Kretowicz v. Cal. Coastal Comm'n

• Decision Date: 28 September 2015
• Docket Number: D066072
• Court: California Court of Appeals
• Parties: DIANNE KRETOWICZ, as Trustee, etc. et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent.

DIANNE KRETOWICZ, as Trustee, etc. et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent.

D066072

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

September 28, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2011-00097607-CU-MC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.

Gaines & Stacey and Sherman Louis Stacey, Nanci S. Stacey for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney General, Jamee Jordan Patterson, Deputy Attorney General for Defendant and Respondent.

James S. Burling and Christopher M. Kieser for Amicus Curiae Pacific Legal Foundation.

Appellants Dianne Kretowicz and Ure Kretowicz, as trustees of the DUK Trust dated September 9, 1994 (hereafter the Kretowiczes) filed a verified petition for writ of mandate and complaint against respondent California Coastal Commission (Commission) in part challenging Commission's decisions to require the Kretowiczes to irrevocably dedicate public access easements as a condition of their requested amended coastal development permit for improvements on their La Jolla property. Commission found in part that there was a history of public access at the site warranting Commission protection, and that the Kretowiczes' predecessor had accepted the benefits of a permit in which it had imposed such a condition on the basis of such historic use, precluding the Kretowiczes' challenge. The trial court denied the Kretowiczes' petition, as well as their request for declaratory relief, and dismissed a cause of action seeking quiet title against Commission.

The Kretowiczes appeal from the ensuing judgment in Commission's favor, contending the trial court reversibly erred by denying their petition and entering judgment because (1) it did not provide them with notice or trial on their declaratory relief and quiet title causes of action; (2) Commission's findings are inadequate, unsupported by the evidence, and beyond its jurisdiction; (3) the court relied on inapposite case authority; and (4) substantial evidence does not support the court's conclusion that the Kretowiczes' predecessor in interest accepted Commission's public access condition.

We conclude Commission's findings are supported by substantial evidence, and that the Kretowiczes' predecessor's failure to timely appeal Commission's decision togrant her permit on condition she record an irrevocable offer to dedicate public access easements bars the Kretowiczes' challenges, including their claim that Commission's action constitutes an unconstitutional taking. We reject the Kretowiczes' remaining contentions, and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Kretowiczes own a single family home on Princess Street in La Jolla (the property), on a lot extending to the shore of the Pacific Ocean, with approximately 190 feet of ocean frontage. In 1978, the property was owned by Jane Baker. In March 1978, Baker applied to the San Diego Coast Regional Commission (the Regional Commission)¹ for a coastal development permit to construct a large addition to the then existing house. In June 1978, the Regional Commission approved the permit, designated No. F6760, subject to special conditions relating to geology, slope integrity and drainage. Permit No. F6760 states that its "terms and conditions shall be perpetual, and it is the intention of the parties to bind all future owners and possessors of the subject property to said terms and conditions."

Legal challenges ensued, including appeals (designated Nos. 221-78 and 133-79) from decisions of the Regional and State Commissions as well as a superior court petition for writ of mandate. In the writ petition, the appellant asserted that Commission hadfailed to make specific public access findings required by the Coastal Act of 1976 (§ 30604). Baker, the real party in interest, participated in those proceedings. Baker completed her proposed construction pending the legal proceedings.

On September 20, 1979, Commission unanimously granted Baker's permit for her proposed development, and imposed new special conditions for lateral and vertical public shoreline access.² Commission's supporting findings acknowledged that the Coastal Act required that public access to and along the shoreline be maximized; staff stated in part that adequate access to the beach below the property did not exist nearby and "[a]lthough the public has historically had access over the project site, construction of the project has preceeded [sic] the use of this accessway, thereby diminishing the public's right of access to the state owned tidelands. An alternative accessway must, therefore, be provided to offset the burdens this development has placed on [the] public's constitutional right of access and to assure the conformity of the project to the provisions of [section 30212] of the [Coastal] Act."³ Commission also made findings about the historical public access tothe beach in response to Baker's position, stating: "The applicant contends that, because of the steepness of the bluff, the accessway would not be safe and therefore need not be provided . . . . This site has historically been used for access to the shoreline below. A site inspection revealed that it was not difficult to walk down the bluff face and, if minor improvements were made, the access way could be easily traversed with little damage to the landforms. The Commission concludes that public access can be provided consistent with public safety and must, therefore, be provided to find the proposed project consistent with the Coastal Act." The special permit condition required Baker to submit for approval, prior to the permit's issuance, "a document irrevocably offering to dedicate to a public agency or private association approved by the Executive Director easements for public access to and along the shoreline in accordance with the provisions of this condition." Commission's decision required that the document "shall be irrevocable for a period of 21 years running from the date of recordation" and "shall constitute a covenant running with the land in favor of the People of the State of California binding the applicant, heirs, assigns and successors in interest to the subject property."

Days after Commission heard the matter, a representative for the appellant in the legal proceedings wrote to Commission's legal department to inform it that Baker was contemplating not making the offer of dedication; that Baker might take the position that she had built her construction under a valid permit. Several months later, the appellant's representative noted in a letter to the attorney general that Commission had voted to findBaker in violation and had referred the matter to the attorney general for enforcement. The representative asked the attorney general to penalize Baker for her violation of the dedication condition.

Baker did not submit an irrevocable offer to dedicate the easement. In 1980, she sought to amend permit No. F6760 to approve already completed drainage that differed from the prior permit condition. She eventually sold the property. In an April 1989 handwritten "statement of understanding" to the buyer signed by Baker, Baker's son who was also her sales representative wrote: "Jane Baker has agreed to California Coastal Commission stipulations, File #A-133-791/F6760, dated Sept. 20, 1979. These provisions state generally the requirements for drainage and easement conditions. It is understood that any purchase by you would require acknowledgment of these declarations, including the future recording of emergency or public access to the beach."⁴

Thereafter, the property became bank-owned through foreclosure. In early 1994, the Kretowiczes purchased the property from Union Bank. At that time, the La Jolla-La Jolla Shores Local Coastal Program Addendum (La Jolla LCP) identified shoreline access at Princess Street, stating in part: "As a condition of a permit to build a single-family house, the State Coastal Commission required the owner of the bluff top lot to dedicate a 4-foot wide vertical easement along one side of the property from the Princess Street cul-de-sac to the shoreline. The owner has challenged the validity of the condition and no offer of dedication has been made. The State Attorney General has apparently decided not to pursue an enforcement of the condition, although the possibility of future litigation remains. The site represents one of two potential routes to a remote section of shoreline accessible only during low tides."

The Kretowiczes File for a Coastal Development Permit Following the City of San Diego's Discovery of Unauthorized Improvements

In 1997, the Kretowiczes applied for a coastal development permit after a code enforcement complaint reported numerous unpermitted landscape and hardscape improvements. Though the City of San Diego eventually issued the permit,⁵ that decision was appealed to Commission on grounds it was inconsistent with permit No. F6760's public access requirements and the Kretowiczes withdrew the application. Asearly as 2001, the Kretowiczes went ahead with numerous unpermitted improvements, for which they were assessed civil penalties in December 2007.

Commission Denies The Kretowiczes' Request for Relieffrom the 1979 Public Access Dedication Requirements, finding the Conditions Valid as Against Them

In July 2004, the Kretowiczes applied for a new coastal development permit. After Commission advised them their proposed work required an amendment to permit No. F6760, in August 2004 they filed an application to...