Lynch v. California Coastal Commission ( 2014 )


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  • Filed 9/9/14
    CERTIFIED FOR PUBLICATION
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    BARBARA LYNCH et al.,                            D064120
    Plaintiffs and Respondents,
    v.                                       (Super. Ct. No. 37-2011-00058666-
    CU-WM-NC)
    CALIFORNIA COASTAL COMMISSION,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County, Earl H.
    Maas III, Judge. Reversed.
    Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney
    General, Jamee J. Patterson and Hayley Peterson, Deputy Attorneys General, for
    Defendant and Appellant.
    Axelson & Corn, Jonathan C. Corn; Pacific Legal Foundation, Paul J. Beard II and
    Jennifer F. Thompson, for Plaintiffs and Respondents.
    INTRODUCTION
    The California Coastal Commission (Commission) appeals from a judgment in a
    mandamus action directing the Commission to remove three conditions from a coastal
    development permit amendment (permit) issued to Barbara Lynch and Thomas Frick
    (collectively, respondents). The Commission contends respondents waived any challenge
    to these conditions by signing and recording documents agreeing to them and then
    accepting the benefit of the permit by completing their project. The Commission further
    contends the conditions were valid and supported by substantial evidence. We agree with
    both contentions and reverse the judgment.
    BACKGROUND
    Respondents own adjacent, bluff-top homes in Encinitas. For at least two decades,
    their homes were protected by a 100-foot wooden erosion control structure and a 100-
    foot mid-bluff wall. In addition, a private stairway along the bluff face provided them
    with beach access from their homes.
    In 2003 respondents applied to the City of Encinitas (City) for authorization to
    replace the wooden erosion control structure and the mid-bluff wall. As part of the
    project, they also planned to remove and replace the lower section of the stairway.
    In 2009 the City approved the project, finding the project would not adversely
    affect the City's general plan policies or its municipal code provisions. The City
    conditioned its approval on respondents obtaining a permit from the Commission.
    The same year, respondents applied to the Commission for the required permit.
    While their application was pending, a severe storm caused the bluff below Lynch's home
    2
    to collapse. The collapse destroyed portions of the wooden erosion control structure,
    mid-bluff wall, and stairway. By the time the Commission considered the permit
    application in 2011, respondents were seeking to demolish the remainder of the wooden
    erosion control structure, construct a new 100-foot long shotcrete seawall below both
    lots, install up to 75 feet of mid-bluff geogrid protection below Lynch's lot and part of
    Frick's lot, and reconstruct the lower section of the stairway.
    The Commission approved a permit allowing only the demolition and
    reconstruction of the seawall and the installation of the mid-bluff geogrid protection. The
    permit included numerous special conditions. Among these conditions were special
    condition 1.a., which precluded reconstruction of the lower section of the stairway, and
    special conditions 2.1 and 3, which limited the permit's duration to 20 years.
    Respondents objected to these special conditions during the application process.
    The permit also included a special condition requiring respondents to record deed
    restrictions in a form approved by the Commission's executive director. The deed
    restrictions stated the Commission approved the permit subject to the special conditions,
    and but for the imposition of the special conditions the project would not be consistent
    with the California Coastal Act of 1976 (Act) (Pub. Resources Code, § 30000 et seq.)1
    and the Commission would not have approved the permit. The deed restrictions also
    stated respondents elected to comply with the special conditions in order to undertake the
    1     Further statutory references are also to the Public Resources Code unless
    otherwise stated.
    3
    development authorized by the permit and, in consideration for the permit's issuance,
    they irrevocably covenanted with the Commission that the special conditions constituted
    covenants, conditions and restrictions running with the land for the duration of the
    permit.
    Respondents filed a petition for writ of mandate challenging the conditions
    precluding them from rebuilding the lower section of the stairway and limiting the
    permit's duration to 20 years. Meanwhile, respondents signed and recorded the required
    deed restrictions, satisfied the other prior-to-issuance permit conditions, obtained the
    permit, and constructed their project.
    The Commission moved for judgment under Code of Civil Procedure section
    1094, arguing respondents were barred from proceeding with their mandamus action
    because they agreed to the permit conditions and accepted the benefit of the permit. The
    superior court denied the motion, finding respondents had not specifically agreed to nor
    necessarily accepted the challenged conditions.
    A few months later, respondents moved for judgment, arguing the condition
    precluding them from rebuilding the lower portion of the stairway was invalid because
    that portion of the project did not require a permit. In addition, respondents argued the
    conditions limiting the duration of the permit to 20 years were invalid because the
    conditions have no nexus to the seawall's impacts and the Commission had no other
    authority to impose them. The superior court substantially agreed with respondents'
    position. The court granted the motion and issued a writ directing the Commission to
    remove the challenged conditions from the permit.
    4
    DISCUSSION
    I
    Waiver by Agreeing to Conditions and Accepting Permit Benefits
    As it did below, the Commission contends on appeal respondents waived their
    right to challenge the permit conditions when they signed and recorded deed restrictions
    agreeing to the permit conditions and then accepted the permit's benefit by constructing
    their project. We agree.
    Generally, a property owner may only challenge an allegedly unreasonable permit
    condition by refusing to comply with the condition and bringing a mandate action to have
    the condition declared invalid. (Building Industry Assn. v. City of Oxnard (1985)
    
    40 Cal.3d 1
    , 3, fn. 1 (Building Industry Assn).) If the property owner complies with the
    condition, the property owner waives the right to legally challenge it. (Ibid.; see
    Hensler v. City of Glendale (1994) 
    8 Cal.4th 1
    , 19, fn. 9 (Hensler); County of Imperial v.
    McDougal (1977) 
    19 Cal.3d 505
    , 510-511; Edmonds v. County of Los Angeles (1953)
    
    40 Cal.2d 642
    , 653; Tahoe Keys Property Owners' Assn. v. State Water Resources
    Control Bd. (1994) 
    23 Cal.App.4th 1459
    , 1484; Rossco Holdings Inc. v. State of
    California (1989) 
    212 Cal.App.3d 642
    , 654-655; Pfeiffer v. City of La Mesa (1977)
    
    69 Cal.App.3d 74
    , 78, modified by statute as stated in Sterling Park, L.P. v. City of Palo
    Alto (2013) 
    57 Cal.4th 1193
    , 1200.) The rule stems from the equitable maxim, "He who
    takes the benefit must bear the burden." (Civ. Code, § 3521; Edmonds v. County of Los
    Angeles, supra, at p. 653; see Peers v. McLaughlin (1891) 
    88 Cal. 294
    , 299 ["[N]o
    person, whether minor or adult, can be permitted to adopt that part of an entire
    5
    transaction which is beneficial, and reject its burdens. [¶] This commanding principle of
    justice is so well established, that it has become one of the maxims of the law."].)
    Respondents contend this rule does not apply to them because they did not, in fact,
    voluntarily agree to the conditions. They objected to the conditions during the
    proceedings before the Commission and then timely filed a petition challenging them.
    They completed the steps necessary to obtain the permit to save their homes. Essentially,
    they contend they submitted to the conditions under protest and duress.2
    Although there are two recognized exceptions to the general waiver rule, neither
    applies here. The first exception, codified in Government Code section 66020, allows a
    developer to comply with a condition under protest and proceed with development while
    simultaneously challenging the condition. (Gov. Code, § 66020, subd. (a) & (d)(2);
    Hensler, 
    supra,
     8 Cal.4th at p. 19, fn. 9; Shapell Industries, Inc. v. Governing Board
    (1991) 
    1 Cal.App.4th 218
    , 241.) However, this exception applies only to conditions
    imposed by local agencies that "divest the developer of money or a possessory interest in
    property." It does not apply to conditions imposed by state agencies or to conditions that
    restrict "the manner in which a developer may use its property." (Sterling Park, L.P. v.
    2       The evidence in the record indicates Frick's home was not in immediate danger at
    the time the Commission approved the permit. To the extent Lynch's home was in
    immediate danger, she alternatively could have applied for an emergency permit from the
    Commission's executive director, but did not. (§ 30624; Cal. Code Regs., tit.14, § 13136
    et seq.) The emergency permit would have essentially maintained the status quo pending
    the outcome of this litigation by allowing her to address the immediate danger without
    giving her any vested rights. (Barrie v. Cal. Coastal Com. (1987) 
    196 Cal.App.3d 8
    , 17-
    18.)
    6
    City of Palo Alto, supra, 57 Cal.4th at p. 1207; Trend Homes, Inc. v. Central Unified
    School Dist. (1990) 
    220 Cal.App.3d 102
    , 111.)
    The second exception applies when an agency imposes new conditions on a permit
    for a later phase of a project already underway. (Building Industry Assn., supra, 
    40 Cal.3d 1
    , 3, fn. 1; Rezai v. City of Tustin (1994) 
    26 Cal.App.4th 443
    , 450; Laguna
    Village, Inc. v. County of Orange (1985) 
    166 Cal.App.3d 125
    , 127-128; McLain Western
    #1 v. County of San Diego (1983) 
    146 Cal.App.3d 772
    , 777.) In such circumstances, the
    developer has already commenced the project, made commitments, and incurred costs,
    which are typically irrevocable decisions. The developer, therefore, has no economically
    practicable option to elect not to accept the subsequent permit and its accompanying
    conditions. (McLain Western #1 v. County of San Diego, supra, at p. 777.)
    At least one appellate court has since limited the second exception to challenges to
    fee conditions, making it largely indistinguishable from the first exception. (Rezai v. City
    of Tustin, supra, 26 Cal.App.4th at p. 451; see Hensler, 
    supra,
     8 Cal.4th at p. 19, fn. 9
    [suggesting after the enactment of Government Code section 66020 the first exception is
    the only exception to the general rule].) Assuming without deciding the second exception
    continues to apply to nonfee conditions, it still does not apply in this case as this case
    does not involve new conditions imposed on a later phase of a project already underway.
    Nonetheless, respondents believe there is or should be an "under protest"
    exception for permit applicants who are opposed to nonfee conditions like those at issue
    in this case and desire to build their projects while simultaneously challenging the
    conditions. We decline to adopt such an exception for several reasons. First, the
    7
    exception would effectively swallow the general rule as many, if not most, permit
    applicants are required to submit to conditions they view unfavorably in order to obtain a
    permit. Second, allowing permit applicants to accept the benefits of a permit while
    challenging its burdens would foster litigation and create uncertainty in land use planning
    decisions. Finally, unlike an invalid fee condition, an invalid nonfee condition is not
    readily quantified and remedied. If an agency learns a nonfee condition is invalid before
    a project is built, the agency may be able to address the impacts underlying the condition
    in an alternate manner. However, if an agency learns a nonfee condition is invalid after a
    project is built, the agency may have no practical means of addressing the underlying
    impacts. Given these policy considerations, we conclude the need for or desirability of
    an under protest exception of the type advocated by respondents is a matter best left for
    legislative resolution.
    The dissent adopts respondents' position without discussing the general waiver
    rule, the currently recognized exceptions, or the wisdom of judicially recognizing a new
    exception for respondents' situation. In addition, the dissent suggests it was appropriate
    for respondents to sign and record documents purporting to establish covenants running
    with the land when respondents did not actually intend to establish such covenants. In
    the dissent's view, the documents' severability clauses not only allow respondents'
    subterfuge, but require us to disregard the documents' contents because the Commission
    did not establish by clear and convincing evidence respondents' actually meant what they
    said in the documents.
    8
    Absent clear, supporting authority, which the dissent has not identified, we are
    unwilling to condone deliberate subterfuge in recorded documents as doing so would
    subvert the documents' noticing function. It is also unnecessary for us to condone such
    conduct as respondents had a reasonable option short of deliberate subterfuge to address
    any immediate danger to their properties pending the outcome of this litigation. (See
    fn. 2, ante.)
    Moreover, we disagree with the dissent's view that respondents' deliberate
    subterfuge amounted to a failure of proof on the Commission's part. The rules governing
    the interpretation of deed restrictions are the same as the rules governing the
    interpretation of contracts. We are required to interpret them in a way that is both
    reasonable and carries out their intended purpose. We are also required to ascertain the
    parties' intent solely from the language of the documents whenever possible. (Costa
    Serena Owners Coalition v. Costa Serena Architectural Com. (2009) 
    175 Cal.App.4th 1175
    , 1199; Alfaro v. Community Housing Improvement System & Planning Assn., Inc.
    (2009) 
    171 Cal.App.4th 1356
    , 1378.) As the language of the documents is not
    ambiguous regarding respondents' intent to establish covenants running with the land in
    favor of the Commission, the language of the documents controls and provides ample
    evidence of respondents' waiver.3
    3      The mere existence of a severability clause cannot establish an ambiguity or every
    provision in every contract with a severability clause would arguably be ambiguous.
    9
    II
    Validity of 20-Year Duration Condition
    A
    Even if respondents had not waived their right to challenge the permit conditions,
    the Commission contends it lawfully limited the duration of respondents' permit. We
    agree with this contention as well.
    B
    The court's role in reviewing Commission decisions is to determine " 'whether (1)
    the [Commission] proceeded without, or in excess of, jurisdiction; (2) there was a fair
    hearing; and (3) the [Commission] abused its discretion.' " (Ross v. California Coastal
    Com. (2011) 
    199 Cal.App.4th 900
    , 921 (Ross).) The Commission abuses its discretion if
    it does not 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. (Ibid.)
    In determining whether the Commission's findings are supported by substantial
    evidence, we examine the whole record and consider all relevant evidence, including
    evidence detracting from the Commission's decision. While we engage in some weighing
    to fairly estimate the worth of the evidence, we do not conduct an independent review of
    the record where we substitute our own findings and inferences for the Commission. It is
    the Commission's role to weigh the preponderance of conflicting evidence and we may
    reverse the Commission's decision only if no reasonable person could have reached the
    same conclusion based on the same evidence. (Ross, supra, 199 Cal.App.4th at pp. 921-
    922.)
    10
    C
    Chapter 3 of the Act contains the standards for determining the permissibility of
    development projects subject to the Act. (§ 30200, subd. (a).) We must liberally
    construe these standards to achieve the Act's purposes and objectives. (§ 30009.)
    Included within the standards is a requirement the Commission find a proposed
    project conforms to the applicable certified local coastal program. (§ 30604 (b).) Here,
    the City's local coastal program policies and implementing regulations applicable to
    seawalls require that a seawall be necessary to protect the principal bluff top structure;
    not cause, promote, or encourage bluff erosion or failure; be visually compatible with the
    character of the surrounding area; and not unnecessarily restrict or reduce the use of or
    access to existing beach width. (Encinitas General Plan and Local Coastal Program Land
    Use Plan, Resource Management Element, Policy 8.5; Encinitas Mun. Code, §30.34.020,
    subd. (C)(2)(b)(2)-(5).)
    In addition, for projects such as respondents, which are located between the
    nearest public road and the sea shoreline, the Act requires that the Commission find the
    project conforms to the Act's public access and public recreation policies. (§ 30604 (c).)
    For seawalls, the Act further requires that the Commission find the seawall is: (1)
    required to serve coastal-dependent uses or to protect existing structures or public
    11
    beaches from erosion; and (2) designed to eliminate or mitigate adverse impacts on local
    shoreline sand supply. (§ 30235.)4
    Here, the Commission imposed the condition limiting the permit's duration
    because it found: (1) the seawall is only required to protect respondents' existing homes
    and is not intended to be a permanent structure accommodating any future redevelopment
    of the homes; (2) the seawall will have long-term impacts on adjacent properties to the
    north and may have long-term impacts on other adjacent properties which are not yet
    fully addressable;5 (3) shoreline protection strategies are evolving, particularly in light of
    climate change and sea level rise; and (4) notwithstanding its theoretical lifespan, the
    seawall will likely need augmentation, replacement, or substantial changes within 20
    years because of sea level rise and the seawall's location in a high hazard area.
    Essentially, the duration limit allows the Commission to revisit the need for the seawall
    4      Section 30235 provides in full, "Revetments, breakwaters, groins, harbor channels,
    seawalls, cliff retaining walls, and other such construction that alters natural shoreline
    processes shall be permitted when required to serve coastal-dependent uses or to protect
    existing structures or public beaches in danger from erosion and when designed to
    eliminate or mitigate adverse impacts on local shoreline sand supply. Existing marine
    structures causing water stagnation contributing to pollution problems and fishkills
    should be phased out or upgraded where feasible."
    5      More particularly, the Commission noted studies have shown wave reflection off
    of a seawall and increased turbulence at its terminus leads to accelerated erosion along
    adjacent, unprotected properties. In this case, such accelerated erosion will likely cause
    the bluff of the unprotected properties to the north to collapse, which could lead to a
    domino effect of additional requests for "much more substantial and environmentally
    damaging seawalls to protect the residences." Although the proposed seawall is designed
    to reduce the impacts to the northern adjacent properties, the impacts cannot be
    eliminated and are especially problematic because "the seawall will be an isolated
    structure in a stretch of largely unprotected shoreline."
    12
    or require further mitigation for its impacts based on a lifespan corresponding to, but not
    exceeding, the remaining anticipated lifespan of respondents' existing homes.
    The Commission's findings are presumed to be supported by substantial evidence
    (Ross, supra, 199 Cal.App.4th at p. 921) and respondents have not directed us to any
    record evidence undermining these findings. While there may be, as respondents and the
    dissent suggest, other means of satisfactorily addressing the project's long-term impacts,
    we may not substitute our judgment for the Commission's. It is the Commission's role to
    weigh the preponderance of any conflicting evidence before it and we may reverse the
    Commission's decision only if a reasonable person could not have reached the same
    conclusion. (Id. at p. 922.)
    Moreover, respondents have not identified nor have we located any authority
    categorically precluding the Commission from imposing a condition limiting the duration
    of a permit. To the contrary, the Commission has broad discretion to impose conditions
    to mitigate the seawall's impacts. (Ocean Harbor House Homeowners Assn. v. California
    Coastal Com. (2008) 
    163 Cal.App.4th 215
    , 242 (Ocean Harbor)). Since the Commission
    imposed the conditions limiting the permit's duration to ensure the seawall's long-term
    impacts do not extend beyond the time period for which the seawall's existence can be
    reasonably justified to protect respondents' existing homes, we conclude the conditions
    fell within the Commission's discretion and were valid.
    The dissent concludes section 30235 precludes the Commission from imposing
    any condition on the seawall except a condition intended to eliminate or mitigate the
    seawall's adverse impacts on the local shoreline sand supply. This same position was
    13
    rejected in Ocean Harbor, supra, 163 Cal.App.4th at p. 241. As the court explained,
    "The language of section 30235 is permissive, not exclusive. It allows seawalls under
    certain conditions: (1) when necessary to protect existing structures and (2) when they
    can be designed to minimize sand loss. The statute does not purport to preempt other
    sections of the Act that require the Commission to consider other factors in granting
    coastal development permits. (E.g., §§ 30604, subd. (c) [the Commission 'shall' make
    findings that the permit complies with public access and recreational policies], 30251
    [scenic and visual qualities of coastal areas 'shall' be considered and protected as a
    resource of public importance], 30240 [environmentally sensitive habitats 'shall' be
    protected].) Nor does the statutory language purport to limit the Commission's duty to
    consider other impacts and discretion to impose conditions to mitigate them.
    Homeowners [offer] no legislative history to support [their] view of the statute.
    Moreover, had it been the Legislature's intent to limit permit conditions, one would
    reasonably have expected direct or express limiting language—e.g., seawalls shall be
    permitted, and the Commission may only impose conditions that mitigate sand loss; or
    seawalls shall be permitted, and the Commission may not impose any conditions other
    than those that mitigate sand loss. [¶] . . . [¶]
    "The Act was enacted as a comprehensive scheme to govern land use planning for
    the entire coastal zone of California. [Citation.] Its broad goals are protection of the
    coastline and its resources, and maximization of public access.
    [Citation.] . . . [¶] . . . Homeowners [provide] no evidence suggesting that the Legislature
    14
    intended to give protection of the sand supply exclusive priority over all of the Act's other
    goals.
    "Finally, even if section 30235 were reasonably susceptible of Homeowners's
    interpretation, we would reject it as inconsistent with the Legislature's express command
    that the Act 'be liberally construed to accomplish its purposes and objectives.'
    [Citations.] [¶] In short, we conclude that section 30235 does not limit the type of
    conditions that the Commission may impose in granting a permit to construct a seawall.
    Rather, the Commission has broad discretion to adopt measures designed to mitigate all
    significant impacts that the construction of a seawall may have." (Ocean Harbor, supra,
    163 Cal.App.4th at pp. 241-242.) We agree with the Ocean Harbor court's analysis,
    which the dissent has not countered.
    The dissent alternatively concludes the conditions limiting the permit's duration
    are invalid because they do not mitigate any adverse impacts. The record does not
    support this conclusion because, as we explained above, the conditions are aimed at
    addressing the project's likely long-term impacts to adjacent, unprotected properties from
    accelerated erosion by ensuring there is an opportunity to revisit the need for the seawall
    or require further mitigation for its impacts at the point in time it will likely require
    augmentation, replacement, or substantial change anyway.
    Finally, the dissent concludes the conditions limiting the permit's duration
    constitute an unconstitutional taking. The dissent's conclusion presupposes a particular
    outcome when respondents apply to renew their seawall in the future. However, the
    outcome of any subsequent application is purely speculative and until the Commission
    15
    reaches a final decision on the application any related takings claim is not ripe for
    adjudication. (Howard v. County of San Diego (2010) 
    184 Cal.App.4th 1422
    , 1430.)
    III
    Validity of Condition Precluding the Rebuilding of the Lower Stairway
    The Commission also contends it lawfully conditioned the permit on the removal
    of the lower stairway from the project plans. We agree once again.
    A
    1
    Preliminarily, the Commission correctly asserts reconstruction of the lower
    stairway is not exempt from the Act's permitting requirements. The Act allows the
    replacement of an existing structure without a permit only if the structure was destroyed
    by a disaster, conforms to applicable zoning requirements, is for the same use, is no more
    than 10 percent larger than its previous size, and is in the same location. (§ 30610,
    subd. (g)(1).) While the City's local coastal program contains similar qualifications, the
    program nonetheless requires a coastal development permit for projects governed by the
    City's coastal bluff overlay regulations.6 (Encinitas Mun. Code, § 30.80.050.)
    Respondents' project is governed by these regulations because the regulations apply to all
    parcels of land within the City where a coastal bluff is present. (Encinitas Mun. Code,
    6      The dissent concludes the coastal bluff overlay zone permit requirements are
    invalid because they conflict with section 30610, subdivision (g)(1). We disagree
    because the application of section 30610, subdivision (g)(1), is expressly subject to
    conformance with local zoning requirements.
    16
    § 30.34.020, subd. (A).) Therefore, to the extent the reconstruction of the lower stairway
    is a replacement project, it is not exempt from the permitting requirements.
    2
    To the extent the reconstruction of the lower stairway is a repair or maintenance
    project, it is also not exempt from the permitting requirements. The Act generally allows
    repair or maintenance activities without a permit if the activities "do not result in an
    addition to, or enlargement or expansion of, the object" of the activities. (§ 30610,
    subd. (d).) However, an exception to the general rule specifies a permit is required for
    "[a]ny repair or maintenance to facilities or structures or work located in an
    environmentally sensitive habitat area, any sand area, within 50 feet of the edge of a
    coastal bluff or environmentally sensitive habitat area, or within 20 feet of coastal waters
    or streams that include: [¶] (A) The placement or removal, whether temporary or
    permanent, of rip-rap, rocks, sand or other beach materials or any other forms of solid
    materials; [¶] (B) The presence, whether temporary or permanent, of mechanized
    equipment or construction materials." (Cal. Code Regs., tit. 14, § 13252, subd. (a)(3);
    accord, Encinitas Mun. Code, § 30.80.050, subd. (C).) As the reconstruction of the lower
    stairway would occur on a coastal bluff edge and would involve both the placement of
    solid materials and the presence of mechanized equipment and construction materials, the
    general rule does not apply and the reconstruction requires a permit.7
    7      The dissent does not address this regulatory exception in concluding no permit is
    required.
    17
    B
    Since the reconstruction of the lower stairway requires a permit, the reconstruction
    must conform to the City's local coastal program. (§ 30604 (b).) The City's local coastal
    program is combined with its general plan and many of the general plan's policies are
    incorporated into the program. Of particular relevance here, the program includes Policy
    1.6, subdivision (a), of the General Plan's Public Safety Element. This policy provides
    "for the reduction of unnatural causes of bluff erosion" by "[o]nly permitting public
    access stairways and no private stairways . . . ." The program also includes Policy 6.7 of
    the General Plan's Circulation Element. This policy discourages and requires the phasing
    out of private access to the beach over the bluffs.
    Respondents contend these general plan policies are inapplicable because the City
    has not passed any regulations implementing them; however, as the Commission points
    out, the City's coastal bluff overlay regulations, which are also part of the City's local
    coastal program, effectively implement these policies by allowing only public access
    facilities on coastal bluffs. (Encinitas Mun. Code, § 30.34.020, subd. (B)(2)(a).) As the
    reconstruction of the lower stairway is inconsistent with both the general plan policies
    and the coastal bluff overlay regulations, it is necessarily inconsistent with the City's
    local coastal program. Accordingly, we conclude the Commission validly precluded
    reconstruction of the stairway as a condition of approving the permit.
    Nevertheless, respondents make much of the fact the City previously approved the
    project, including the stairway, after specifically finding it would not adversely affect the
    City's general plan policies or its municipal code provisions. They suggest it is
    18
    disingenuous for the Commission to disapprove the stairway portion of the project for
    nonconformance with these policies and provisions after the City previously found
    conformance.
    We do not share respondents' concern because, at the time the City approved the
    project, the stairway portion of it was substantially different. As the City described it, "A
    stairway currently exists on the bluff face and will remain. However, portions of the
    stairwell most adjacent to the existing mid-bluff retaining wall and lower seawall will be
    removed as necessary to allow for the installation of the proposed improvements and will
    be replaced to its original configuration with the same materials, dimensions and colors
    once [the installation of the proposed improvements is] completed." In other words, at
    the time the City approved the project, the stairway portion involved only the detachment
    and reattachment of parts of the stairwell as necessary to facilitate other construction.
    The lower portion of stairway had not been destroyed and the City had no occasion to
    consider whether reconstruction of it conformed to the general plan policies and coastal
    bluff overlay regulations disfavoring and requiring the phasing out of private access
    stairways. Thus, contrary to respondents' assertions, we conclude the City's prior
    conformance finding has no bearing on the validity of the Commission's nonconformance
    finding.
    19
    DISPOSITION
    The judgment is reversed. The Commission is awarded its appeal costs.
    MCCONNELL, P. J.
    I CONCUR:
    AARON, J.
    20
    NARES, J., dissenting:
    I respectfully dissent from the majority's decision to reverse the judgment in this
    matter.
    A. Introduction
    I would affirm the trial court's decision striking the California Coastal
    Commission's (Commission's) permit expiration conditions requiring the seawall permit
    to "expire" in 20 years unless the homeowners Barbara Lynch and Thomas Frick (the
    homeowners) reapply for a permit, and the Commission exercises its discretion to grant
    it. Those conditions are contrary to Public Resources Code1 section 30235 of the
    California Coastal Act of 1976 (§ 32000 et seq.) (Coastal Act), as that code section
    mandates issuance of a permit for a seawall so long as it is necessary to protect from
    erosion and is designed to mitigate against adverse impacts. I would further affirm the
    trial court's decision that the conditions are regulatory "takings" barred by the state and
    federal constitutions. I would also affirm the trial court's decision that the condition
    barring repairs to the staircase that provides the homeowners with access to the beach is
    contrary to both the Coastal Act and the City of Encinitas's (the City's) Local Coastal
    Program. Finally, the Commission's assertion that the matter should be remanded to
    allow it to "revise" the conditions is without merit. Because there is no circumstance
    under which the expiration date and stairway denial could be revised to make them
    1     All further undesignated statutory references shall be to the Public Resources
    Code.
    consistent with applicable law, no remand to the Commission for additional review was
    required.
    B. Factual and Procedural Background
    1. The homeowners and their homes
    The homeowners own adjacent residential properties located atop an 80-foot
    oceanfront bluff on Neptune Avenue, in Encinitas, California. The easterly and westerly
    property lines for their homes are Neptune Avenue and the mean high-tide line of the
    Pacific Ocean, respectively. Thus, the properties consist of the bluff top areas improved
    with the homeowners' homes, the steep coastal bluffs improved with a shared staircase
    that goes down to the beach, a sea wall designed to protect the bluffs from erosion while
    mitigating impacts to unprotected adjacent bluffs, and the sandy beach area from the toe
    of the bluff to the mean high-tide line. Similar to many properties along this stretch of
    coast, the shared staircase connects the homes to the beach area below.
    The staircase was built more than 40 years ago, prior to the enactment of the
    Coastal Act in 1976, and its predecessor law, the Coastal Zone Conservation Act of 1972.
    In 1973, the staircase partially collapsed and was reconstructed under a permit issued by
    the County of San Diego2 following certification from the Coastal Zone Conservation
    Commission (the Commission's predecessor agency) that its reconstruction was exempt
    from state permit requirements. Since that time, the homeowners have regularly enjoyed
    the use of their shared staircase, and they have taken actions to maintain it. The staircase
    2      The County of San Diego approved the project because the City of Encinitas was
    not incorporated until 1986.
    2
    is important to the homeowners, because it provides the only direct access to the beach
    portion of their properties. The access afforded by the staircase is especially important
    for Lynch, given her age (close to 80 at the time of the application) and health limitations
    (very high blood pressure).
    In 1986 the homeowners constructed a beach-level seawall and mid-bluff retention
    structure. In 1989, the Commission determined that these structures, along with the
    staircase, were consistent with the Coastal Act and issued a Coastal Development Permit
    (CDP) authorizing them to remain. The CDP issued for these structures had no
    expiration date.
    2. The city approves the stairway repair and new seawall
    In 2003 the homeowners applied to the City of Encinitas for a permit to replace
    the aging seawall with a state-of-the-art, textured concrete seawall system that included
    structural tiebacks and mid-bluff geogrid protection (the Project). The Project was
    designed to protect not just the homeowners' homes, but also the beach-going public.
    The permit application specified that portions of the staircase would be removed and then
    replaced to facilitate construction. As certified by its engineers, the new seawall system's
    useful life would be 75 years.
    In January 2009 the City voted unanimously in favor of the Project. The City
    found that the Project was consistent with the City's Local Coastal Program, and that it
    would "not adversely affect the policies of the Encinitas General Plan or the provisions,
    regulations, conditions or policies imposed by the Municipal Code." As to the staircase,
    the City's resolution of approval states:
    3
    "A stairway currently exists on the bluff face and will remain.
    However, portions of the stairwell most adjacent to the existing mid-
    bluff retaining wall and lower seawall will be removed as necessary
    to allow for the installation of the proposed improvements and will
    be replaced to its original configuration with the same materials,
    dimensions and colors once the construction of the tieback shotcrete
    walls are completed."
    3. The homeowners apply to the Commission for a CDP
    As required by the City's approval, the homeowners filed an application with the
    Commission to amend their existing seawall permit. On December 30, 2009, the
    Commission issued its first of three staff reports for this Project. In this first report (Staff
    Report No. 1), Commission staff recommended approval of a 50-foot seawall below
    Lynch's home, but recommended denial of any seawall to protect Frick's home, denial of
    the entire-mid-bluff structure, and denial of the replacement of any portion of the
    staircase removed to facilitate the seawall's construction. Commission staff
    recommended no expiration date for the seawall; instead, it recommended that, in 30
    years, the Commission re-evaluate the need for any additional mitigation that the
    seawall's impacts on sand loss might require.
    On January 15, 2010, there was a hearing on the homeowners' CDP application.
    However, the Commission staff incorrectly analyzed the homeowners' geological site
    assessment and building plans, and the hearing was continued to a later date to resolve
    the misunderstanding.
    In December 2010, while the homeowners' application for an amended CDP was
    still pending before the Commission, a series of large winter storms occurred in Southern
    California. The storms caused unprecedented flooding and major property damage along
    4
    the coast. As a result, President Obama declared San Diego County to be an emergency
    disaster relief area. On December 24, 2010, in the immediate aftermath of a severe
    storm, the homeowners' bluff suffered a large-scale collapse, followed by additional
    collapses. These collapses destroyed the existing seawall system and the lower portion of
    the staircase.
    As result of these events, the homeowners amended their CDP application, and the
    Commission scheduled a second hearing for June 15, 2011.
    Due to the new conditions caused by the bluff collapses, in its second staff report
    dated June 1, 2011 (Staff Report No. 2), the Commission staff recommended a full-
    length, 100-foot seawall protecting both homeowners' homes, and a mid-bluff structure
    not to exceed 75 linear feet. However, it once again recommended denial of the staircase
    reconstruction. The homeowners had believed that they had successfully compromised
    the staircase dispute by offering a lateral access easement across their beach property at
    the foot of the bluff to the public in exchange for the Commission's approval of the
    staircase reconstruction. Like Staff Report No. 1, Staff Report No. 2 did not include or
    mention a CDP expiration date for the seawall. The Commission staff merely proposed a
    requirement that the homeowners and the Commission would re-evaluate the need for
    any additional mitigation in 20 years (as opposed to the original 30).
    The hearing on the homeowners' CDP application took place on June 15, 2011.
    However, the Commission continued the hearing to allow itself further time to consider
    the homeowners' arguments and evidence.
    5
    On July 21, 2011, Commission staff published its third and final report (Staff
    Report No. 3), the report that the Commission ultimately adopted in support of its permit
    decision. Although just seven weeks had elapsed since the Commission's publication of
    Staff Report No. 2, Staff Report No. 3 eliminated the idea of reevaluating the need for
    additional mitigation after 20 years and instead proposed that the seawall permit expire
    after 20 years from the date of approval. The homeowners would be entitled to have
    seawall protection for only 20 years, after which they would have to remove the seawall
    or reapply for a new CDP to keep it (Special Conditions 2 and 3). The expiration
    requirement was justified as a means of protecting the Commission's "future shoreline
    planning options," in the event future political and legal changes (i.e., legislation or
    judicial decisions) allowed the Commission to outright ban seawalls. Under Special
    Condition 1.a., the staff also recommended outright denial of the repair of the lower
    portion of the stairway.
    Staff Report No. 3 also outlined the adverse impacts of seawalls generally as
    follows: (1) physical occupation of beach area, (2) long-term beach loss, (3) entrapment
    of bluff sand, and (4) impacts to unprotected adjacent bluffs. With regard to the specific
    impacts of the project, Staff Report No. 3 found that general impacts (1) and (2) did not
    apply because the seawall "will open up approximately 425 sq. ft. of new beach area."
    General impact (3) was mitigated through a $31,542 payment and general impact (4) was
    mitigated through engineering and design of the seawall.
    The homeowners objected to the seawall and the stairway conditions, both in
    written objections submitted to the Commission prior to the hearing on August 10, 2011,
    6
    and in oral testimony at the hearing itself. The Commission nevertheless adopted Staff
    Report No. 3, requiring the seawall permit to expire in 20 years and denying the stairway
    reconstruction. The denial of the right to reconstruct the homeowners' stairway resulted
    in the homeowners not being able to access their beach properties, even though they had
    previously granted an easement to the public across those properties.
    4. The petition for writ of mandate
    On October 7, 2011, the homeowners timely filed a petition for writ of mandate.
    In November 2011 the homeowners paid $31,542 in sand mitigation fees and satisfied the
    myriad other conditions precedent required to obtain the Commission's CDP, including
    execution of deed restrictions recognizing the objected-to seawall and stairway
    conditions. On December 6, 2011, the Commission formally issued the seawall permit,
    and the homeowners proceeded with their Project.
    On October 29, 2012, the Commission filed a motion for judgment on the
    homeowners' petition on the grounds that the homeowners had waived their right to
    challenge the seawall and stairway conditions because they had executed the deed
    restrictions. The court found no waiver and denied the motion. The court held that the
    homeowners "have neither specifically agreed to the conditions nor failed to challenge
    their validity."
    Thereafter, the homeowners filed a motion for judgment on the petition, arguing
    that the seawall and stairway conditions are unlawful. The trial court agreed, holding that
    the Commission's denial of the stairway violated the City's Municipal Code and the
    7
    Coastal Act and that the Commission's imposition of the 20-year expiration date on the
    seawall violated the Coastal Act and was unconstitutional.
    As to the stairway, the trial court found:
    "Petitioners are entitled to reconstruct their beach stairway pursuant
    to Encinitas Municipal Code and the state Coastal Act. Special
    Condition (1)(a) impermissibly required Petitioners to delete the
    stairway reconstruction from their building plans before Respondent
    would issue a CDP for the construction of a seawall. This condition
    is invalid as the Encinitas Municipal Code and Local Coastal
    Program allow Petitioners to reconstruct their stairway which was
    destroyed by a 'disaster' as that term is defined in Public Resources
    Code § 30610(g). In imposing Special Condition 1(a), Respondent
    did not proceed in the manner required by law and its decision was
    not supported by substantial evidence."
    As to the expiration date and reapplication conditions, the trial court found:
    "Petitioners are also entitled to a CDP without an expiration date,
    and the re-application requirement, imposed through Special
    Conditions 2 and 3. Respondent had a duty to grant the CDP for the
    seawall and was not authorized to impose an arbitrary expiration
    date. Public Resources Code § 30235 requires Respondent to grant a
    CDP to protect existing structures in danger from erosion. In
    discharging this affirmative duty, Respondent may not impose
    arbitrary and unreasonable conditions; only conditions that have a
    nexus (i.e., logical link) to a specified adverse impact, and then only
    when such conditions are proportional to the impact, may be
    lawfully and constitutionally imposed. Special Conditions 2 and 3
    do not meet these criteria and are regulatory takings. By imposing
    Conditions 2 and 3, Respondent failed to proceed in the manner
    required by law and its findings were not supported by substantial
    evidence."
    The court also held that that the 20-year expiration condition was unnecessary
    because "the government always has the power to force repair or change should the
    seawall become unsafe. It may proceed by code enforcement, inverse condemnation, or
    many other legal practices to protect against a dangerous condition. . . . [T]he 20 year
    8
    limit is simply a power grab designed to obtain further concessions in 20 years, or force
    the removal of seawalls at a later time . . . ."
    DISCUSSION
    A. Standard of Review
    Here, two standards of review govern our determination of whether the court erred
    in finding in favor of the homeowners on their petition for writ of mandate.
    As to the issue of whether the homeowners waived their right to challenge the
    seawall and stairway conditions, "'[t]he burden . . . is on the party claiming a waiver of a
    right to prove it by clear and convincing evidence that does not leave the matter to
    speculation, and "doubtful cases will be decided against a waiver" [citation].' [Citations.]
    The waiver may be either express, based on the words of the waiving party, or implied,
    based on conduct indicating an intent to relinquish the right." (Waller v. Truck Ins.
    Exchange, Inc. (1995) 
    11 Cal.4th 1
    , 31.)
    On the issue of whether the conditions imposed were unlawful, because the facts
    are undisputed, our review is de novo. (Silvers v. Board of Equalization (2010) 
    188 Cal.App.4th 1215
    , 1219.) "'A court does not, in other words, defer to an agency's view
    when deciding whether a regulation lies within the scope of the authority delegated by the
    Legislature.'" (Schneider v. California Coastal Com. (2006) 
    140 Cal.App.4th 1339
    ,
    1344.)
    B. Waiver
    I would conclude that the Commission did not prove by clear and convincing
    evidence that the homeowners waived their right to challenge the permits conditions.
    9
    In order to preserve the right to challenge permit conditions in court, the permit
    applicant must first inform the Commission of his or her objections, either at or prior to
    the Commission's hearing on the permit:
    "Any aggrieved person shall have a right to judicial review of any
    decision or action of the commission by filing a petition for a writ of
    mandate in accordance with Section 1094.5 of the Code of Civil
    Procedure, within 60 days after the decision or action has become
    final. [¶] For purposes of this section . . . an 'aggrieved person'
    means any person who, in person or through a representative,
    appeared at a public hearing of the commission, local government,
    or port governing body in connection with the decision or action
    appealed, or who, by other appropriate means prior to a hearing,
    informed the commission, local government, or port governing body
    of the nature of his concerns or who for good cause was unable to do
    either. 'Aggrieved person' includes the applicant for a permit and, in
    the case of an approval of a local coastal program, the local
    government involved." (§ 30801.)
    Before the August 10, 2011 hearing on their CDP, the homeowners submitted
    written objections to the seawall and stairway conditions. The homeowners also
    appeared at the Commission hearing to object to those conditions. The homeowners
    thereafter filed a writ of mandate to challenge the conditions in court. (§ 30801.)
    Thus, the homeowners followed all the legal requirements for challenging the
    CDP conditions, and put the Commission on notice of their objections and their intent to
    challenge them in court. There was nothing more that the Coastal Act, or any other
    provision of law, required of the homeowners in order to preserve their right to challenge
    the conditions.
    The Commission contends, and the majority has concluded, that the homeowners
    waived their right to challenge the conditions by executing deed restrictions
    10
    acknowledging the permit conditions so that they could proceed with necessary repairs.
    However, simply acknowledging the permit restrictions is not the equivalent of agreeing
    to them. As stated, ante, at every stage of the proceedings, the homeowners objected to
    the restrictions. Indeed, the homeowners filed their writ before the Commission issued
    the CDP. Moreover, the homeowners have not taken any actions to abide by the
    conditions. As the majority acknowledges, without complying with the permit
    conditions, there can be no waiver. (Pfeiffer v. City of La Mesa (1977) 
    69 Cal.App.3d 74
    ,
    78.)
    The Commission points to the following language in the deed restrictions to
    support its waiver argument:
    "Owner(s) . . . hereby irrevocably covenant[] with the Commission
    that the Special Conditions (shown in Exhibit B hereto) shall at all
    times on or after the date on which this Deed Restriction is recorded
    constitute for all purposes covenants, conditions and restrictions on
    the use and enjoyment of the Property."
    However, agreeing that the permit conditions will attach to the property's deed is
    not the same as complying with the condition. The purpose of recording the deed
    restrictions is simply to put possible future purchasers on notice that the restrictions exist.
    It was not "subterfuge" by the homeowners to record those restrictions, as the majority
    contends, while still maintaining the right to challenge them. Indeed, the deed
    restrictions contemplate the possibility that they might be challenged in the future and, in
    whole or in part be invalidated by including a severability clause that provides, "If any
    provision of these restrictions is held to be invalid, or for any reason becomes
    unenforceable, no other provision shall be affected or impaired."
    11
    Last, the Commission asserts the homeowners waived their right to challenge the
    permit conditions because they executed the deed restrictions without noting they were
    doing so "under protest." However, as the Commission concedes, there is no provision in
    the Coastal Act for accepting a permit "under protest."
    The Commission asserts the homeowner's action is barred by the Mitigation Fee
    Act. (Gov. Code, § 66000 et seq.) This contention is unavailing.
    The Mitigation Fee Act was enacted to cure a problem facing developers: They
    could only challenge fees imposed as a condition of development if they refused to pay
    the fees. (Shapell Industries, Inc. v. Governing Board (1991) 
    1 Cal.App.4th 218
    , 241.) If
    they refused to pay the fees, they could not obtain a building permit. (Ibid.) The
    Legislature enacted the Mitigation Fee Act to "provide[] a procedure whereby a
    developer could pay the fees under protest, obtain the building permit, and proceed with
    the project while pursuing an action to challenge the fees." (Ibid.) However, the
    Mitigation Fee Act only applies to local agencies. (Gov. Code, § 66020, subd. (a).)
    The Commission asserts that the Mitigation Fee Act bars the homeowners' action
    because they did not accept the permit restrictions "under protest." However, the
    Mitigation Fee Act has no application here as the homeowners are not challenging any
    fees and do not seek money damages from the Commission.
    C. The Seawall Condition
    1. Development of the Coastal Act
    The Coastal Act's predecessor, the California Coastal Zone Conservation Act of
    1972 (former § 27000 et seq.), an initiative measure, established regional control over
    12
    coastline development. "The Act created 6 regional commissions with jurisdiction over a
    'permit area' extending from 1,000 yards inland to the seaward limit of the state's
    jurisdiction. Within the permit area, the regional commission controlled all development
    by the issuance of permits." (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real
    Property, § 861, p. 1031.) The California Coastal Zone Conservation Act was superseded
    in 1976 by the Coastal Act. (12 Witkin, supra, Real Property, § 861, p. 1032.)
    The Coastal Act sets forth policies regarding public access, recreation, marine
    environment, land resources, new development, and industrial facilities. (12 Witkin,
    supra, Real Property, § 861, p. 1032.)
    "The Coastal Act assigns chief responsibility for regulating the use and
    development of the 'coastal zone' [citation] to a 15-member California Coastal
    Commission." (12 Witkin, supra, Real Property, § 862, p. 1032.) "A local government
    located within the coastal zone must prepare a local coastal program for the portion of the
    coastal zone that is within its jurisdiction [citation], which is presented to the
    Commission for certification." (Id. at p. 1033.)
    "Coastal development permits are required for most developments in the coastal
    zone." (12 Witkin, supra, Real Property, § 863, p. 1033.) Development permits are
    issued by local agencies whose local coastal programs have been certified, or in some
    cases, such as this case, by the Commission. (Id. at p. 1034.)
    13
    2. The seawall's 20-year expiration condition imposed by the Commission is
    contrary to section 30235 of the Coastal Act
    The Coastal Act provides that a seawall "shall be permitted when required . . . to
    protect existing structures . . . in danger from erosion and when designed to eliminate or
    mitigate adverse impacts on local shoreline sand supply." (§ 30235, italics added.) Thus,
    the permitting of a seawall is mandatory when two conditions are present: (1) an existing
    structure is in danger from erosion, and (2) the seawall is designed to eliminate or
    mitigate adverse impacts on the local shoreline sand supply. There is no dispute that both
    of those conditions are present in this case.
    As the majority notes, "the Commission has broad discretion to adopt measures
    designed to mitigate all significant impacts that the construction of a seawall may have."
    (Ocean Harbor House Homeowners Assn. v. California Coastal Com. (2008) 
    163 Cal.App.4th 215
     (Ocean Harbor House).) In that case the Court of Appeal upheld an in-
    lieu fee on homeowners who sought a seawall permit, on the grounds that the fee
    mitigated for identified impacts caused by the seawall. (Id. at pp. 240-242.)
    Unlike the mitigation fee in Ocean Harbor House, the permit-expiration condition
    in this case is not a mitigation condition. The permit expiration does not mitigate any
    impacts the seawall may cause in the future. Rather, it merely gives the Commission the
    option to deny the permit outright in 20 years.
    The majority concludes that the seawall's 20-year expiration condition is valid as it
    is "aimed at addressing the project's likely long-term impacts to adjacent, unprotected
    properties." However, as the Commission itself noted, the impact on adjacent properties
    14
    was already mitigated through engineering and design of the seawall. In the
    Commission's words, the seawall "has been designed and conditioned to mitigate its
    impact on coastal resources such as scenic quality, geologic concerns, and shoreline sand
    supply."
    However, the expiration date on the seawall condition is not intended to address
    these impacts. Rather, as the Commission has stated, the intent behind the expiration
    date is "to allow for potential removal of the approved seawall." As the Commission's
    staff report explains:
    "To ensure that this project does not prejudice future shoreline
    planning options, including with respect to changing and uncertain
    circumstances that may ultimately change policy and other coastal
    development decisions (including not only climate change and sea
    level rise, but also due to legislative change, judicial determinations,
    etc.), staff recommends that this approval be conditioned for a
    twenty-year period. . . . [¶] . . . Of course it is possible that physical
    circumstances as well as local and/or statewide policies and
    priorities regarding shoreline armoring are significantly unchanged
    from today, but it is perhaps more likely that the baseline context for
    considering armoring will be different . . . ."
    Thus, as the Commission makes clear, the expiration date is intended to give the
    Commission the right in 20 years to deny the homeowners the continued use of a seawall
    even though it meets design requirements. Because the seawall's condition states that the
    seawall permit would "expire" after 20 years if the Commission did not agree to a new
    seawall upon the homeowner's application, that permit condition is directly contrary to
    the mandatory language of section 30235.
    This does not mean the City or Commission cannot review the effects of the
    seawall in the future. The 20-year seawall permit expiration is unnecessary because, with
    15
    or without a permit expiration, both the City and the Commission have the power to
    evaluate the seawall's condition at any time, and to address any actual or potential threat
    to life or property that the seawall may pose in the future. As the trial court observed, the
    City and the Commission have the power to force repair or change should the seawall
    become unsafe, or in need of repair or change. There are many other avenues by which
    the government may proceed, such as code enforcement or inverse condemnation. The
    Commission always has the power to implement reasonable regulations related to the sea
    wall so long as they do not conflict with the Coastal Act.
    The Commission also asserts the condition is necessary to "ensure [the seawall's]
    consistency with the City's local coastal program." However, the policies to which the
    Commission cites all address the importance of seawall design. (See Encinitas Mun.
    Code, §§ 30.34.020 (B) (8) & (C)(2)(b).) None of the local program provisions the
    Commission cites address nondesign requirements, like the permit-expiration condition.
    The Commission also contends that requiring the homeowners to apply for a new
    seawall permit allows them to assess whether the homeowners still need the seawall and
    whether there are possible alternatives. However, the record contains no evidence to
    substantiate the Commission's concern that the seawall may no longer be needed. In fact,
    as the Commission acknowledges "[b]luffs in this area are subject to a variety of erosive
    forces and conditions" that will only worsen.
    The Commission also asserts that it needs the expiration condition in case the
    homeowners redevelop the bluff tops in a way that no longer justifies the need for a
    seawall, for example, if new structures are set far enough back from the bluff edge.
    16
    Again, the Commission seeks to add limiting language to section 30235 where none
    exists. Section 30235 does not say that a homeowner in need of bluff protection is
    entitled to a seawall "until such time as redevelopment of the bluff-top makes one
    unnecessary." The statute entitles the homeowners to a seawall so long as there is a need
    for it, and there is mitigation for impacts on sand supply. Moreover, there is no evidence
    in the record that the homeowners will seek to redevelop their properties around the time
    that the seawall permit is set to expire. Indeed, it is exceedingly unlikely that a
    homeowner would time an application for redevelopment at the same time as expiration
    of the seawall permit.
    3. The seawall condition is unconstitutional
    Even if the permit-expiration requirement was not barred by statute, it would
    constitute an unconstitutional condition under both the state and federal Constitutions
    because it is a "taking" of the homeowners' property.
    The California Constitution guarantees as "inalienable" the rights of "acquiring,
    possessing, and protecting property, and pursuing and obtaining safety, happiness, and
    privacy." (Cal. Const., art. I, § 1, italics added.) Similarly, the takings clause of the 5th
    Amendment to the United States Constitution protects a homeowner's use and protection
    of its property. (Nollan v. Cal. Coastal Com. (1987) 
    483 U.S. 825
    , 833-834 (Nollan).)
    The right to use, enjoy, and protect property is not a government privilege, but a
    fundamental, constitutional right. (Id. at p 833, fn. 2 ["[T]he right to build on one's own
    property—even though its exercise can be subjected to legitimate permitting
    requirements—cannot remotely be described as a 'governmental benefit.'"].) A person's
    17
    property rights exist regardless of the regulatory restrictions that subsequently burden
    those rights. (Nectow v. Cambridge (1928) 
    277 U.S. 183
    , 187; Euclid v. Ambler Realty
    Co. (1926) 
    272 U.S. 365
    , 384.) A zoning change or governmental dictate that interferes
    with such continued use is unconstitutional. (Hansen Brothers Enterprises, Inc. v. Board
    of Supervisors (1996) 
    12 Cal.4th 533
    , 552 ["'The rights of users of property as those
    rights existed at the time of the adoption of a zoning ordinance are well recognized and
    have always been protected."']
    The right to continue a particular use of land is a "property right." A permitting
    agency cannot, except under narrow circumstances, revoke its approval once it is granted.
    (Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 
    23 Cal.App.4th 376
    , 391, fn. 5.) A lawfully issued permit may only be revoked where, after
    notice and a fair hearing on revocation, the agency has determined that the permittee's use
    has created a nuisance, or the permittee has otherwise violated the law or failed to comply
    with the permit's conditions. (Community Development Com. v. City of Fort Bragg
    (1988) 
    204 Cal.App.3d 1124
    , 1131-1132 ["A municipality's power to revoke a permit is
    limited" and "may not be revoked arbitrarily without cause," and "notice and hearing
    must be afforded a permittee prior to revocation of a use permit".]; Gov. Code, § 65905.)
    None of those situations exist in this case.
    These constitutional rights and property interests are protected in the permitting
    process because individuals in that situation are particularly vulnerable to government
    pressure to give them up. (Koontz v. St. Johns River Water Mgmt. Dist. (2013) 
    133 S.Ct. 2586
    , 2594-2595 ["[L]and-use permit applicants are especially vulnerable
    18
    to . . . coercion . . . [and] [e]xtortionate demands."].) The unconstitutional conditions
    doctrine provides that "'the government may not deny a benefit to a person because he
    exercises a constitutional right.'" (Id. at p. 2594.)
    The United States Supreme Court applied the unconstitutional conditions doctrine
    in the land-use context in Nollan, supra, 
    483 U.S. 825
    , and Dolan v. City of Tigard
    (1994) 
    512 U.S. 374
    . These cases hold that the takings clause allows the government to
    take a property interest as a condition of permit approval, but only if the condition bears
    an essential nexus and "rough proportionality" to adverse impacts caused by the proposed
    project. (Nollan, 
    supra,
     483 U.S. at p. 837 [requiring an "essential nexus" between a
    permit condition and the adverse impacts caused by the proposed project); Dolan, 
    supra,
    512 U.S. at p. 391 [requiring "rough proportionality"].) Otherwise, the condition is
    unconstitutional. (Dolan, at p. 385.)
    Here, the Commission's condition that the seawall permit expires in 20 years
    unconstitutionally forces the homeowners to waive their rights and property interests
    without any nexus or "rough proportionality" to potential adverse impacts caused by the
    seawall.
    The condition forces the homeowners to waive their present and future rights to
    protect their homes, as guaranteed to them by section 30235 of the Coastal Act and the
    California Constitution. Despite substantial evidence establishing that the homes will
    continue to be threatened, the condition effectively extinguishes their right to protect their
    properties, beginning in 2031. The fact that the homeowners may apply to the
    Commission "to either remove the seawall in its entirety, change or reduce its size or
    19
    configuration, or extend the length of time the seawall is authorized" does not guarantee
    their property rights because the Commission may decide to deny the permit. Indeed, the
    Commission has stated that the reason for the condition is "to allow for potential removal
    of the approved seawall."
    Section 30235, along with the constitutional right to protect one's property,
    mandate authorization of the seawall to protect against erosion. Unless the seawall
    became a nuisance in 2031, and the homeowners were given notice, a fair hearing and
    adequate findings to justify the seawall removal, the Commission would have no basis for
    revoking the seawall.
    The expiration condition in essence requires the homeowners to convey to the
    Commission a negative easement across their bluffs. A negative easement imposes
    "'specific restrictions on the use of the property'" it covers. (Wooster v. Department of
    Fish & Game (2012) 
    211 Cal.App.4th 1020
    , 1026.) It "prevent[s] acts from being
    performed on the property [and] may be created by grant, express or implied." (Wolford
    v. Thomas (1987) 
    190 Cal.App.3d 347
    , 354.) A negative easement is "property" within
    the meaning of the takings clause, and when the government subjects land to a negative
    easement in its favor, it must pay for it. (Southern Cal. Edison Co. v. Bourgerie (1973) 
    9 Cal.3d 169
    , 172-173.)
    Expiration of the seawall permit in 2031 extinguishes the homeowners' right to
    their seawall and gives the Commission the discretion to require the seawall's removal.
    Indeed, as discussed, ante, the Commission's express intent behind the expiration
    condition is to allow for removal of the seawall. The Commission has made clear its
    20
    opposition to seawalls in general, and the homeowners' seawall in particular. When the
    homeowners' seawall permit expires, the Commission will have a negative easement over
    the homeowner's bluff, without paying for it as required by the takings clause.
    The condition also requires the homeowners to pay another CDP application fee to
    the Commission, along with additional engineering and consultant fees, when the permit
    expires in order to again prove their right to protect their homes. These are monetary
    obligations imposed on the homeowners that are unrelated to any adverse impacts that the
    seawall might have on sand supply loss. Money is property under the takings clause, and,
    in the permitting context, monetary exactions must be shown to have an essential nexus
    and rough proportionality to a project's impact. (Koontz, 
    supra,
     133 S.Ct. at p. 2603.)
    The Commission demands relinquishment of the homeowners' rights and interests
    without making the constitutionally required connection to the impact of the seawall.
    The Commission does not identify any adverse impacts attributable to the seawall that
    justify waiver of their constitutional and statutory rights. The Commission does not
    identify what adverse impacts justify dedication of a negative easement across their
    bluffs. The Commission also does not identify what adverse impacts justify extra
    monetary costs imposed on the homeowners.
    In sum, for all the foregoing reasons, the permit-expiration requirement is an
    unconstitutional condition.
    D. The Stairway Prohibition
    Both City's Local Coastal Program and the Coastal Act provide that "any
    structure . . . destroyed by a disaster" may be replaced and is exempt from the
    21
    requirement of a CDP. (Encinitas Mun. Code, § 30.80.050, subd. (E); Pub. Resources
    Code, § 30610, subd. (g).) A "disaster" is defined as "any situation in which the force or
    forces which destroyed the structure to be replaced were beyond the control of its owner."
    (§ 30610, subd. (g)(2)(A).)
    Here, severe winter storms in December 2010 caused the bluff to collapse and take
    down part of the homeowners' stairway. The forces that caused the stairway's partial
    destruction were beyond the homeowners' control. Further, even if the homeowners'
    stairway reconstruction did not qualify for the "disaster" exemption, it would still qualify
    as a "repair" activity that is exempt from the CDP requirement.
    Both the Encinitas Municipal Code and the Coastal Act provide that "no coastal
    development permit shall be required" for "[r]epair and maintenance activities to existing
    structures or facilities that do not result in an addition to, or enlargement or expansion of
    the structures or facilities . . . ." (Encinitas Mun. Code, § 30.80.050, subd. (C); Pub.
    Resources Code, § 30610, subd. (d).) The replacement of less than 50 percent of a
    structure is considered a "repair" of that structure entitled to CDP exemption. (Cal. Code
    of Regs., tit. 14, § 13252, subd. (b).) The majority does not dispute that the staircase
    constitutes a "structure" under the statute and the municipal code, or that the homeowners
    were seeking to repair less than 50 percent of that structure. Thus, pursuant to both the
    municipal code and the Coastal Act, no CDP was required for the repairs to the staircase.
    The Commission asserts, and the majority concludes, that the application of the
    City's "Coastal Bluff Overlay Zone" (CBOZ) regulations exclude the homeowners'
    22
    stairway from the benefits of the exemptions under the Coastal Act and the City's Local
    Coastal Program. This contention is unavailing.
    The CBOZ does not exclude the homeowners' stairway from the disaster or repair
    exemptions. The CBOZ states that "[e]xisting legal structures . . . on the face of a bluff
    may remain unchanged" and may be maintained. (Encinitas Mun. Code, § 30.34.020,
    subd. (B)(4).)
    The Commission also cites the City's "structural nonconformity" regulations for
    the proposition that they can only be repaired or maintained, but not replaced. Assuming
    that the stairway meets the definition of a "structural nonconformity," its reconstruction is
    still entitled to CDP exemption. Encinitas Municipal Code section 30.76.050,
    subdivision (C) states repair and maintenance may be performed on a structural
    nonconformity "so long as the nonconformity is not enlarged, relocated or increased in
    intensity . . . ."
    Finally, to the extent the City's Local Coastal Program and general policy
    statements could be interpreted to prohibit stairway reconstruction, they would be invalid
    under the Coastal Act. Section 30005, subdivision (a), allows a city to impose stricter
    "conditions, restrictions, or limitations," but only if they are "not in conflict with this act."
    (See Yost v. Thomas (1984) 
    36 Cal.3d 561
    , 572-573 [local coastal programs must
    conform to the Coastal Act]; McAllister v. California Coastal Com. (2008) 
    169 Cal.App.4th 912
    , 930, fn. 9 [same].) Section 30610, subdivision (g) provides that "no
    coastal development permit shall be required pursuant to this chapter for the following
    23
    types of development and in the following areas: [¶] . . . [¶] [t]he replacement of any
    structure . . . destroyed by a disaster."
    The Commission asserts that this exemption is limited by the following sentence
    in section 30610, subdivision (g) that states "[t]he replacement structure shall conform to
    applicable existing zoning requirements." (§ 30610, subd. (g)(1).) The Commission
    interprets this sentence to mean "the replacement of a structure destroyed by a disaster
    also must conform to applicable zoning requirements." However, as that sentence makes
    clear, it is the "structure," not its replacement, that must conform to applicable zoning
    requirements. Thus, it is the structure's design, aesthetics and dimensions that must
    comply with local zoning regulations. However, no zoning regulation can be
    contradictory to the law governing the question of whether a particular replacement
    project is entitled to exemption. As is made clear in section 30610, subdivision (g)(1),
    the stairway repair project is exempt.
    Moreover, as the trial court correctly found, the City of Encinitas's land use
    policies, specifically, policy 1.6 of the Public Safety Land Use Element and Circulation
    Policy 6.7, discouraging structures on bluffs, explicitly refer to "new" structures and
    private accessways. Thus, they do not apply to repairs to existing structures.
    E. The Trial Court's Order that the Commission Remove the Conditions
    The Commission asserts that rather than striking the offending conditions from the
    homeowners' permits, the court should have remanded the matter to allow it to "revise or
    to consider revisions to the conditions." The contention is unavailing.
    24
    Because the court exercised its independent judgment in striking down the
    offending conditions, it was not required to remand the matter for reconsideration.
    (Levingston v. Retirement Board (1995) 
    38 Cal.App.4th 996
    , 999-1001.) Because there
    is no circumstance under which the expiration date and stairway denial could be revised
    to make them consistent with applicable law, no remand to the Commission for additional
    review was required.
    For all the foregoing reasons, I would affirm the judgment of the trial court
    striking the seawall permit expiration and stairway conditions.
    NARES, J.
    25