Supreme Court ponders whether rights were waived when building wall

The state Supreme Court will decide the fate of the case on an Encinitas seawall in May. File photo

The state Supreme Court will decide the fate of the case on an Encinitas seawall in May. File photo

ENCINITAS — A case that was believed to have potential far-reaching implications on the state Coastal Commission’s authority to regulate seawalls might have far less of an impact, if the state’s high court’s line of questioning gives any indication.

Thomas Frick and Barbara Lynch, neighbors along Neptune Avenue in Leucadia, are challenging whether the commission has the authority to impose a 20-year expiration date on a permit for a new seawall the pair built after the old structure collapsed during a 2010 storm.

But the state Supreme Court, which heard arguments in the case Lynch vs. California Coastal Commission on May 4, focused its questions more on whether the property owners waived their rights to sue the state body when they built their new seawall.

If the Supreme Court chooses to rule that the neighbors waived their rights to sue, the body would sidestep the more global issue of the commission’s right to impose time limits.

The Pacific Legal Foundation, which advocates for property rights and is representing the families pro bono, argued that the families accepted the waiver under protest and duress, as not signing them would delay the construction of the seawall and put their homes in peril.

But attorneys representing the state argued that the homeowners could have applied for an emergency permit and asked the commission to preserve their right to sue.

The case has garnered statewide attention and pitted environmental activists, who believe the state’s regulatory authority over the structures protects beaches from being depleted of sand, against private property owners who say the state has encroached upon their rights by imposing time limits on such permits.

The Supreme Court in 2014 voted to take the rare step of reviewing the case after the Fourth District Court of Appeal ruled earlier that year in favor of the Coastal Commission when it reversed a lower court’s decision in the case.

Superior Court Judge Earl Maas originally ruled in 2013 that the state commission overstepped its authority when it applied the clause requiring Lynch and Frick to reapply for a permit for the seawall for the families’ homes on Neptune Avenue after 20 years.

The appeals court decision also reversed Maas’ reversal of the Coastal Commission’s decision to deny the families a permit to reconstruct a private staircase from their properties to the beach below.

Justices on May 4 appeared to lean toward the state regarding the issue of whether the time clause represented a taking of the private property owners’ rights.

Deputy Attorney General Hayley Peterson, representing the commission, said that after the permit expires, there’s no reason to assume the agency would not approve a new permit.

“And if they do, that’s the time to litigate a taking,” Justice Kathryn M. Werdegar said.

“The possibility that the commission may deny this … does not constitute a taking today.”

But Werdegar acknowledged that onerous conditions that diminish the value of the homes could be considered a government take.

Attorney John Corn, representing both families, has argued that the uncertainty over the future of the seawall could have that type of impact on the value of the neighbors’ properties.

The Supreme Court will issue a decision in 90 days.

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