Lechuza Villas West v. California Coastal Com'n

• Decision Date: 19 December 1997
• Docket Number: B110008,Nos. B105571,s. B105571
• Citation: 60 Cal.App.4th 218,70 Cal.Rptr.2d 399
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 9571, 98 Cal. Daily Op. Serv. 416, 97 Daily Journal D.A.R. 15,277, 98 Daily Journal D.A.R. 537 LECHUZA VILLAS WEST, Plaintiff and Respondent, v. CALIFORNIA COASTAL COMMISSION et al., Defendants and Appellants. STATE of California et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent; LECHUZA VILLAS WEST, Real Party in Interest.

Page 399

70 Cal.Rptr.2d 399

60 Cal.App.4th 218, 97 Cal. Daily Op. Serv. 9571,

98 Cal. Daily Op. Serv. 416,

97 Daily Journal D.A.R. 15,277,

98 Daily Journal D.A.R. 537

LECHUZA VILLAS WEST, Plaintiff and Respondent, v. CALIFORNIA COASTAL COMMISSION et al., Defendants and Appellants.

STATE of California et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent;

LECHUZA VILLAS WEST, Real Party in Interest.

Nos. B105571, B110008.

Court of Appeal, Second District, Division 3, California.

Dec. 19, 1997.

Certified for Partial Publication. ^*

As Modified on Denial of Rehearing Jan. 14, 1998.

Review Denied April 1, 1998.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Richard M. Frank and Jan S. Stevens, Assistant Attorneys General, Dennis M. Eagan, J. Matthew Rodriquez and Joseph Barbieri, Deputy Attorneys General, Vittal and Sternberg and Terence M. Sternberg for Defendants and Appellants

Reznik & Reznik, Gaines & Stacey, Sherman Oaks, Sherman L. Stacey, Santa Monica, Fred N. Gaines, and L. Elizabeth Strahlstrom, Woodland Hills, for Plaintiff, Respondent and Real Party in Interest.

James S. Burling and Eric Grant, Sacramento, as Amici Curiae on behalf of Plaintiff, Respondent and Real Party in Interest.

CROSKEY, Acting Presiding Justice.

A. FACTUAL AND PROCEDURAL BACKGROUND

In 1990, Lechuza Villas West, a California limited partnership (Lechuza), purchased unimproved beachfront property in Malibu from the Adamson Company for approximately $2 million (the property). The property consists of 17 legally subdivided contiguous lots, on which Lechuza wishes to build up to 17 homes, a 985 foot revetment, and a 1,200 foot road, and is part of Tract No. 10630, which was subdivided by the Marblehead Land Company as shown on a tract map recorded in 1932 (the 1932 Tract Map). ¹ The subdivision was subject to covenants, conditions and restrictions also recorded by the Marblehead Land Company (the CC & Rs), which provided for the formation of a homeowner's association, which association is now known as the Malibu-Encinal Home Owners Association (MEHOA), and which association is a party to this appeal. When Lechuza signed the purchase agreement for the property, it acknowledged that it was aware of possible limitations on development of the property, including (1) potential title claims by the State of California (the State), (2) easement claims by MEHOA, and (3) the In 1990 and 1991, even before it had completed its purchase of the property, Lechuza submitted several different development proposals to the California Coastal Commission (hereafter, the "Coastal Commission") to obtain the necessary permits to develop the property. In connection with developing the property, Lechuza also contacted the California State Lands Commission (hereafter, the "Lands Commission") about the proposed location of the residences it intended to construct. In response, the Lands Commission wrote back in March of 1991, stating, in relevant part:

fact that the location of the mean ² high tide line "will have a material effect on the existence, extent, configuration and development potential of Seller's Residential lots." ³

"Based on the information you provided and an analysis of our in-house records and maps, the proposed residences appear to be located landward of those surveyed mean high tide lines known to us at this time. Therefore, we will not require a lease or permit. [p] You should be aware, however, that this office has not made a final determination of the State's boundary at this location. Therefore, we reserve the right to require a lease or permit at some time in the future should it be determined State land is involved. [p] Our analysis of the limited evidence available of the history of the beach at this location leads us to believe that the beach sand has, at times, been washed completely down to bedrock, resulting in the loss of Sea Level Drive. The State Lands Commission will not be liable for any damage to property that may result from construction, nor does the Commission agree that it will permit any activity (for example erosion control measures) on its adjacent land, to protect structures that may be developed. [p] This letter is not intended, nor should it be construed as, a waiver of any right, title, or interest of the State of California in any lands under its jurisdiction." (Italics added.) ⁴

All these permit applications were denied, based on the Coastal Commission's findings that the proposed development was inconsistent with various provisions of the Coastal Act, and, specifically, that the proposed revetment, which otherwise "shall be permitted when required to serve coastal-dependent uses or to protect existing structures" (Public Resources Code, § 30235, italics added), would interfere with the public's right of access, could alter the usable area of beach under public ownership, cause erosion on nearby beaches, and would physically block part of the public beach and encroach on public tidelands. Lechuza filed separate mandate petitions and claims for an unconstitutional taking following the first two denials of its permit applications. ⁵

In 1992, following the decision in Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 [holding that the regulatory denial of all economically viable use of private property was an unconstitutional taking unless necessary to prevent a nuisance or land use prohibited by state law], the parties agreed to entry, in Case No. SS001187, of a stipulated judgment for remand based on newly discovered relevant information. That stipulated judgment was entered on January 12, 1993, and provided, in relevant part, that the Coastal Commission would reconsider Lechuza's previously denied permit applications in light of all the evidence produced at the hearing on Lechuza's most recent (and not yet denied) permit applications.

Perhaps prompted by the Lucas decision, the Coastal Commission had contacted the Another public hearing was held in January 1993, after which the Coastal Commission denied Lechuza's consolidated permits, finding, among other things, that the property was subject to a public easement for navigation and that Lechuza had failed to meet its burden of showing that the project would not encroach on public tidelands.

Lands Commission regarding the location of the mean high [60 Cal.App.4th 225] tide line at the property in question. In a letter dated November 4, 1992, the Lands Commission responded, in relevant part: "Recently, additional and more current evidence (including the studies by Uzes and Weiss referenced in your letter) has been presented to us, which indicates that the mean high tide line has been located on numerous occasions landward of the surveyed lines referenced in our earlier correspondence. The applicant's own engineering study (Weiss) indicates that, on the average, the location of the mean high tide line would be located landward of the [developer's] stringline and therefore within the project area several days every year. There is now a substantial indication that the State's sovereign ownership has extended to land on which portions of the project would be located. Further study could enable a more precise determination of the extent and location of the State's sovereign ownership in the project area. [p] Unless and until further study indicates otherwise, it is the position of this agency that any activity on this land will require a permit from this agency.... [p] Unfortunately, due to recent budget cuts and resultant staff reductions, we are unable to place high priority on defining the precise extent and location of State sovereign ownership in the Lechuza Beach area at this time. If your applicant [i.e., the developer Lechuza] wishes to pursue this matter further, he should contact [Land's Commission's counsel]. The applicant will be required to pay our costs in addressing the sovereign boundary issue. [p] Finally, we note that this proposed project could have a significant negative impact on the public's right and ability to navigate and exercise the incidents of navigation in the area .... [which] are protected not only by the Coastal Act, but by the California Constitution (Article X, section 4), and numerous court decisions. [p] We have been informed that the public has used this beach, including the area subject to wave uprush, for navigation and other recreational uses for many years. We therefore recommend ... that any otherwise permissible project proposed in this area be designed so as to eliminate any potential impact on the public's rights. To the extent any proposed project would interfere with the public's navigational and related rights, we would object to it."

On March 15, 1993, Lechuza filed a petition for a writ of mandate and complaint for declaratory relief and damages against the Coastal Commission ⁶ (collectively, the "complaint"). The petition for a writ was denominated as the first cause of action of the complaint. The complaint also contained a second cause of action for declaratory relief directed at the statutory validity of the Coastal Commission's permit decision (alleging that the Coastal Commission could not prohibit development based on Public Resources Code section 30211 unless a court of competent jurisdiction first had found that the public had acquired a right of access to the sea), a third cause of action, also for declaratory relief (alleging that the Coastal Commission could not prohibit all economically viable use of the property unless it found that the proposed uses would constitute a nuisance or that the property owner did not have sufficient rights in its property to allow for the construction of the proposed improvements), a fourth cause of action for damages for a temporary taking of property without just compensation, and a fifth cause of action for a...