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Lindstrom v. California Coastal Commission

California Court of Appeals, Fourth District, First Division

September 19, 2019

JAMES LINDSTROM et al., Plaintiffs and Appellants,
v.
CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Super. Ct. No. 37-2016-00026574- CU-WM-NC

          Xavier Becerra, Attorney General, Daniel A. Olivas, Assistant Attorney General, Jamee Jordan Patterson and Hayley Peterson, Deputy Attorneys General, for Defendant and Appellant.

          Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Molly Loughney Melius, Thomas Miller and Annelise Corriveau as Amicus Curiae on behalf of Defendant and Appellant.

          The Jon Corn Law Firm, Jonathan C. Corn, Anders T. Aannestad, Arie L. Spangler and Lee M. Andelin, for Plaintiffs and Appellants.

          IRION, J.

         This case concerns an appeal and cross appeal from the trial court's ruling on a petition for writ of administrative mandate that James and Karla Lindstrom (the Lindstroms) filed against the California Coastal Commission (the Commission) challenging certain special conditions that the Commission placed on its approval of the Lindstroms' plan to build a house on a vacant oceanfront lot on a bluff in Encinitas. The Commission's appeal challenges the trial court's disapproval of the special conditions requiring (1) the home to be set back 60 to 62 feet from the edge of the bluff, instead of the 40-foot setback approved by the City of Encinitas (the City); and (2) a waiver by the Lindstroms of any right to construct a shoreline protective device, such as a seawall, to protect the home from damage or destruction from natural hazards at any time in the future. The Lindstroms cross-appeal from the trial court's approval of the special conditions requiring (1) removal of the home from the parcel if any government agency orders that it not be occupied due to a natural hazard; and (2) performance of remediation or removal of any threatened portion of the home if a geotechnical report prepared in the event the edge of the bluff recedes to within 10 feet of the home concludes that the home is unsafe for occupancy.

         On our de novo review of the trial court's decision, we conclude that with one exception the Commission's imposition of the special conditions identified by the parties was within its discretion. Specifically, the condition requiring removal of the home from the parcel if any government agency orders that it not be occupied due to a natural hazard, including erosion or a landslide, as currently drafted, is overbroad, unreasonable and does not achieve the Commission's stated purpose in drafting it. Therefore, we will reverse the judgment and direct the trial court to enter a new judgment ordering the Commission to either delete the special condition or to revise it to more narrowly focus on its intended purpose.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. The Lindstroms' Application to the City for a Coastal Development Permit

         The Lindstroms own a vacant 6,776 square foot lot on an approximate 70 foot-high ocean-top bluff in Encinitas north of Moonlight State Beach (the Lot). In December 2012, the Lindstroms filed with the City an application for a coastal development permit to build a two-story 3,553 square foot home with a 1,855 square foot underground basement and a 950 square foot garage. The seaward side of the structure would be set back 40 feet from the edge of the bluff.

         Coastal development in the City is governed by the City's Local Coastal Program (LCP), which was certified by the Commission in the mid-1990s.[1] The City's LCP requires that permit applications for development in the Coastal Bluff Overlay Zone, where the Lot is located, be accompanied by a geotechnical report prepared by "a certified engineering geologist." (Encinitas Mun. Code, ch. 30.34, § 30.34.020D.) "The review/report shall certify that the development proposed will have no adverse [e]ffect on the stability of the bluff, will not endanger life or property, and that any proposed structure or facility is expected to be reasonably safe from failure and erosion over its lifetime without having to propose any shore or bluff stabilization to protect the structure in the future." (Encinitas Mun. Code, § 30.34.020D.) The City's LCP lists certain aspects of bluff stability that the geotechnical report shall consider.[2] It further states that "[t]he report shall also express a professional opinion as to whether the project can be designed or located so that it will neither be subject to nor contribute to significant geologic instability throughout the life span of the project." (Encinitas Mun. Code, § 30.34.020D.11, 1st par.)

         As centrally relevant in this case, the City's LCP states, "In addition to the above, each geotechnical report shall include identification of the daylight line behind the top of the bluff established by a bluff slope failure plane analysis. This slope failure analysis shall be performed according to geotechnical engineering standards, and shall: [¶] a. Cover all types of slope failure. [¶] b. Demonstrate a safety factor against slope failure of 1.5. [¶] c. Address a time period of analysis of 75 years." (Encinitas Mun. Code, § 30.34.020D.11, 1st par. a-c.)

         As required by the City's LCP, the Lindstroms submitted a geotechnical report by Geotechnical Exploration, Inc. (GEI) as part of their permit application to the City, which addressed, among other things, erosion and bluff stability over the next 75 years. Addressing the rate of expected erosion, the GEI report opined that the bluff would erode a total of approximately 10 feet in 75 years, based on an annual erosion rate of 0.125 feet.[3] Addressing the issue of bluff stability to arrive at a safety factor of 1.5 as required by the City's LCP, the GEI report concluded that "the coastal bluff at the site is considered grossly stable against deep-seated failures with a setback of 18.3 feet."[4] The GEI report then combined the 10 feet of erosion expected over 75 years with the 18.3 foot setback needed to achieve a bluff stability safety factor of 1.5 to arrive at a total setback distance of 28.3 feet (rounded to 29 feet) for the construction on the Lot.[5] As the City's LCP provides that construction on coastal bluffs shall be set back a minimum of 40 feet (Encinitas Mun. Code, § 30.34.020B.1),[6] the GEI report concluded that based on its analysis showing a recommended setback of approximately 29 feet, "a 40-foot foundation setback should allow for a project life of 75 years, without the need for toe-of-bluff protection."

         The City's planning commission approved the application on May 2, 2013. As part of the approval, the planning commission made findings that the project is consistent with the City's LCP. As one of the conditions for the permit, the City required the Lindstroms to provide a letter stating that " 'the building as designed could be removed in the event of endangerment, and the property owner agreed to participate in any comprehensive plan adopted by the City to address coastal bluff recessions and shoreline erosion problems in the City.' "[7]

         B. The Commission's Consideration of the Appeal

         In June 2013, the City's approval of the Lindstroms' coastal development permit was appealed to the Commission by two of the Commission's members.[8] As relevant here, one ground of the commissioners' appeals was that the City's approval "appears inconsistent with the policies of the LCP relating to the requirement that new development be sited in a safe location that will not require shoreline protection in the future."

         On May 28, 2013, which was after the City's approval of the permit, but prior to the filing of the appeal by the two commissioners, the authors of the GEI report sent a letter to the Commission setting forth a revised geotechnical analysis, presumably for consideration during the commissioners' decision on whether to file an appeal.[9] The GEI letter stated that upon review of other materials, the authors concluded that the erosion rate of 0.125 per year was in error, and it set forth a revised erosion rate of 0.40 per year, for total erosion of 30 feet in 75 years. The GEI letter also revised the bluff stability analysis, concluding that a safety factor of 1.5 would be achieved at a setback of 42.25 feet from the edge (instead of 18.3 feet). GEI explained that if it combined the expected erosion of 30 feet over 75 years with the 42.25 foot setback required to achieve a safety factor of 1.5, the construction would have to be set back a total of 72.25 feet from the edge of the bluff. However, in the letter, GEI proposed an alternative to a bluff failure analysis that did not depend on achieving a safety factor of 1.5. Specifically, GEI proposed that a bluff stability analysis be based on the "natural angle of repose" of the materials making up the bluff. In that analysis, GEI concluded that a "9.7-foot angle of repose setback" was required in addition to the 30-foot setback required for the expected rate of erosion, for a total setback of 39.7 feet, which was less than the City's minimum 40-foot setback for bluff top construction.

         As the appeal proceeded in the Commission, the Lindstroms decided to obtain a different geotechnical report and requested that the Commission delay its decision on the appeal while the new report was being prepared. The new geotechnical report, dated October 23, 2015, was prepared by TerraCosta Consulting Group (TCG) and signed by two authors: a registered civil/geotechnical engineer and a certified engineering geologist.[10]

         The TCG report concluded that the predicted bluff erosion rate was 0.40 per year, so that in 75 years the bluff could erode 30 feet. TCG explained that its erosion rate was based on "our review of documents and experience along this reach of the coastline," including "our in-house files, along with available published and unpublished documents." With respect to the bluff stability analysis, the TCG report concluded that the bluff was stable at a safety factor of 1.5 "between 23 and 25 feet from the top of [the] bluff."[11] However, TRG rejected the approach employed by GEI, in which the amount of erosion over 75 years was added to the setback required for a safety factor of 1.5 to arrive at the total required setback to ensure the continued stability, over 75 years, of the structure to be constructed on the bluff.[12] Instead, TCG concluded that construction on the bluff would be safe at the end of 75 years even if it did not have a safety factor of 1.5 throughout the entire period:

         "If we were to now assume 30 feet of erosion essentially translating the existing coastal bluff profile to 30 feet landward... this would mean that in 75 years, the actual computed factor of safety 1 foot westerly of the 40-foot setback would be 1.29, and slightly greater when calculated at the existing 40-foot set back.

         "In our opinion, the proposed structure will be perfectly safe for at least 75 years, and will not require a seawall or other bluff stabilization structure during this time. Structures are stable as long as the factor of safety is 1.0 or greater. A 1.29 factor of safety implies a 29 percent safety margin against collapse. It is for this reason that the Coastal Commission does not typically approve seawalls unless the factor of safety at the structure is less than 1.2 and other instability factors are present. There is no engineering reason that a 75-year-old structure near the end of its useful life would be required to have a factor of safety in excess of 1.29 in order to be considered safe. For this reason, we certify without hesitation that the proposed structure will be reasonably safe from failure and erosion over its lifetime without having to propose any shore or bluff stabilization to protect the proposed structure in the future."

         The Commission heard the appeal on July 13, 2016. The Commission's staff geologist Dr. Mark Johnsson made a presentation to the Commission at the hearing. Among other things, Johnsson did not take issue with TCG's analysis that a safety factor of 1.5 was achieved at a distance of 23 to 25 feet from the edge of the bluff. However, Johnsson disputed TCG's erosion rate of 0.40, as he believed "a more appropriate future erosion rate for this site is 0.49 feet per year, or 37 feet over 75 years" based on a 1999 peer-reviewed FEMA funded study showing the highest long-term erosion rate in the area.[13] Johnsson further pointed out that "the city's certified LCP requires that not only must an adequate factor of safety of 1.5 be shown under present conditions, but it must also demonstrate an adequate factor of safety of 1.5 will be maintained over 75 years and cover all types of slope failure."[14] He explained that for "assuring an adequate factor of safety for the expected life of the development" it was necessary to calculate the total setback as "equal to the sum of the bluff retreat setback and the slope stability setbacks." Therefore, in Johnsson's opinion, the setback required in this instance was the 37 foot setback required to account for erosion over 75 years, plus the 23 to 25-foot setback required to achieve a safety factor of 1.5, for a total setback of 60 to 62 feet.

         In the presentation made by the Lindstroms' counsel at the Commission hearing, counsel argued that the Commission should rely on the TCG report to approve the permit at a setback of 40 feet. According to counsel, the City's LCP did not state that a safety factor of 1.5 had to exist over the entire course of 75 years. Counsel argued that the City's LCP did not "require precise methodology" to determine that the structure would be stable over the course of 75 years, so that the TCG report provided a sufficient basis to determine, under the terms of the City's LCP, that a home constructed at a setback of 40 feet would be stable over its lifetime and not require a seawall or other bluff stabilization device.

         In its decision, the Commission explained, "In order to find the appropriate geologic setback for the bluff top home, the Certified LCP requires not only that a long-term erosion rate be adequately identified but also that the geotechnical report demonstrate an adequate factor of safety against slope failure (i.e., landsliding) of 1.5 will be maintained over 75 years (See [Encinitas Mun. Code, §] 30.34.020(D)...). The applicant's geotechnical report of October 23, 2015 identified that a 1.5 factor of safety under present conditions is located at approximately 23 to 25 ft. from the bluff edge. Thus, applying the estimated 37 ft. of erosion over the next 75 years to the 23 to 25 ft. location of the current 1.5 factor of safety would establish a minimum setback for new development at approximately 60 to 62 ft. (37 ft. (23 to 25 ft.)) from the coastal bluff." The Commission explained that the building footprint resulting from a 60 to 62 foot setback from the bluff edge would still allow the Lindstroms to construct a 3500 square foot home, not including a basement, and that if the Lindstroms obtained a variance from the City reducing the frontyard setback, the building footprint would be even larger.[15]

         Rejecting the approach proposed in the TCG report, the Commission stated, "The applicant also contends that the new home, as proposed to be located 40 ft. from the bluff edge, is expected to result in a Factor of Safety of 1.29 after 75 years of erosion (assuming an erosion rate of 0.40 ft./yr.). The applicants argue that with a 1.29 Factor of Safety the home will be safe throughout its 75 year economic life and will not require protection from shoreline armoring. However, the LCP requires a Factor of Safety of 1.5 at 75 years. Thus the applicants' argument is not consistent with the requirements of the LCP. In addition, if the erosion rate recommended by the Commission geologist were used in the applicants' stability analysis, the resulting factor of safety would be significantly lower than 1.29 and after 75 years the home would most likely require shoreline armoring. The industry standard for new development is a Factor of Safety of 1.5. Therefore, to establish a safe setback from slope stability from the edge of a coastal bluff, a new home must be sufficiently set back from the bluff edge to ensure that the 1.5 Factor of Safety is maintained throughout the economic life of the structure."

         The Commission therefore approved the coastal development permit, but with several conditions, including that the structure be set back 60 to 62 feet from the edge of the bluff.[16] Specifically, the conditions required by the Commission that are relevant to the issues presented in the Commission's appeal and the Lindstroms' cross-appeal are as follows:

         "[1.a] The foundation of the proposed home and the proposed basement and shoring beams shall be located no less than 60 to 62 ft. feet landward of the existing upper bluff edge on the northern and southern portions of the site, respectively. [¶]...

         "[3.a] By acceptance of this Permit, the applicants agree, on behalf of themselves and all successors and assigns, that no bluff or shoreline protective device(s) shall ever be constructed to protect the development approved pursuant to Coastal Development Permit No. A-6-ENC-13-0210 including, but not limited to, the residence and foundation in the event that the development is threatened with damage or destruction from waves, erosion, storm conditions, bluff retreat, landslides, or other natural hazards in the future. By acceptance of this Permit, the applicants hereby waive, on behalf of themselves and all successors and assigns, any rights to construct such devices that may exist under Public Resources Code Section 30235.

         "[3.b] By acceptance of this Permit, the applicants further agree, on behalf of themselves and all successors and assigns, that the landowner shall remove the development authorized by this Permit, including the residence and foundation, if any government agency has ordered that the structures are not to be occupied due to any of the hazards identified above. In the event that portions of the development fall to the beach before they are removed, the landowner shall remove all recoverable debris associated with the development from the beach and ocean and lawfully dispose of the material in an approved disposal site. Such removal shall require a coastal development permit."

         "[3.c] In the event the edge of the bluff recedes to within 10 feet of the principal residence but no government agency has ordered that the structures not be occupied, a geotechnical investigation shall be prepared by a licensed coastal engineer and geologist retained by the applicants, that addresses whether any portions of the residence are threatened by wave, erosion, storm conditions, or other natural hazards. The report shall identify all those immediate or potential future measures that could stabilize the principal residence without shore or bluff protection, including but not limited to removal or relocation of portions of the residence. The report shall be submitted to the Executive Director and the appropriate local government official. If the geotechnical report concludes that the residence or any portion of the residence is unsafe for occupancy, the permittee shall, within 90 days of submitting the report, apply for a coastal development permit amendment to remedy the hazard, which shall include removal of the threatened portion of the structure.

         C. The Trial Court's Decision on the Petition for Writ of Mandate

         In August 2016, the Lindstroms filed a petition for writ of mandate against the Commission in the trial court. The writ of mandate challenged several of the special conditions imposed by the Commission, including special conditions 1.a, 3.a, 3.b, and 3.c set forth above.[17]

         After considering the administrative record and the parties' arguments, the trial court partially granted the relief sought by the Lindstroms.

         First, the trial court ruled that the Commission abused its discretion in requiring a setback of 60 to 62 feet from the bluff edge in special condition 1.a. The trial court explained that a setback of that distance was not required by the City's LCP, and that the imposition of the condition was not supported by substantial evidence because it was not based on a report prepared by a certified engineering geologist, but by staff geologist Johnsson's presentation to the Commission.

         In concluding that the City's LCP did not require a setback of 60 to 62 feet, the trial court relied primarily on a letter included by the Lindstroms in the administrative record that provided evidence of the City's interpretation of its LCP in 2006 when corresponding with the Commission about two other applications for coastal development permits. That letter, written by a city planner, stated that the City interpreted its LCP as follows: "The current practice for determining bluff setback accepted by the City of Encinitas requires that the geotechnical consultants perform two separate calculations to determine the appropriate bluff setback. First, the consultant is to determine the amount of erosion, based upon current published and accepted studies that will take place in 75 years. Secondly, the geotechnical consultant, based upon site specific testing, is to perform a slope stability analysis and determine a setback distance that defines a 1.5 safety factor for the slope. The larger of the two setback determinations is then utilized as the minimum required bluff setback; in no case can the bluff setback be less than 40 feet." (Italics added.) The trial court concluded that contrary to the Commission's interpretation, the City's LCP did not require that the total required setback be determined by adding together the amount the bluff was expected to recede over 75 years due to erosion to the setback required to achieve a safety factor of 1.5.

         Second, the trial court concluded that the Commission abused its discretion in imposing special condition 3.a, which requires the Lindstroms to waive any right to build a bluff or shoreline protective device, such as a seawall, in the future. The trial court explained that the requirement was contrary to the language of the City's LCP and the Coastal Act because neither of them "contain such a waiver."

         Finally, the trial court approved both special condition 3.b, which requires removal of the residence and foundation if a government agency orders the structures are not to be occupied due to a natural hazard; and special condition 3.c, which requires the Lindstroms to obtain and follow the recommendations in a geotechnical report if the bluff recedes to within 10 feet of the principal residence. The trial court concluded that the special conditions were permissible because they were not inconsistent with the LCP.

         D. The Instant Appeal and Cross-Appeal

         The Commission filed a notice of appeal from the trial court's judgment and the Lindstroms filed a cross-appeal. The Commission contends that the trial court erred with respect to special conditions 1.a and 3.a. The Lindstroms contend the trial court erred with respect to special conditions 3.b and 3.c.

         II.

         DISCUSSION

         A. Statutory Background and Standard of Review

         "The Coastal Act 'was enacted by the Legislature as a comprehensive scheme to govern land use planning for the entire coastal zone of California. The Legislature found that "the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people"; that "the permanent protection of the state's natural and scenic resources is a paramount concern"; that "it is necessary to protect the ecological balance of the coastal zone" and that "existing developed uses, and future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state...." ([Pub. Resources Code,] § 30001, subds. (a) and (d).)' [Citation] The Coastal Act is to be 'liberally construed to accomplish its purposes and objectives.' (Pub. Resources Code, § 30009.)" (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 793-794 (Pacific Palisades).)

         "The Coastal Act expressly recognizes the need to 'rely heavily' on local government '[t]o achieve maximum responsiveness to local conditions, accountability, and public accessibility....' (Pub. Resources Code, § 30004, subd. (a).) As relevant here, it requires local governments to develop [LCPs], comprised of a land use plan and a set of implementing ordinances designed to promote the act's objectives of protecting the coastline and its resources and of maximizing public access." (Pacific Palisades, supra,55 Cal.4th at p. 794.) "The Coastal Act provides that a local government must submit its [land use plan] to the [Commission] for certification that the [land use plan] is consistent with the policies and requirements of the Coastal Act. ([Pub. Resources Code,] §§ 30512, 30512.2.) After the Commission certifies a local government's [land use plan], it delegates authority over coastal development permits to the local government. (Pacific ...


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