The California Coastal Commission may not unilaterally impose a right of public access over private property. So says the California Court of Appeal in Bay Island Club v. California Coastal Commission.
Bay Island Club (the "Club") is comprised of 24 shareholders and owners of single-family residences on Bay Island, a private island located in Newport Bay in the City of Newport Beach. It has held title to the island since the early 1900s. Balboa Peninsula lies adjacent to the island and was conveyed to the East Newport Town Company ("East Newport") by the State of California in 1904. In 1927, East Newport granted to the Club an easement "to construct, maintain, repair and replace a bridge for pedestrian and/or automobile travel". Subsequently, East Newport deeded fee title, subject to the Club's easement, to certain real property, including the channel under the easement to the City.
The bridge built over the easement that existed at the time of the decision was constructed in 1958. In 2006, the Club applied to the California Coastal Commission for a permit to replace it with a 10-foot wide and 130-foot long bridge. Sometime prior to filing the application, the Club had erected a gate on the mainland side of the bridge preventing use of the bridge by the public. There was conflicting evidence in the record over when the gate was built, including evidence from members of the public that the gate was constructed after 1976, which, if true, meant that the gate was constructed in violation of the Coastal Act (passed in 1976), because it was built without a Coastal permit.
After a public hearing, the Coastal Commission granted the Club a permit to construct the new bridge subject to conditions including one that the bridge "be open to the general public for use 24-hours per day," so the public could use the bridge "for access, views, fishing, etc." The condition therefore required removing the existing gate and prohibiting the construction of any future gate on the mainland side of the bridge restricting the public's access to it.
The Club filed a petition for writ of mandate and complaint for declaratory relief to invalidate the condition arguing that it amounted to a taking without compensation. The trial court ruled against the Club, but the Court of Appeal reversed.
The Coastal Commission's rationale for imposing the condition was protecting the public's purportedly existing rights to access the bridge. According the Coastal Commission, it found, based upon substantial evidence, that the gate on the mainland side of the bridge had not been constructed until after 1998. It cited to testimony and letters from members of the public to the effect that the gate had originally been constructed on the island side, but had gradually moved over time to its present location. There being substantial evidence in the record of prior public access of the bridge, the Coastal Commission reasoned, the court was compelled to uphold the condition.
The Court of Appeal disagreed. Even if there was substantial evidence to support the finding of prior public use of the bridge, the finding did not support the imposition of the condition. The court pointed to evidence in the record that the easement granted the Club by East Newport was for a "private" road, plainly indicating that the easement was not intended for public use. Important to the court's analysis was the opinion in LT-WR, LLC v. California Coastal Commission, 152 Cal. App. 4th 770 (2007), in which the court had rejected a prior action by the Coastal Commission in which the Commission had denied a permit on the basis of evidence in the record showing historical public use of the applicant's property. The court in LT-WR held that the "Commission had no authority to decide whether the public had acquired prescriptive rights on the property", that such a decision was properly vested in the courts, but that "[w]hen it denied the permit it 'decreed the existence' of those rights." The Bay Island court determined that the rationale of LT-WR controlled the outcome of the case before it.
It bears mentioning that the fact pattern presented to the Bay Island court seems to implicate squarely the "essential nexus" and "rough proportionality" tests of Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). The court sidestepped the constitutional issues and decided the case on much narrower grounds. Nevertheless, had the issue been confronted directly, it is doubtful whether the condition could have withstood scrutiny under Nollan.