits,” the court said.

Barbara Lynch and Thomas Frick, owners of adjacent oceanfront properties on the top of a steep bluff in Encinitas, brought the case.

The city approved a permit in 2009 to replace their wooden seawall with a concrete structure, but a Coastal Commission permit also was required.

While the commission was considering the application, a heavy storm caused the bluff below Lynch’s house to collapse. Part of the seawall and the lower portion of a stairway to the beach were destroyed.

The owners applied for a new permit to destroy the old seawall and replace it and the stairs.

Coastal Commission staff recommended the new seawall be approved. It was to be located eight feet inland from its previous location and would leave more room on the beach for recreation.

But the staff urged the commission to reject the stairway under a policy that discourages private access stairs on the bluff.

The commission approved the project without the stairway under a 20-year permit. It required the owners to apply for a new permit to change or remove the seawall or extend its authorization before the expiration date.

The owners built the seawall but went to court to challenge the denial of the stairway and the 20-year expiration date.

They contended they could not have waited to build until the litigation concluded because their homes were in jeopardy.

If that were the case, the owners should have obtained an emergency permit for a temporary seawall while the litigation proceeded, the court said.

The owners “obtained all the benefits of their permit when they built the seawall,” Corrigan wrote. “They cannot now be heard to complain of its burdens.”

Because the court ruled the owners waived their right to challenge the conditions, the justices did not decide whether they were legal.

A lawyer for the homeowners said the ruling would make it more difficult and extremely costly for property owners to fight unlawful conditions by the Coastal Commission.

“It is particularly bad for small property owners,” said John Groen, executive vice president and general counsel of the Pacific Legal Foundation, a nonprofit that advocates for private property rights and represented the owners without charge.

“The court has shrunk their right to move forward with projects under protest while litigation proceeds,” he said. “Instead, they will be forced to put their lives and projects on hold for years while a court battle over an unlawful condition goes on. “

He said the seawall was certified to last 75 years and cost $1 million.

Sarah Christie, legislative director for the Coastal Commission, said the ruling reflected mainstream legal principles.

“You can build your project, or you can sue, but you can’t do both,” she said. “This is a mainstream legal concept that applies far beyond the Coastal Commission.”

She noted that the League of Cities and the American Planning Assn. had filed arguments in support of the state because the ruling will apply to all sorts of permits.

--Maura Dolan is a writer for The San Diego Union-Tribune