On July 6, the California Supreme Court issued its highly anticipated decision in Lynch v. California Coastal Commission (case no. S221980). In this case, coastal homeowners alleged that, in issuing a permit to construct a protective seawall, the California Coastal Commission imposed unconstitutional conditions. In particular, the plaintiffs objected to the permit being limited to a 20-year term, after which they could be required to remove the seawall. However, to the disappointment of many who closely watched the case (as well as the plaintiffs), the Court declined to reach constitutional issues. Instead, the Court ruled that the homeowners waived their objection to permit conditions by constructing the seawall prior to the resolution of litigation.

The two plaintiffs own neighboring blufftop properties along the Encinitas coast, in an area prone to landslides. Plaintiffs applied for approval from the City of Encinitas to replace a wooden seawall and erosion control structure with a concrete seawall and to replace an existing stairway that provided both homeowners with beach access. The City approved the project in 2009, but Plaintiffs also were required to obtain a coastal development permit from the Commission. While that permit application was pending, a severe storm destroyed portions of the wooden seawall, structure and lower stairway. Plaintiffs sought a new permit in 2011 to demolish the old structure, construct a 100–foot long seawall across both properties and rebuild the stairway. The Commission approved the permit subject to three conditions: the 20-year term, with a prohibition on future blufftop development relying on protection by the new seawall; a requirement to apply, before the end of the term, for a new permit to remove or modify the seawall or extend the authorization; and a prohibition on reconstructing the access stairway.

Plaintiffs filed a petition for writ of mandate challenging the three conditions as an unconstitutional regulatory taking of their property and beyond the Commission’s authority. The Commission argued that the 20-year limit was a reasonable restriction, to allow the agency to re-evaluate in response to increasing uncertainty and vulnerability of the coast in a changing climate. The case drew wide attention from property rights advocates and environmental groups as an opportunity to obtain judicial views on the hotly contested question of “managed retreat” from coastal development in the face of climate change.

At the same time, however, Plaintiffs recorded deed restrictions providing that the permit conditions were covenants, conditions and restrictions on the properties, satisfied all other permit conditions, and went ahead to construct the new seawall. This proved their undoing, enabling the Commission to argue that their mandamus action was barred once they began construction. The California Supreme Court agreed, invoking the well-established rule that one who accepts the benefits of a permit also accepts its burdens. The crucial point, the Court found, was that the plaintiffs began constructing the seawall “prior to obtaining a judicial determination on their objections.” To preserve their claims, they should have delayed construction until receiving a final judicial ruling. The plaintiffs argued that they could not delay building the seawall without endangered their property, seeking an emergency exception to the rule on accepting permit burdens with the benefits. The Court was unpersuaded, noting that they did not seek “an emergency permit [that] would have preserved the status quo pending the outcome of litigation.”

The competing considerations of climate change, coastal vulnerability and property rights will not go away. But these issues must await a future case in which plaintiffs can afford to hold off on construction until litigation concludes.