Martin v. Cal. Coastal Commission CA4/1 ( 2021 )

Filed 6/23/21 Martin v. Cal. Coastal Commission CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GARY MARTIN et al., D076956
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2018-
00044048-CU-WM-NC)
CALIFORNIA COASTAL
COMMISSION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Affirmed in part and reversed in part.
FisherBroyles and Paul J. Beard II, for Plaintiffs and Appellants.
Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney
General, Daniel A. Olivas, Assistant Attorney General, Jamee J. Patterson
and Kimberly R. Gosling, Deputy Attorneys General for Defendant and
Appellant.
Gary and Bella Martin appeal from a judgment entered after the trial
court granted in part and denied in part their petition for writ of
administrative mandate challenging the imposition of certain special
conditions placed on the development of their property—a vacant, oceanfront
lot in Encinitas—by the California Coastal Commission (Commission). The
Commission also appeals the judgment. The Martins’ appeal challenges a
condition requiring them to eliminate a basement from their proposed home,
while the Commission challenges the trial court’s reversal of its condition
requiring the Martins to set back their home 79 feet from the bluff edge.
Because we agree with this court’s recent decision in Lindstrom v. California
Coastal Com. (2019) 40 Cal.App.5th 73 (Lindstrom) interpreting the same
provisions of the Encinitas Local Coastal Program (LCP) and Municipal Code
at issue here, we reverse the trial court’s invalidation of the Commission’s
setback requirement. We affirm the court’s decision to uphold the basement
prohibition.
FACTUAL AND PROCEDURAL BACKGROUND
The Martins own an 11,394 square-foot, blufftop vacant lot in
Encinitas. 5,400 square feet of the lot sits atop the bluff, with the rest
extending west down the bluff’s face. They applied to the City of Encinitas
(the City) for a Coastal Development Permit (CDP) to build a two-story, 3,110
square-foot house with an additional 969 square-foot basement and 644
square-foot garage. The proposed design set the first story of the home back
40 feet from the 93-foot high bluff edge, and set back the second story
cantilevered deck 32 feet. In support of the application, and as required by
the LCP and Municipal Code, the Martins submitted geotechnical reports
certifying the home satisfied the requirements of the LCP contained in
Municipal Code section 30.34.020. The City’s third-party geotechnical
consultant reviewed those reports and agreed with the analysis.
2
On April 21, 2016, the City Planning Commission adopted a resolution
consolidating two lots owned by the Martins into one and approving the CDP
for their home. On May 25, 2016, two Commissioners appealed the City’s
approval to the Commission.1 At its meeting on July 13, 2016, the
Commission found the appeal raised a “substantial issue on the grounds on
which the appeal was filed” and continued the matter to a future hearing. In
the subsequent months, the Martins’ geotechnical consultant GeoSoils, Inc.
(GSI) and the Commission staff exchanged reports about the appropriate
setback for the proposed development. The parties also met several times to
discuss the project.
At the Commission’s August 8, 2018 meeting, Commission staff
presented a report recommending approval of the home but with additional
conditions on the Martins’ development of their property, including that the
home be set back 79 feet from the bluff’s edge and barring the design from
including a basement. After a divided vote, the Commission adopted the
staff’s recommendation and approved the development with the
recommended additional conditions.2
The Commission staff’s report explained its position that the City’s
approval was inadequate because it failed to account for the LCP’s
requirement that new development be set back far enough to provide for a
safety factor of 1.5 at the end of 75 years. The safety factor is a calculation
1 The Coastal Act allows an appeal of the local determination by the
Coastal Commission if two or more of the Commissioners agree. (Pub.
Resources Code, §§ 30603, 30625, subd. (a).) Here, Vice-Chair of the
Commission Bochco and Commissioner Shallenberger appealed the City’s
decision.
2 Three of the eleven commissioners sided with the Martins.
3
that addresses bluff stability, i.e. the risk of landslides or bluff failure, while
the time period of 75 years addresses bluff erosion over time.3
The two “special conditions” imposed by the Commission at issue on
appeal are special condition 1(a), requiring the 79-foot setback from the bluff
edge, and special condition 1(c), the basement prohibition.4 In determining
the 79-foot setback, the Commission relied on the analyses of its staff
geologist, Dr. Joseph Street, and its staff engineer, Dr. Lesley Ewing.
Drs. Street and Ewing reached their conclusions after considering the reports
of GSI, hired by the Martins to evaluate the bluff for purposes of permitting
the development. GSI opined that a 40-foot setback complied with the LCP,
and certified that the home would be “safe from coastal bluff retreat over its
3 A scientific paper in the administrative record supporting the
Commission staff’s report explains the safety factor analysis: “In such an
analysis, the forces resisting a potential landslide are first determined.
These are essentially the strength of the rocks or soils making up the bluff.
Next, the forces driving a potential landslide are determined. These forces
are the weight of the rocks as projected along a potential slide surface. The
resisting forces are divided by the driving forces to determine the ‘factor of
safety.’ A value below 1.0 is theoretically impossible, as the slope would have
failed already. A value of 1.0 indicates that failure is imminent. Factors of
safety at increasing values above 1.0 lend increasing confidence in the
stability of the slope. The industry-standard for new development is a factor
of safety of 1.5, and many local grading ordinances in California and
elsewhere (including the County of Los Angeles, and the Cities of Irvine,
Malibu, and Saratoga, among others) require that artificial slopes meet this
factor of safety.”
4 In the trial court the Martins also successfully challenged special
condition 3(a), which provides that, by accepting the permit, the Martins
agree that no bluff or shoreline armoring device will ever be built to protect
the new home. They have abandoned this challenge on appeal and thus we
agree with the Commission that the trial court’s invalidation of special
condition 3(a) should be reversed.
4
75-year design life without the need for shoreline protection.” Drs. Street and
Ewing also reviewed reports by another consultant hired by the Martins,
Dr. Ben Benumof, who likewise endorsed the development with a 40-foot
setback.
The Commission’s staff arrived at 79 feet by adding the setback
required to achieve a 1.5 factor of safety (40 feet) and the anticipated erosion
over 75 years (39 feet). As to the 1.5 factor of safety, the Commission agreed
with GSI that it was presently located 40 feet back from the bluff edge. As to
the erosion rate, the Commission staff also agreed with GSI’s historic rate of
0.20 feet per year. The Commission staff, however, disagreed with GSI’s
estimate of a long-term future rate of erosion of 0.27 feet per year.
Drs. Street and Ewing concluded that rate did not “adequately account for
the likely acceleration of bluff retreat rates in the future due to sea level
rise….”
The Commission staff calculated the future erosion rate to be 0.52 feet
per year (39 feet over 75 years). It determined this rate using the SCAPE
method, a scientifically supported methodology that incorporates site-specific
information and sea level rise estimates.5 GSI had also used a methodology
similar to SCAPE at one point, and had calculated an erosion rate of 0.344
feet per year (which it later revised to 0.27 feet per year). Drs. Street and
Ewing concluded GSI’s rate was not adequate because GSI had relied on a
lower projection of future sea level rise than was supported by the most
recent scientific literature.
5 “SCAPE (Soft Cliff and Platform Erosion) is a detailed, process-based
numerical model that was developed to simulate the sensitivity of shore
profile response, including cliff retreat rates, to changes in sea level over
timescales of decades to centuries.”
5
Drs. Street and Ewing concluded that 0.52 feet per year was more
accurate based on the State of California’s most current sea level rise science
and recommendations, as outlined in 2017 and 2018 reports by the State’s
Ocean Protection Council Science Advisory Team. Using data and suggested
risk profiles from those reports, the Commission staff adopted a
recommended “medium-high risk aversion scenario” resulting in the 0.52 feet
per year rate. Commission staff also noted this rate was generally consistent
with the 0.49 feet per year erosion rate used by the Commission for the prior
five new blufftop home approvals in Encinitas. The rate also fell within the
range of uncertainty projected in CoSMoS, a state-of-the-art modeling tool
developed by the U.S. Geological Survey.6
The Commission staff report also addressed the impact of the proposed
40-foot setback on the project’s compliance with the public access and
recreation policies of the Coastal Act. The report explained that, in
conjunction with sea level rise, if a shoreline protective device became
necessary to protect the structure, the installation of such protection would
lead to the loss of beach access. In the Commission staff’s view, a 79-foot
setback, among the other conditions, was necessary to avoid this impact.
As for the proposed basement, the Commission staff found that the
Encinitas bluffs are hazardous and unpredictable, and bluff retreat may
6 The Commission’s staff report describes CoSMos: “Coastal Storm
Modeling System 3.0 (CoSMoS)” is “a new, state-of-the art tool developed by
the United States Geological Survey (USGS) to predict year 2100 cliff
positions based on various sea level rise scenarios. CoSMoS integrates eight
complex cliff retreat models which take into account not only changes in
mean sea level (and the rate of [sea level rise]), the historical bluff retreat
rate (which is assumed to capture site-specific factors, such as geology), a
range of likely wave climates based on historical variability and global
climate models, and the progressive evolution of the shore and cliff profiles
over time.”
6
eventually cause the basement to be exposed, even with a 79-foot setback.
The Commission staff also found that removing or relocating the basement, if
feasible, would significantly alter the bluff and could threaten its stability.
The Martins submitted a plan for removing the basement, along with GSI’s
certification of the plan. The Commission, however, found the removal plan
was insufficient because it failed to “provide any detail related to geologic
stability risks of removing a basement on an eroding blufftop site, [did] not
detail how removal of the basement would impact stability of neighboring
structures, and [did] not detail how the basement void could be filled” upon
removal. Thus, the Commission concluded the proposed basement was
inconsistent with the LCP’s requirement that all blufftop structures be
removable.
After the Commission’s conditional approval, the Martins filed a
petition for writ of administrative mandate and complaint for declaratory and
injunctive relief challenging special conditions 1(a) (the 79-foot setback), 1(c)
(the basement prohibition) and 3(a) (the bluff and shoreline armoring device
prohibition). In addition to seeking a writ of mandate reversing the
Commission’s conditional approval, the Martins also sought a declaration
that “the Commission’s bluff-edge setback methodology” is unlawful, an
injunction to preclude the Commission’s future use of the methodology, a
declaration that “the Commission’s policy of requiring the waiver of future
shoreline protection as a condition” of approval is unlawful, and an injunction
preventing “the Commission from enforcing or implementing such policy.”
After briefing and a hearing, the trial court issued an order finding
special condition 1(a) was inconsistent with the LCP and the Commission’s
imposition of the condition was an abuse of discretion. The court also agreed
with the Martins that the imposition of special condition 3(a) was an abuse of
7
the Commission’s discretion. The court rejected the Martins’ challenge to
special condition 1(c), and denied their requests for injunctive and
declaratory relief. Thereafter, the court entered judgment against the
Commission and issued a peremptory writ of administrative mandate
directing the Commission to set aside and reconsider its conditional approval.
Both parties timely appealed the judgment.
DISCUSSION
I
Legal Standards
A
Statutory Background
“ ‘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.)’ ” (Lindstrom, supra, 40
Cal.App.5th at p. 91, quoting 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,
8
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 Palisades, at p. 794, citing [Pub.
Resources Code,] §§ 30519, subd. (a), 30600.5, subds. (a), (b), (c).)’ ”
(Lindstrom, supra, 40 Cal.App.5th at p. 91.)
“After a local government grants a coastal development permit, certain
types of permit decisions may be appealed to the Commission by the
applicant, any aggrieved person, or two members of the Coastal Commission
(Pub. Resources Code, §§ 30603, 30625, subd. (a)). As relevant here, an
appeal to the Commission is authorized for ‘[d]evelopments approved by the
local government between the sea and the first public road paralleling the sea
or within 300 feet of the inland extent of any beach or of the mean high
tideline of the sea where there is no beach, whichever is the greater distance.’
(Id., § 30603, subd. (a)(1).) ‘ “If the Commission determines that an appeal
presents a substantial issue, the permit application is reviewed de novo; in
effect, the Commission hears the application as if no local governmental unit
was previously involved, deciding for itself whether the proposed project
satisfies legal standards and requirements.” ’ (McAllister v. California
Coastal Com. (2008) 169 Cal.App.4th 912, 920, fn. 3; see also Pub. Resources
9
Code, §§ 30621 [de novo hearing on appeal]; 30625, subd. (b)(2) [substantial
issue required].)” (Lindstrom, supra, 40 Cal.App.5th at p. 92.)
“The Commission’s jurisdiction on appeal, however, is limited.
[Citation.] Specifically, ‘[t]he grounds for an appeal ... shall be limited to an
allegation that the development does not conform to the standards set forth
in the certified local coastal program or the public access policies set forth in
[the Coastal Act].’ (Pub. Resources Code, § 30603, subd. (b)(1).) In addition,
the Commission’s jurisdiction on appeal includes imposing reasonable terms
and conditions on the permit, as the Coastal Act provides ‘[a]ny permit that is
... approved on appeal, ... shall be subject to reasonable terms and conditions
in order to ensure that such development or action will be in accordance with
the provisions of this division.’ (Pub. Resources Code, § 30607.)” (Lindstrom,
supra, 40 Cal.App.5th at p. 92.) Further, “ ‘ “[u]nder the Coastal Act’s
legislative scheme, ... the [LCPs] and the development permits issued by local
agencies pursuant to the Coastal Act are not solely a matter of local law, but
embody state policy.” [Citation] “In fact, a fundamental purpose of the
Coastal Act is to ensure that state policies prevail over the concerns of local
government.” ’ ” (Lindstrom, at p. 92.)
B
Standard of Review
“To obtain judicial review of a decision or action of the Commission, any
aggrieved person has the right to file a petition for writ of mandate pursuant
to section 1094.5 of the Code of Civil Procedure. (Pub. Resources Code,
§ 30801.) ‘ “ ‘The inquiry in such a case shall extend to the questions of
whether the [Commission] has proceeded without, or in excess of jurisdiction;
whether there was a fair trial; and whether there was any prejudicial abuse
of discretion.’ ” [Citation] An abuse of discretion is established if the
10
Commission failed to proceed in the manner required by law, its order or
decision is not supported by the findings, or its findings are not supported by
substantial evidence. [Citation.] [¶] The trial court presumes that the
agency’s decision is supported by substantial evidence, and the party
challenging that decision bears the burden of demonstrating the contrary.
[Citation] In reviewing the agency’s decision, the court examines the whole
record and considers all relevant evidence, including that evidence which
detracts from its decision. [Citation.] “Although this task involves some
weighing to fairly estimate the worth of the evidence, that limited weighing
does not constitute independent review where the court substitutes its own
findings and inferences for that of the Commission. Rather, it is for the
Commission to weigh the preponderance of conflicting evidence, as [the court]
may reverse its decision only if, based on the evidence before it, a reasonable
person could not have reached the conclusion reached by it.” ’ ” (Lindstrom,
supra, 40 Cal.App.5th at p. 93.)
“ ‘On appeal ... our role is identical to that of the trial court.’ [Citation]
‘ “ ‘Thus, the conclusions of the superior court, and its disposition of the
issues in this case, are not conclusive on appeal.’ ” ’ ” (Lindstrom, supra, 40
Cal.App.5th at p. 93.)
C
Lindstrom v. Commission
In September 2019 this court issued its opinion in Lindstrom, a case
presenting issues that overlap with those presented in this case, and which
explicitly resolved the same setback question presented here in favor of the
Commission. Like this case, Lindstrom involved the development of a home
on a coastal bluff in Encinitas. (Lindstrom, supra, 40 Cal.App.5th at p. 82.)
Like the Martins, the Lindstroms obtained a CDP from the City, which was
11
then challenged by the Commission. Unlike this case, the City’s approval
was based on a geotechnical report prepared by the applicants’ consultant,
Geotechnical Exploration, Inc. (GEI), which used the same methodology
advocated for by the Commission (i.e. combining the expected erosion over 75
years with the setback needed to achieve a bluff stability safety factor of 1.5).
(Lindstrom, at pp. 83–84.) The setback recommended by GEI and approved
by the City, however, was based on an erosion rate of 0.125 feet per year,
which was far lower than the rate of 0.49 used by GEI for other recent
development projects it had been engaged for that were located on “other
portions of the Encinitas coast.” (Id. at p. 84, fn. 3.) As here, the Commission
appealed the City’s approval of a 40-foot setback. (Id. at pp. 84–85.)
Thereafter, GEI submitted a revised report to the Commission that
“concluded that the erosion rate of 0.125 per year was in error” and “set forth
a revised erosion rate of 0.40 per year, for total erosion of 30 feet in 75 years.”
(Lindstrom, supra, 40 Cal.App.5th at p. 85.) GEI also revised its bluff
stability analysis, concluding a safety factor of 1.5 would be achieved at a
setback of 42.25 feet, not the 18.3 feet it originally calculated. (Ibid.) “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.” (Ibid.) To avoid the large setback, GEI’s new report advocated for
an alternative approach that “did not depend on achieving a safety factor of
1.5” after 75 years and resulted in a lesser setback. (Ibid.)
Before the Commission hearing, the Lindstroms engaged a different
consultant, TerraCosta Consulting Group (TCG) to prepare a new
geotechnical report. (Lindstrom, supra, 40 Cal.App.5th at p. 85.) TCG also
concluded that the predicted bluff erosion rate was 0.40 feet per year. TCG’s
12
bluff stability setback calculation was lower, resulting in a factor of safety of
1.5 at 23–25 feet from the bluff edge. (Id. at p. 86.) Like GEI’s revised
report, TCG argued that adding the two setback calculations was
unnecessary, opining that the factor of safety of 1.29 it expected at the end of
75 years if a 40-foot setback was approved would be sufficient to prevent the
need for a seawall or other bluff stabilization structure. (Ibid.) In support of
this position, TCG explained 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.’ ” (Ibid.) Thus, it argued,
“ ‘[t]here 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.’ ” (Ibid.)
As in this case, the Commission concluded the 40-foot setback
advocated for by TCG was insufficient under the LCP because it failed to
consider both the factor of safety (i.e. the bluff’s stability) and the predicted
erosion rate of the coastline. In the proceedings before the Commission, staff
geologist Dr. Mark Johnsson explained the LCP required the applicant to
demonstrate that the factor of safety of 1.5 be maintained for the full 75
years, not just under present conditions. (Lindstrom, supra, 40 Cal.App.5th
at p. 87.) Thus, to assure “ ‘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.’ ”
(Ibid.)
Adopting this interpretation of the LCP, the Commission imposed a
special condition requiring a 60–62 foot setback from the bluff edge (based on
TCG’s calculations), which it found would allow the owners to construct a
3,500 square foot home (or larger if a variance of the front setback
13
requirement was obtained). (Lindstrom, supra, 40 Cal.App.5th at pp. 87–88.)
The Lindstroms challenged the decision and, as in this case, the trial court
concluded the Commission’s interpretation of the LCP was wrong. The court
relied on correspondence, which the Martins also heavily rely on, written by a
city planner in 2006 concerning coastal development. In the letter, the
planner states that the City required applicants to provide a geotechnical
report that calculated erosion over 75 years and the present 1.5. factor of
safety, and to impose a setback requirement equal to the larger of the two
calculations, but did not require the setbacks to be combined. (Id. at p. 90.)
The Commission appealed and this court rejected the trial court’s
interpretation of the LCP. We held the LCP, as implemented by Encinitas
Municipal Code section 30.34.020, explicitly “ ‘requires a structure to ‘be
reasonably safe from failure and erosion over its lifetime.’ (Encinitas Mun.
Code, § 30.34.020D, italics added.) Further, [we held] the LCP specifically
provides that the geotechnical report must ‘[d]emonstrate a safety factor
against slope failure of 1.5’ and must ‘[a]ddress a time period of analysis of 75
years.’ (Encinitas Mun. Code, § 30.34.020D.11, 2d par. b & c.)” (Lindstrom,
supra, 40 Cal.App.5th at p. 98.) We concluded that, “[w]hen read together,
the plain meaning of these provisions is that, taking into account the erosion
that will occur over 75 years, the geotechnical report must demonstrate a
safety factor of 1.5 at the end of 75 years.” (Ibid., italics added.)
Lindstrom concluded the interpretation of the LCP advanced by the
Martins, “in which a safety factor of 1.5 must be shown only at the present
time, not taking into account predicted erosion over the lifetime of the
structure, defies the plain language of the LCP as well as common sense. A
layman does not need special geotechnical training to understand the self-
evident concept that for a structure to ‘be reasonably safe from failure and
14
erosion over its lifetime’ (Encinitas Mun. Code, § 30.34.020D), the combined
effect of expected erosion and bluff instability must be considered. [Footnote
omitted.] A structure that is reasonably safe today because it is located 40
feet from the edge of the bluff will not be reasonably safe at the end of its
lifetime when the bluff has eroded 37 feet, meaning that the structure is only
three feet from the edge of the bluff.” (Lindstrom, supra, 40 Cal.App.5th at
p. 98.)
II
The Commission Correctly Interpreted the LCP and
Encinitas Municipal Code Section 30.34.020D
As the Commission rightly points out in its briefing, Lindstrom, which
was issued after the trial court’s decision in this case, definitively rejected the
argument advanced by the Martins that the Commission wrongly interpreted
the LCP in its calculation of the required setback. The Commission asks this
court to follow Lindstrom and again uphold its interpretation of the LCP.
The Martins ask us to reconsider Lindstrom and argue “the methodology
used to arrive at [the 79-foot] setback contravenes the LCP as interpreted by
the City for a quarter century.”
A
The Commission certified the City’s LCP in 1995. The LCP is
comprised of a Land Use Plan, which states the City’s general goals and
policies, as well as Zoning Regulations. The Land Use Plan comprises a
number of specific “elements,” including Land Use and Public Safety
Elements. The City’s Zoning Regulations, codified in Title 30 of the Encinitas
Municipal Code, implement the goals of the Land Use Plan. (Pub. Resources
Code, § 30513.)
15
The LCP imposes specific requirements on the development of blufftop
property within the Coastal Bluff Overlay Zone as defined by the City’s Land
Use Plan. The LCP mandates that, with limited exceptions, no new principal
or accessory structure can be constructed “within 40 feet of the top edge of the
coastal bluff.” (Encinitas Mun. Code, § 30.34.020B.1.) The provision of the
LCP at issue here, Encinitas Municipal Code section 30.34.020D, requires
applicants seeking a permit or development approval for new construction
within the Coastal Bluff Overlay Zone, to submit “a soils report, and either a
geotechnical review or geotechnical report” that is “prepared by a certified
engineering geologist who has been prequalified as knowledgeable in City
standards, coastal engineering and engineering geology.” (Encinitas Mun.
Code, § 30.34.020D.)
Further, the report must “certify that the development proposed will
have no adverse affect [sic] 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 ordinance then sets forth a list of
specific items the report must address related to the geology of the property.
(Ibid.) The geotechnical report must 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.” (Ibid.) Finally, the report must:
“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.
16
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.)
B
The Martins make various arguments in support of their assertion that
Lindstrom was wrongly decided. First, they contend the plain language of
section 30.34.020D does not support the Commission’s method of calculating
the setback. They argue the ordinance only requires that the “slope failure
analysis” prepared by an applicant’s certified engineering geologist:
(a) “ ‘[c]over all types of slope failure;’ ” (b) “ ‘[d]emonstrate a safety factor
against slope failure of 1.5;’ ” and (c) “ ‘[a]ddress a time period of analysis of
75 years,’ ” but that the provision does not require the calculations under (b)
and (c) be combined.
Next, the Martins argue that additional language in the ordinance
relied on by Lindstrom to support its determination that the LCP requires
the two setback calculations be combined—“that any proposed structure or
facility is expected to be reasonably safe from failure and erosion over its
lifetime”—also does not require the use of the Commission’s methodology.
(Lindstrom, supra, 40 Cal.App.5th at p. 102.) They argue that because the
phrase is not quantified, other methodology can also satisfy the standard.
(Encinitas Mun. Code, § 30.34.020D.) Finally, the Martins argue the
methodology used by the Commission is overly cautious and inconsistent with
“State-established standards of practice….”
We are not persuaded by these arguments. As Lindstrom explained,
the LCP explicitly requires the structure “be reasonably safe from failure and
erosion over its lifetime.” (Lindstrom, supra, 40 Cal.App.5th at p. 98, quoting
Encinitas Mun. Code, § 30.34.020D, second italics added.) Further, the
17
ordinance requires the geotechnical report to “demonstrate a safety factor
against slope failure of 1.5” (“the industry standard for new construction on
slopes”) and “[a]ddress a time period of analysis of 75 years.” (Ibid.) “When
read together, the plain meaning of these provisions is that, taking into
account the erosion that will occur over 75 years, the geotechnical report
must demonstrate a safety factor of 1.5 at the end of 75 years.” (Ibid., italics
added.) The methodology proposed by the Martins, i.e. using only the greater
of the two calculations, does not take “into account predicted erosion over the
[full] lifetime of the structure, def[ying] the plain language of the LCP as well
as common sense.” (Ibid.)
With respect to the Martins’ assertion that other methodology can
satisfy the LCP’s requirements, they propose no other method that accounts
for both erosion and stability. Rather, they argue only that because “an
owner wouldn’t even ‘qualify’ for shoreline protection until a structure’s factor
of safety fell to 1.2 or below” the Martins’ proposed home is reasonably safe
over its 75-year lifetime. The standard employed for the construction of
shoreline protection, however, is not the same standard the LCP applies to
new construction. We agree with our Lindstrom colleagues that a “layman
does not need special geotechnical training to understand the self-evident
concept that for a structure to ‘be reasonably safe from failure and erosion
over its lifetime’ (Encinitas Mun. Code, § 30.34.020D), the combined effect of
expected erosion and bluff instability must be considered.” (Lindstrom,
supra, 40 Cal.App.5th at p. 98.) “A structure that is reasonably safe today
because it is located 40 feet from the edge of the bluff will not be reasonably
safe at the end of its lifetime when the bluff has eroded [39] feet, meaning
that the structure is only [one foot] from the edge of the bluff.” (Ibid.)
18
For this reason, we also reject the Martins’ contention that the
methodology employed by the Commission is an “ ‘unrealistically
conservative’ redundancy.” The methodology the Commission employs is the
one required by the LCP; thus, whether the “American Society of Civil
Engineers, Los Angeles Section” outlines a different requirement, as the
Martins contend, is not controlling.7 As this court held previously, “the City’s
LCP expressly states that the geotechnical report must ‘[d]emonstrate a safety
factor against slope failure of 1.5’ ” at the “end of 75 years.” (Lindstrom,
supra, 40 Cal.App.5th at p. 99.)
The Martins also argue that Lindstrom should not control because it
wrongly assumed there was no “interpretive disagreement … between the
City and the Commission concerning the LCP’s setback provisions.” The
Martins base this assertion on the fact that the record in Lindstrom did not
contain an explicit statement of the City’s current interpretation of the
ordinance (since the City approved the development based on the Lindstroms’
first consultant’s analysis which used the additive method), while here the
City explicitly accepted the Martins’ interpretation. This argument is a red
herring. As we held in Lindstrom, the existence of an interpretive
disagreement between the Commission and City is irrelevant because the
plain language of the LCP requires the additive methodology to determine
the appropriate setback.8 (Lindstrom, supra, 40 Cal.App.5th at p. 96.)
7 The Martins’ citation to this standard is a letter drafted by their
geotechnical consultant that merely states this standard, but they do not
provide the source material.
8 For this same reason, we need not reach the parties’ dispute over which
governmental agency’s interpretation of the LCP is entitled to greater
deference.
19
The fact that various setbacks have been accepted by the Commission
since the adoption of the LCP in 1995 also does not lead to the conclusion
that the Commission’s interpretation of the ordinance is incorrect. Citing the
trial court’s order in Lindstrom that this court reversed, the Martins assert
the “Commission acknowledged it was moving away from the LCP to address
the fact that ‘[w]e are in a new normal’ and ‘new world.’ ” The Lindstrom
order goes on to state that the Commission’s staff noted that “[t]here have
been circumstances where the Commission has not required development to
be set back the sum of the factor of safety and the erosion rate over 75 years.”
However, it next states that “[m]any of these analyses did not correctly apply
the 1.5 factor of safety for the life of the new structure according to current
Commission practice.” (Italics added.) Like the Lindstrom panel, we do not
agree that because the ordinance may have been applied incorrectly in the
20
past, the City’s incorrect interpretation deserves deference.9 (Lindstrom,
supra, 40 Cal.App.5th at pp. 96–98.)
III
Substantial Evidence Supported the Commission’s Imposition
of Special Condition 1(a)
The Martins next contend that even if the methodology used by the
Commission was in accord with the LCP, there was not substantial evidence
to support a 79-foot setback. Specifically, they argue there was no evidence
9 The Commission staff’s report for the final hearing in this case sheds
additional light on historical setback approvals in the area of the Martins’
home. The report acknowledges the Commission did not appeal bluff
approvals from 1995-2000 but explains the reason for inaction was that the
Commission did not have a sufficiently experienced staff to challenge the
approvals. The Commission report states, “it is likely that the geotechnical
claims made by these applicants were inconsistent with the requirements of
the City’s LCP and were not based on the cumulative setback needed to
account for 75 years of expected erosion and the 1.5 Factor of Safety.” In
2001, the Commission hired its first licensed geologist and since then has
appealed 16 of 23 approvals by the City of new bluff top homes. Of those
challenges, “[t]he interpretation of how to correctly determine the appropriate
bluff edge setback was an appeal contention in … 10 appeals that the
Commission took a final action on (either approval on De Novo or No
Substantial Issue and not withdrawn or still pending). In 9 of the 10 appeals,
the Commission found that the correct way to determine the [setback] is to
find the distance from the bluff edge necessary to achieve a factor of safety of
1.5 today and add to that the expected bluff retreat over the next 75 years.”
In contrast, the only evidence the Martins submitted in support of their
claim that smaller setbacks were approved by the Commission are
photographs of the homes adjacent to their lot with no information
concerning when those homes were permitted and, as in Lindstrom, “an
unhelpful summary chart prepared by the [Martins] for the Commission
hearing that is not accompanied by any supporting record citations.”
(Lindstrom, supra, 40 Cal.App.5th at p. 96, fn. 22.)
21
to support the future erosion rate of 0.52 feet assumed by the Commission
and that it is mere speculation. This argument is without merit.
Like the trial court, we presume “ ‘that the [Commission’s] decision is
supported by substantial evidence ….’ ” (Lindstrom, supra, 40 Cal.App.5th at
p. 93.) The party challenging the Commission’s decision “ ‘bears the burden
of demonstrating the contrary.’ ” (Ibid.) Although our “ ‘ “task involves some
weighing to fairly estimate the worth of the evidence, that limited weighing
does not constitute independent review where the court substitutes its own
findings and inferences for that of the Commission. Rather, it is for the
Commission to weigh the preponderance of conflicting evidence, as [the court]
may reverse its decision only if, based on the evidence before it, a reasonable
person could not have reached the conclusion reached by it.” ’ ” (Ibid.)
The parties agree that the rate of erosion will increase from the
historical level as a result of sea level rise. The disagreement lies in how
much they think the rate may rise. The Martins also contend the
Commission did not factor in the strength of the material at the base of the
bluff, material known as Torrey sandstone, and instead incorrectly assumed
it was made of softer material more susceptible to erosion. According to the
Martins, these errors resulted in erosion projections that are too
conservative, and thus show the imposition of the 79-foot setback is not
supported by substantial evidence. The administrative record, however,
establishes the Commission’s staff used well-accepted scientific methodology
to support its setback recommendation to the Commission, including with
respect to projected erosion.
22
As discussed, Drs. Street and Ewing arrived at the erosion rate of 0.52
feet per year using the SCAPE methodology.10 The Commission provided
ample explanation for Drs. Street and Ewing’s conclusion that a higher
projected level of rise was more appropriate than that advocated for by the
Martins’ geotechnical consultant, GSI. Critically, the Commission staff used
more recent sea level rise data and recommendations than those used by
GSI.11
Specifically, the staff relied on two recent reports, which it asserts
constitute the “best available science on which to base future planning and
investing decisions in California” and which GSI acknowledged provided
current sea level rise estimates. The more recent of the two reports used by
the Commission staff, titled State of California Sea-Level Rise Guidance 2018
Update, expands on the other, earlier report by providing a framework for
municipalities and other governance bodies to determine the appropriate sea
level rise projections for various types of planning and policy decision making
based on the level of risk aversion that applies to the decision. For types of
development where the consequences of incorrect projections of sea level rise
are greater, the report guides the decision maker to use more conservative
projections.
10 The Martins also attempt to discredit Drs. Street and Ewing because
they are not “certified” engineering geologists. As the Commission points out,
however, it is not required to have a certified engineering geologist on staff.
The record shows both professionals are qualified to evaluate the submissions
of the applicants and opine on the issues before this court. (See Lindstrom,
supra, 40 Cal.App.5th at p. 99, fn. 25.)
11 Even GSI proposed using a similar methodology to SCAPE but
assumed a lesser rate of sea level rise.
23
Applying the framework to this project, Drs. Street and Ewing
concluded that 0.52 feet per year was an appropriate projection of future
erosion. Drs. Street and Ewing then performed two checks on their
conclusions, first using another scientifically accepted methodology, CoSMoS,
and second by comparing the erosion rate to that used in the Commission’s
five most recent approvals of new homes on the Encinitas blufftop. Both
confirmed the projection.
With respect to the relative strength of the material underlying the
bluff, the Commission responded to GSI’s criticisms, explaining that the
strength was accounted for in multiple ways, including using the site-specific
historical erosion rate as the starting point for its SCAPE calculations and
cross-checking the SCAPE calculations against CoSMos, which uses cliff-
retreat projections for two 100-meter stretches of coast near the Martins’ site.
In addition, the Commission staff explained that, contrary to the Martins’
assertions, it did examine the geological specifics of the Martins’ site,
agreeing that “the material strength of a bluff is absolutely crucial in
determining the erosion rate,” but found it more appropriate to use a broader
view of the surrounding coastline than GSI.
Given these facts, the record contains ample support for the
Commission’s use of the 0.52 feet per year rate of erosion. The Martins have
not established that the Commission failed to adequately account for the
strength of the material at the bottom of the bluff, or that this factor
invalidates the Commission staff’s approach. At most, the Martins have
shown disagreement between experts about the potential erosion in the area.
It was the Commission’s role to evaluate this competing evidence, and it is
not our role to reevaluate the Commission’s reasoned decision. (See
Kirkorowicz v. California Coastal Com. (2000) 83 Cal.App.4th 980, 986
24
(Kirkorowicz) [“it is for the Commission to weigh the preponderance of
conflicting evidence, as we may reverse its decision only if, based on the
evidence before it, a reasonable person could not have reached the conclusion
reached by it”].) Accordingly, we reject the Martins’ contention that
insufficient evidence supports the Commission’s imposition of special
condition 1(a).
IV
The LCP Requires All New Construction Be Designed and Constructed for
Future Removal
The Martins next contend that special condition 1(c), which prohibits
the Martins from constructing a basement, was improperly imposed. They
contend the LCP policy under which the condition was authorized applies
only to construction that is within 40 feet of the bluff’s edge and therefore
does not apply to their proposed development at all. The Commission
responds that the trial court’s interpretation of the policy language to apply
to all new construction was correct. We agree with the Commission.
Policy 1.6 of the City’s LCP sets forth a list of specific actions the City
must undertake to “provide for the reduction of unnatural causes of bluff
erosion.…” Included within that list is subdivision (f), which states in full:
“Requiring new structures and improvements to existing
structures to be setback 25 feet from the inland blufftop edge,
and 40 feet from coastal blufftop edge with exceptions to allow a
minimum coastal blufftop setback of no less than 25 feet. For all
development proposed on coastal blufftops, a site-specific
geotechnical report shall be required. The report shall indicate
that the coastal blufftop setback will not result in risk of
foundation damage resulting from bluff erosion or retreat to the
principal structure within its economic life and with other
engineering evidence to justify the coastal blufftop setback.
“On coastal bluffs, exceptions to allow a minimum setback of no
less than 25 feet shall be limited to additions or expansions to
25
existing principal structures which are already located seaward
of the 40 foot coastal bluff top setback, provided the proposed
addition or expansion is located no further seaward than the
existing principal structure, is set back a minimum of 25 feet
from the coastal blufftop edge, and the applicant agrees to
remove the proposed addition or expansion, either in part or
entirely, should it become threatened in the future.
“In all cases, all new construction shall be specifically designed
and constructed such that it could be removed in the event of
endangerment and the applicant shall agree to participate in any
comprehensive plan adopted by the City to address coastal bluff
recession and shoreline erosion problems in the City.
“This does not apply to minor structures that do not require a
building permit, except that no structures, including walkways,
patios, patio covers, cabanas, windscreens, sundecks, lighting
standards, walls, temporary accessory buildings not exceeding
200 square feet in area, and similar structures shall be allowed
within five feet from the bluff top edge ….” (Italics added.)
The Martins argue that the italicized portion of the provision, the third
paragraph, applies only to the immediately preceding paragraph and thus
only to construction that is exempted from the 40 foot setback requirement.
The Martins reason that this interpretation is “consistent with the overall
policy of protecting only realistically vulnerable structures at or near the
bluff edge.”
“ ‘The construction of an ordinance is a pure question of law for the
court, and the rules applying to construction of statutes apply equally to
ordinances.’ ” (Lindstrom, supra, 40 Cal.App.5th at p. 94.) “We give the
language its usual and ordinary meaning, and ‘[i]f there is no ambiguity, then
we presume the lawmakers meant what they said, and the plain meaning of
the language governs.’ ” (Allen v. Sully-Miller Contracting Co. (2002) 28
Cal.4th 222, 227.) We agree with the Commission that the Martins’
26
interpretation of Policy 1.6.(f) conflicts with the provision’s plain language,
which states explicitly it applies “in all cases.”
As the Commission contends, the paragraph at issue stands alone, after
one paragraph setting forth the general setback rules for new structures and
improvements, and a second paragraph containing the exception for additions
and expansions of existing structures. This structure, addressing distinct
issues in each paragraph, in conjunction with the policy’s use of the phrases
“[i]n all cases” and “all new construction,” makes clear that the third
paragraph applies to both preceding paragraphs, not just the second and
immediately preceding paragraph. (See People v. Cole (2006) 38 Cal.4th 964,
975 [“We must harmonize the various parts of the enactments by considering
them in the context of the statutory framework as a whole.”].) Accordingly,
we reject the Martins’ contention that special condition 1(c) was not
authorized because the removability requirement it applied to the proposed
basement is only applicable to construction within 40 feet of the bluff edge.
The Martins also cite Encinitas Municipal Code Section 30.34.020B.1,
in support of their position. They state the provision mirrors Policy 1.6(f) and
thus requires the same interpretation. We disagree. Subdivision B.1 of
section 30.34.020 restates the prohibition on the construction of structures
less than 40 feet from the top edge of the bluff. It then lists four exceptions to
the prohibition. The first, found in subdivision B.1.a, on which the Martins
rely, states:
“Principal and accessory structures closer than 40 feet but not
closer than 25 feet from the top edge of the coastal bluff, as
reviewed and approved pursuant to subsection C, Development
Processing and Approval, of this section. This exception to allow
a minimum setback of no less than 25 feet shall be limited to
additions or expansions to existing principal structures which are
already located seaward of the 40-foot coastal blufftop setback,
provided the proposed addition or expansion is located no further
27
seaward than the existing principal structure, is setback a
minimum of 25 feet from the coastal blufftop edge and the
applicant agrees to remove the proposed addition or expansion,
either in part or entirely, should it become threatened in the
future. Any new construction shall be specifically designed and
constructed such that it could be removed in the event of
endangerment and the property owner shall agree to participate in
any comprehensive plan adopted by the City to address coastal
bluff recession and shoreline erosion problems in the City.”
(Italics added.)
As the trial court pointed out, this provision is not applicable to the
Martins’ proposed development of a new home. Although the italicized
language mirrors that found in Policy 1.6(f), unlike 1.6(f) it is plainly
addressed only to new construction that falls within the exception at issue,
i.e. construction of additions or expansions of existing structures that are
seaward of the 40-foot setback line. We fail to see how this ordinance
supports the imposition of a limitation on Policy 1.6(f)’s broader requirement
that all new construction be designed and constructed for removal.
V
The Imposition of Special Condition 1(c) Is
Supported by Substantial Evidence
The Martins’ final contention on appeal is that insufficient evidence
supported the imposition of special condition 1(c) prohibiting them from
constructing a basement. Specifically, they assert that there is no evidence in
the record to support the Commission’s findings that removal of the basement
would require alteration of the bluff and that excavation of the basement, if
necessary, would threaten the bluff’s overall stability. The Martins further
contend that the “Demolition and Removal Plan” they submitted establishes
that the basement could be removed without disturbing the bluff’s stability.
28
The Commission counters that substantial evidence in the
administrative record supports this special condition. Specifically, they
assert the evidence shows the bluff is both highly susceptible to landslides
and “actively eroding.” The Commission also asserts that in addition to this
existing threat, the increasing sea level rise and the uncertainty of its impact
intensifies the risk the basement could be exposed in the future.
Additionally, the Commission asserts its staff provided significant evidence
that removal of the basement would threaten the overall stability of the bluff
and the neighboring structures.
We agree with the Commission that there is sufficient evidence to
support the Commission’s finding a basement cannot be safely removed,
justifying the imposition of special condition 1(c). The Martins, in essence,
contend that the only evidence relevant to the determination is the report of
GSI who opined there are no “geologic stability risks” associated with the
removal of the basement. Their report, however, does not negate the
substantial evidence relied on by the Commission.
With respect to the fragility of the bluff, the geotechnical review report
prepared by Drs. Street and Ewing explained that “the bluff at the project
site is actively eroding, as evidenced by the bluff toe notching, occasional
block fall talus, bluff face rilling, and minor upper bluff retreat that is visible
in historical aerial photographs (California Coastal Records Project,
http://www.californiacoastline.org).” The Commission staff report also cited a
2010 report prepared by GSI stating that “while there is no evidence of
historic or ancient deep-seated landslides, the upper terrace materials have a
potential for retreat through rotational landslides (GSI 2010).” Additionally,
Commission staff reported that “the entire Encinitas coastline has been
identified by the California Division of Mines and Geology as an area ‘most
29
susceptible’ to landslides (Tan and Giffen 1995),” and explained “several
significant landslides have occurred in the project vicinity, including a 400-
foot wide, deep-seated slide at Beacon’s Beach (900 block of Neptune Ave.)
that was initiated in 1982-83 (URS 2014), and a large bluff failure (100-ft
wide, 10-ft thick) on the 400 block of Neptune Ave. that occurred in 1993
(USACE 1996).” Drs. Street and Ewing also opined that higher levels of
erosion than those projected for their setback calculations were possible.
This evidence sufficiently supported the Commission’s finding that the
proposed basement might become endangered.
Likewise, substantial evidence supported the Commission’s finding
that removal of the basement would threaten the stability of the bluff. In
addition to the significant evidence concerning the risk of landslides in the
area of the Martins’ lot, Dr. Ewing testified that the basement would be
“placed into terrace materials, which is mostly somewhat consolidated sand.”
Dr. Ewing explained that if bluff erosion or recession necessitates the
removal of the basement, the nearby sand “is going to be lacking support and
… is not going to stay on that vertical face, and so it’s going to slump in.
[¶] ... [T]hat collapse of the sand [will] come through to the bluff face itself.”
Dr. Ewing also stated that if the basement is removed, the home above would
likely require removal as well, further threatening the bluff’s stability.12
This testimony and documentation constitutes substantial evidence
supporting the Commission’s conclusion that removing or relocating the
12 The Surfrider Foundation, a non-profit environmental advocacy group,
similarly testified that “[r]emoval of the basement in the future could
significantly alter the bluff’s natural state, which is also inconsistent with the
LCP.” The Surfrider Foundation’s letter submission advocated elimination of
the proposed basement “to make the structure more moveable, if ever
threatened by erosion.”
30
basement would alter and potentially destabilize the bluff. The Martins’
conflicting evidence, consisting of GSI’s contrary opinion that the proposed
removal of the basement would not be harmful, does not require reversal. As
with special condition 1(a), it is not our role to reweigh the evidence in the
manner the Martins advocate or to substitute our view for that of the
commission. (See Kirkorowicz, supra, 83 Cal.App.4th at p. 986; Pescosolido v.
Smith (1983) 142 Cal.App.3d 964, 970 [“The burden is upon the appellant to
show there is no substantial evidence whatsoever to support the findings.”].)
DISPOSITION
The judgment is reversed in part as to special conditions 1(a) and (3)(a)
and affirmed in part as to special condition 1(c). The trial court’s writ of
administrative mandate requiring the Commission to set aside and
reconsider its August 8, 2018 decision conditionally approving Coastal
Development Permit No. A-6-ENC-16-0060 is vacated. The parties to bear
their own costs of appeal.
McCONNELL, P. J.
WE CONCUR:
DATO, J.
DO, J.
31