Court, San Diego County, No. 37-2011-00058666- CU-WM-NC Ct.
App. 4/1 D064120 Earl H. Maas III Judge.
D. Harris and Xavier Becerra, Attorneys General, Mark J.
Breckler, Chief Assistant Attorney General, John A.
Saurenman, Assistant Attorney General, Jamee Jordan Patterson
and Hayley Peterson, Deputy Attorneys General, for Defendant
L. Herbstman for California State Association of Counties,
League of California Cities and International Municipal
Lawyers Association as Amici Curiae on behalf of Defendant
Mihaly & Weinberger, Fran M. Layton and Catherine Malina
for American Planning Association and American Planning
Association California Chapter as Amici Curiae on behalf of
Defendant and Appellant.
Faust; Environmental Law Clinic Mills Legal Clinic at
Stanford Law School, Deborah A. Sivas, Alicia E. Thesing and
Matthew J. Sanders for Surfrider Foundation as Amicus Curiae
on behalf of Defendant and Appellant.
Axelson & Corn, Jonathan C. Corn; Pacific Legal
Foundation, James S. Burling, John M. Groen, Paul J. Beard II
and Jennifer F. Thompson for Plaintiffs and Respondents.
Briscoe Ivester & Bazel and Peter Prows for Beach and
Bluff Conservancy, Protect the Beach.org, Seacoast
Preservation Association and Coastal Property Owners
Association of Santa Cruz County as Amici Curiae on behalf of
Plaintiffs and Respondents.
& Bird and Paul J. Beard II for California Association of
Realtors and National Association of Realtors as Amici Curiae
on behalf of Plaintiffs and Respondents.
& Tucker and David P. Lanferman for California Building
Industry Association, California Cattlemen's Association
and California Farm Bureau Federation as Amici Curiae on
behalf of Plaintiffs and Respondents.
winter storms damaged the seawall protecting their blufftop
properties, homeowners sought a permit from the California
Coastal Commission (Commission) to build a new seawall and
repair their beach access stairway. The Commission granted
the permit subject to several mitigation conditions. The
owners filed an administrative mandate petition objecting to
two conditions but then proceeded with construction. We hold
that the owners forfeited their challenge because they
accepted the benefits the permit conferred.
Barbara Lynch and Thomas Frick own adjacent oceanfront
properties in Encinitas. Their homes sit on a coastal bluff
that cascades steeply down to the beach and Pacific Ocean.
The Encinitas shoreline is especially susceptible to
landslides. Since 1986, the properties have been protected by
a shared seawall at the base of the bluff and a midbluff
erosion control structure. The original seawall contained
20-foot wooden poles embedded in the sandy beach and cabled
to the bluff. In the midbluff structure, railroad ties and
supporting wooden poles were tied into the bluff with steel
cables. A shared stairway provided the only access from the
blufftop to the beach below. In 1989, the Commission
retroactively approved a coastal development permit for the
seawall, midbluff structure, and stairway. Plaintiffs later
added concrete footings at the base of the poles.
the wooden poles showed significant decay, plaintiffs applied
to the City of Encinitas (City) for authorization to replace
the wooden seawall and midbluff structure with an integrated
concrete wall. They also sought to rebuild the lower portion
of the stairway, which would be attached to the new wall. The
City approved the project in 2009, finding it consistent with
the general plan and municipal code. Final approval required
a coastal development permit from the Commission. While
plaintiffs' application for this permit was pending,
unusually heavy winter storms caused the bluff below
Lynch's home to collapse, destroying part of the seawall,
most of the midbluff structure, and the lower portion of the
sought a new permit to demolish the old structure, construct
a new tied-back seawall across both properties, and rebuild
the lower stairway. Commission staff recommended approving
the proposed seawall, even though the existing support under
Frick's property was adequate, because the new wall would
provide greater stability and visual appeal. The proposed
seawall would be located eight feet inland from its current
location, providing additional beach area for recreation. But
staff recommended disapproving the stairway, finding it
inconsistent with local coastal plan requirements
discouraging private access stairways on the bluff.
the Commission approved a coastal development
permit allowing seawall demolition and
reconstruction, with the addition of midbluff geogrid
protection below Lynch's home. The permit was subject to
several conditions, three of which are at issue here. Special
condition No. 1(a) prohibits reconstruction of the lower
stairway. Special condition No. 2 provides that the seawall
permit will expire in 20 years and prohibits future blufftop
redevelopment from relying on the seawall as a source of
geologic stability or protection. Special condition No. 3
requires that, before ...