ENCINITAS — A pair of Leucadia residents are petitioning the California Supreme Court for a re-hearing of the case challenging the Coastal Commission’s restrictions on the seawall of their Neptune Avenue homes.
The law firm representing Barbara Lynch and Thomas Frick in Lynch v. California Coastal Commission filed a petition to rehear the case on July 21. The Supreme Court will determine by October whether it will grant the request.
Frick and Lynch sought to challenge the regulatory agency’s imposition of a 20-year expiration date on their permit for a seawall they built after the old structure collapsed during a 2010 storm, as well as the commission’s decision to deny the families a permit to reconstruct a private staircase from their properties to the beach below.
The court ruled in a 7-0 decision July 6 that the owners forfeited their right to sue when they constructed the seawall under those conditions. As a result, the court sidestepped some of the larger issues at play in the case.
But an attorney representing Frick and Lynch said the re-hearing petition focuses on the staircase, which was never constructed because the commission denied the permit.
“We believe the ruling doesn’t apply to the stairway because the stairway was denied, so there was no forfeiture,” said attorney John Groen of the Pacific Legal Foundation, which represented the families.
Groen said the re-hearing petition also focuses on the fact that attorneys did not submit briefs on the issue of “equitable forfeiture,” which was the doctrine under which the court ruled against the families.
“We briefed the court on the concept of waiver of judicial review, but nobody briefed the equitable forfeiture issue,” Groen said.
The Supreme Court rarely grants rehearing petitions. Between 2006 and 2015, the court received 328 such petitions, granting three.
The families were applying for a permit to build a 100-foot-tall, state-of-the-art concrete seawall to replace their aging wooden one and rebuild the private staircase from their homes to the beach below, after storms in 2010 largely wiped out both structures.
The city of Encinitas approved their applications, but the Coastal Commission stepped in and denied the permit for the staircase and would only allow the families to rebuild the wall with the 20-year stipulation, to which the families agreed.
The Coastal Commission argued that by agreeing to the conditions, the families waived their rights to sue. The families contend they signed the documents under protest and duress, as not signing them would delay the construction of the seawall and put their homes in peril.
