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Greene v. California Coastal Commission

California Court of Appeals, Second District, Fifth Division

October 9, 2019

MARK GREENE et al., Plaintiffs and Appellants,

          APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS165764, James C. Chalfant, Judge.

          Pacific Legal Foundation, Jeffrey W. McCoy, Lawrence G. Salzman and Joshua P. Thompson; Dignity Law Group and David R. Greene for Plaintiffs and Appellants.

          Xavier Becerra, Attorney General, Daniel A. Olivas, Senior Assistant Attorney General, Christina Bull Arndt, Andrew M. Vogel, and Erica B. Lee, Deputy Attorneys General, for Defendant and Respondent.

          RUBIN, P.J.

         In this appeal, appellants Mark and Bella Greene challenge the California Coastal Commission's permit condition for the remodel of their beachside residence. The condition requires construction be set back five feet from the seaward property line. The Greenes argue the Commission erred in finding that a five-foot buffer was needed to safeguard the public's access to the beach and associated walkway. The Greenes also contend the five-foot setback requirement constituted an unconstitutional taking of their property. We disagree and affirm the trial court's denial of the Greenes' petition for writ of administrative mandate.[1]


         In 2015, the Greenes hired an architect to design the remodel of their beachfront property. The architect developed plans to add 1, 190 square feet to their 2, 410-square-foot duplex. The existing residence was set back from the seaward property line by 15 feet. The proposed construction would extend the residence to 1.5 feet from the seaward property line on the ground level; the second level would be built up to the property line with no setback.

         The property abutted “Ocean Front Walk, ” the designated location for the City of Los Angeles's public walkway on the beach. Construction of the concrete walkway was happening “intermittent[ly]”-the City's practice was to require applicants for new residences to construct the portion of the path located seaward of any residential property, or pay an “in-lieu fee” to the City for future development of the walkway. In the Greenes' case, the City did not require them to construct part of the walkway because the proposed project was an addition to an existing structure, not a new residence.

         On June 28, 2016, the City approved a permit for the Greenes' proposed remodel. Because the property is in a dual permit jurisdiction, the Greenes also had to obtain approval from the Commission. In August 2016, the Greenes filed an application for a coastal development permit with the Commission seeking approval for the remodel.

         On February 23, 2017, the Commission published a staff report recommending approval of the Greenes' permit application with several conditions including a five-foot setback from the seaward property line. The report found that public access concerns justified the imposition of the setback condition. According to the Commission staff, the City had historically prioritized setbacks for new developments abutting residential properties and deprioritized setbacks for new developments abutting public lands. The Commission staff found that some residences were built so close to the seaward property line that the public area appears to be private. The staff found that a 1.5-foot buffer would not allow adequate space on the Greenes' property for normal maintenance, such as painting or repairs, absent encroachment on public land. The staff further found that where there were inadequate setbacks, beachfront homeowners tended to use designated public areas as their backyard. The report concluded:

         “the provision of a 5 foot setback from the rear (seaward) property line should be considered the minimum setback necessary to allow for normal repair and maintenance activities of the residence on site to occur on the applicants' property without requiring encroachment into public beach and Ocean Front Walk areas, provide for a minimum privacy buffer, avoid the appearance of privatization of the area designated for Ocean Front Walk, and minimize potential conflicts between property owners and members of the public using Ocean Front Walk. [¶] Therefore, the development, as conditioned, is consistent with the public access and recreation policies of Chapter 3 of the Coastal Act.”[2]

         In a separate section of the report, the Commission staff expressed concern about future rises of sea level as another basis to support the imposition of the five-foot setback:

         “[T]he proposed development is located in an area where coastal hazards exist that could adversely impact the development, and due to sea level rise, the Commission imposes [the condition] which requires that the proposed development have at least a 5-foot rear (seaward side) setback....”

         On March 9, 2017, following the receipt of the staff recommendation, the Commission held a hearing on the application. Multiple commissioners raised concerns about the setback condition and one commissioner moved to remove it from the permit. The motion failed, and the Commission then unanimously approved the permit as recommended in the staff report. The commissioners did not specify at the time of the vote which findings they had adopted from the staff report.

         On May 5, 2017, the Greenes filed a petition for writ of administrative mandate and a complaint for declaratory and injunctive relief seeking to invalidate the five-foot setback condition. The Greenes argued the setback constituted an unconstitutional taking. The Greenes also asserted that the Commission had abused its discretion because there was no ...

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