BURKE v. Cal. COASTAL Comm'n

• Court: California Court of Appeals
• Writing for the Court: BOREN, P.J.
• Citation: Burke v. California Coastal Comm'n, 168 Cal.App.4th 1098, 85 Cal.Rptr.3d 909 (Cal. App. 2008)
• Decision Date: 01 December 2008
• Docket Number: No. B207188.,B207188.
• Parties: Martin L. BURKE, Plaintiff and Appellant, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent.

168 Cal.App.4th 1098

85 Cal.Rptr.3d 909

Martin L. BURKE, Plaintiff and Appellant,

v.CALIFORNIA COASTAL COMMISSION, Defendant and Respondent.

No. B207188.

Court of Appeal, Second District, Division 2, California.

Dec. 1, 2008.

Pacific Legal Foundation, J. David Breemer, Sacramento, for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Christiana Tiedemann, Acting Assistant Attorney General, John A. Saurenman, Deputy Attorney General, for Plaintiff and Respondent.

BOREN, P.J.

This case arises from the denial of a permit by respondent California Coastal Commission (the Coastal Commission) to replace an existing but deteriorating chain link fence, approximately 1,000 feet long, located on private property at the bottom of the bluffs at a Torrance beach. A 1988 Boundary Agreement with the State Lands Commission, other entities of the State of California (the State), the City of Torrance (the City), and affected homeowners specifically described the fence as an essential component of an agreed upon boundary separating a sandy beach easement for public use from adjacent privately owned land. We find that because this type of boundary settlement with the State Lands Commission is statutorily exempt from the purview of the Coastal Commission (Pub. Resources Code, § 30416), ¹ the Coastal Commission had no jurisdiction to require a permit for the fence.

Thus, the trial court erred in denying appellant Martin Burke's petition for writ of administrative mandamus to vacate the permit denial and for declaratory relief to establish the Coastal Commission's lack of jurisdiction.

FACTUAL AND PROCEDURAL SUMMARY

The history of the fence and the nature of the property.

Burke owns a home and has a private leasehold interest in land (with an option to purchase) at 533 Paseo de la Playa Drive in the City. ² His home is on top of a bluff overlooking the ocean, with the bluff sloping down to a public beach below. A portion of the disputed chain link fence is on his property at the very bottom of the bluff. The fence separates his property from an area used as a public beach.

Other homeowners on the same side of the street have similarly situated lots. Burke is the agent for over a dozen neighboring homeowners and fence permit applicants who also have private lots on top of the bluffs, which slope from the higher ground on Paseo de la Playa Drive down to the public beach. Other sections of the chain link fence similarly separate the bottom of the bluffs on these other lots from the back of the public beach.

The bluffs have been dangerously unstable. In 1974, an Attorney General memorandum indicated that almost a third of the bluffs on the lots were “nearly vertical.” In 2005, the Coastal Commission staff recommended denial of an unrelated permit request for shade structures at the toe and on the face of the bluff. The staff report emphasized that, “[h]istorically the sandy bluffs immediately inland of [Torrance] beach have suffered from sloughing and collapse,” and this has “been hazardous for beach visitors climbing on the bluffs.” For example, in the late 1950's, a trespassing youth died when a portion of the bluff caved in. In 1965, another youth died and one was injured when a portion of the bluff collapsed as they attempted to climb on it.

At some point soon after these fatal injuries, a chain link fence was lawfully erected at the bottom of the bluffs to keep people off the bluff faces. According to numerous Paseo de la Playa Drive residents and longtime Los Angeles County lifeguards at the Torrance beach, a fence existed in some form prior to 1973 and at least since 1968. ³ Burke observed a fence on his lot when he moved there in 1972.

However, there is no evidence that the early fence or fences are the ones that exist today. In fact, at least portions of the fence have been rebuilt several times, and some evidence indicates that a fence may not have existed on February 1, 1973. As noted in a Coastal Commission staff report in January of 2006, “the 1972 aerial oblique photos of the Torrance Bluffs taken by the Department of Navigation and Ocean Development and obtained from the Commission's files ... do not show a fence at this location.” Burke acknowledged that he sought funds from the homeowners in 1973 to rebuild the fence after a storm had destroyed it. In 1974 Burke obtained a building permit from the City to build the fence, in the spring of 1974 a fence was built, and in 1981 Burke obtained a permit from the City for a replacement fence.

Meanwhile, in 1973 the South Coast Regional Commission (the Regional Commission) of the Coastal Zone Conservation Commission, the predecessor of the Coastal Commission, issued an administrative permit for a 560-foot-long fence at the bottom of the bluff along five lots north of the portion of the fence on Burke's lot. In 1975, the Regional Commission approved a 410-foot-long, six-foot-high fence at the bottom of the bluff along one large lot south of the fence on Burke's lot. The Regional Commission's permit approval noted that the fence was “temporary and subject to removal upon resolution of [other then pending] litigation.” The Regional Commission further found that “although the fence is aesthetically disturbing, it is also a necessity to protect the natural bluffs from climbers and other misuses” and thus “to reduce man-made erosion.”

Moreover, the bluffs in many places contain habitat for the endangered El Segundo blue butterfly. In 1995, the United States Fish and Wildlife Service gave written notice to the Coastal Commission that “[t]he host plant for the El Segundo blue butterfly ... an endangered species, is located in patches throughout the bluff face on many of the lots along Paseo de la Playa.” The delicate “dune buckwheat” plant is the host plant for that butterfly. According to the Coastal Commission's staff ecologist, that habitat “is easily disturbed by human activities.”

The 1988 Boundary Agreement.

In the early 1970's, a dispute arose between the City and the property owners along Paseo de la Playa Drive regarding the right of the public to access private land at the base of the bluffs along the back of the beach. The City filed a quiet title action against the property owners based on alleged prescriptive rights to the disputed upland portion of the sandy beach area. Burke negotiated a preliminary settlement on behalf of himself and the other affected homeowners. This preliminary agreement gave the public access to private sandy beach property at the bottom of the bluffs, while allowing the property owners to keep the fence to prevent trespassing and to mark the property boundaries.

However, some delays ensued, and the preliminary agreement was not formalized until 1988. On September 12, 1988, the State Lands Commission, the City, the Attorney General's Office, the homeowners along Paseo de la Playa Drive, and Governor George Deukmejian signed a formal boundary agreement. (See § 6107.) This 1988 Boundary Agreement established a boundary line between private and state ownership of property. The property owners quitclaimed to the State all of their right, title and interest to lands seaward of the agreed boundary. The property owners also agreed to dedicate a public easement landward of the line over a strip of private sandy beach property at bottom of the bluffs. With this public easement excepted, the State and the City quitclaimed to the property owners all public interest landward of the agreed boundary line.

The State and the City further agreed that the property owners could maintain a fence at the bottom of the bluffs. As specified in the agreement: “Notwithstanding the public easement the [owners have] the continuing right to construct, repair and maintain an eight (8) foot chain link fence on the landward boundary of the Sandy Beach Portion and to have access to the Sandy Beach Portion to facilitate said construction, repair and maintenance.”

[1] Thus, the fence at the bottom of the bluffs is not on the agreed boundary line separating private from public ownership of land; that boundary would be the mean high tide line. ⁴ Rather, the fence is located landward of the agreed boundary line and marks the easterly boundary of the sandy beach easement area.

Administrative proceedings.

In 2005, Burke sought to repair the fence on his behalf and that of other affected homeowners who consented to his representation. The Coastal Commission required a coastal development permit for an “after-the-fact” approval and replacement of the fence. On his own behalf and that of 14 other property owners, Burke submitted such an application. The Coastal Commission processed the application as a global one for fencing on all of the lots in question along Paseo de la Playa Drive.

In April of 2006, the Coastal Commission staff issued a report recommending denial of the requested permit for an eight-foot-high, 930-foot-long chain link fence along the toe of the bluffs on the sandy beach area. The public hearing initially scheduled was continued to allow the parties time to submit evidence as to whether the fence predated the Coastal Act (actually, its predecessor statute) and was therefore outside the Coastal Commission's jurisdiction. Thereafter, Burke submitted declarations from people who lived in the area and from Los Angeles County lifeguards indicating that a fence or fences existed at various times prior to 1973.

In June of 2006, the Coastal Commission staff issued a report questioning the value of such declarations, concluding there was insufficient evidence that the fence existed prior to the Coastal Act, and again recommending the denial of a permit for the fence. The staff report additionally found that the 1988 Boundary Agreement did not divest the Coastal Commission of jurisdiction to deny the fence permit. It reasoned that the Coastal Commission did not sign the boundary agreement, and none of the state entities...