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Lawyers looks to Supreme Court on Encinitas seawall case

ENCINITAS — The California Supreme Court could be the ultimate arbiter of whether the state Coastal Commission has the authority to impose time limits on privately erected seawalls along the state’s coastline.

The legal foundation representing two families who have sued the Coastal Commission over this matter said they would ask the state’s high court to review their case after a state appeals court sided with the Coastal Commission on the issue.

Lawyers representing Neptune Avenue neighbors Barbara Lynch and Thomas Frick filed the request for judicial review on Oct. 20.

The seven-judge high-court panel doesn’t typically grant review requests. In 2013, the high court granted 61 of the 4,182 review petitions received and rejected 4,032 requests.

As it stands, the Fourth Circuit Court of Appeals — by way of a 2-1 reversal of a lower court ruling — has sided with the Coastal Commission in its argument that it has broad discretionary authority over the regulating the structures.

The homeowners, however, argue that the commission’s imposition of the clause overstepped its boundaries and amounts to an illegal state takeaway of private property rights, which was the same argument made by dissenting appellate judge Gilbert Nares.

“The panel’s majority noted that landowners’ legal right to protect their property from erosion is subject to any limitation the commission wants to impose,” attorneys for the families said. “However, the dissenting judge held that regulations can not be so excessive that they cancel statutory and constitutional rights, and imposing a 20-year expiration date on a seawall permit was an unnecessary, extreme and invalid demand that did not constitute genuine mitigation.”

The Fourth District Court of Appeals, by 2-1 decision, overturned a lower court’s ruling that overturned the state commission’s clause requiring Lynch and Frick to reapply for a permit for the seawall after 20 years.

Superior Court Judge Earl Maas’ original decision also reversed the Commission’s decision to deny the families a permit to reconstruct a private staircase from their properties to the beach below. The appeals court’s decision reverses this, too.

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 has 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.

Because the appeals court’s opinion is published, it could have far-reaching implications on property owners with private seawalls across the state, because it affirms the commission’s authority and discretion over their approval and conditions of approval.

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