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State high court rules against Encinitas residents in seawall case

SAN DIEGO – Property owners who object to government-mandated restrictions on construction permits must litigate the issues before building their projects, or risk forfeiting their rights to take legal action, the California Supreme Court ruled Thursday in a case involving plaintiffs in Encinitas.

In a unanimous opinion, the justices ruled that plaintiffs Barbara Lynch and Thomas Frick, who own adjacent blufftop properties in the northern San Diego County municipality, gave up their right to challenge the California Coastal Commission’s conditions on a seawall project because they went ahead and had the structure built.

Lynch and Frick were already planning improvements to their seawall when a series of storms in 2010 caused their bluffs to collapse, destroying the ocean barrier.

They then sought a coastal development permit to rebuild the seawall, but the commission approved it under the conditions that they could not rebuild stairs to the beach, that the permit would expire in 20 years and that future blufftop redevelopment could not rely on the seawall as a source of geologic stability or protection.

The commission also ordered that any changes to, or removal of, the seawall before the end of the two decades would require a new permit.

According to the justices, Lynch and Frick complied with various aspects of the permit and had the seawall built while they pursued challenges to the commission’s restrictions. A Superior Court judge ruled in the property owners’ favor, but was overturned at the appellate level.

Lynch and Frick subsequently appealed to the state’s highest court.

“This decision makes it harder for property owners to fight when the Coastal Commission imposes unlawful conditions on permits to use or build on one’s property,” said John Groen, who represented the plaintiffs.

Groen, executive vice president and general counsel of the Pacific Legal Foundation, said the ruling is particularly bad for small property owners.

His clients had an urgent need to rebuild the seawall to protect their property, and clearly stated their objections through every step in the process, he said.

“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.”

The lawyer said property owners will be forced to accept unlawful, even unconstitutional restrictions on their property because they cannot afford to pursue their objections. The foundation litigates on property rights issues.

The right of coastal property owners to build protective barriers is a major issue in the face of eroding coastlines and rising sea levels, according to the Surfrider Foundation.

“The court today made an important ruling that property owners who accept the benefits of a permit forego their right to challenge a permit’s conditions,” said Angela Howe, the environmental organization’s legal director. “By doing so, the high court ensured that the California Coastal Commission’s enforcement of coastal protections remain in place.”

Julia Chunn-Heer, policy manager for Surfrider’s San Diego chapter, said seawalls artificially prevent the movement of the mean high tide line. She said it’s important that the impacts of seawalls are periodically reassessed to ensure the public’s access to the beach