Lent v. Cal. Coastal Comm'n

• Decision Date: 05 April 2021
• Docket Number: B292091
• Citation: 62 Cal.App.5th 812,277 Cal.Rptr.3d 106
• Court: California Court of Appeals
• Parties: Warren M. LENT et al., Plaintiffs, Appellants, and Cross-respondents, v. CALIFORNIA COASTAL COMMISSION, Defendant, Respondent, and Cross-Appellant, California State Coastal Conservancy et al., Real Parties in Interest.

62 Cal.App.5th 812

277 Cal.Rptr.3d 106

Warren M. LENT et al., Plaintiffs, Appellants, and Cross-respondents,

v.CALIFORNIA COASTAL COMMISSION, Defendant, Respondent, and Cross-Appellant, California State Coastal Conservancy et al., Real Parties in Interest.

B292091

Court of Appeal, Second District, Division 7, California.

Filed April 5, 2021

As Modified on Denial of Rehearing April 16, 2021

Pacific Legal Foundation, Damien M. Schiff, Joshua P. Thompson, and Jeremy Talcott, Sacramento; FisherBroyles and Paul J. Beard II, Los Angeles, for Plaintiffs, Appellants, and Cross-respondents.

Law Offices of Thomas D. Roth and Thomas D. Roth, San Francisco, for Center for Balanced Land Use, Inc. as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.

Knipe Law Firm and V. Nicholas Knipe, Glendale, for Malibu Association of Realtors as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.

Berding Weil and Fredrick A. Hagen, Walnut Creek; Kara M. Rollins and Harriet H. Hageman for New Civil Liberties Alliance as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.

Kara M. Rollins and Harriet H. Hageman for National Federation of Independent Business Small Business Legal Center as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.

Chris Scheuring for California Farm Bureau Federation as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.

Xavier Becerra, Attorney General, Daniel A. Olivas, Senior Assistant Attorney General, Christina Bull Arndt and David Edsall Jr., Deputy Attorneys General, for Defendant, Respondent, and Cross-appellant.

Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Deborah A. Sivas, and Molly L. Melius for Surfrider Foundation and Azul as Amici Curiae on behalf of Defendant, Respondent, and Cross-appellant.

SEGAL, J.

INTRODUCTION

A house sits on beachfront property in Malibu.A five-foot-wide vertical easement, owned by the California Coastal Conservancy for public access to the coast, encumbers one side of the property.By 1983 the property owner had built on the easement area a deck providing private access to the beach, a staircase from the deck leading to the house, and a gate blocking public access to the easement area.The California Coastal Commission, which enforces the California Coastal Act( Pub. Resources Code, § 30000 et seq. )¹ and remedies violations of permit conditions, did not approve these structures.

Warren and Henny Lent purchased the property in 2002.In 2007 the Commission began asking the Lents to remove the structures so the Conservancy could build a public accessway over the easement area.The Lents refused.In 2014 the Commission served the Lents with a notice of intent to issue a cease and desist order.The notice advised the Lents the Commission could impose administrative penalties under section 30821, a statute enacted that year authorizing the Commission to impose penalties on property owners who violate the public access provisions of the Coastal Act.Still, the Lents refused to remove the structures.

Two weeks before the scheduled hearing on the cease and desist order, the Commission staff issued a report detailing the Lents’ alleged violations of the Coastal Act.In the report the Commission staff recommended that the Commission impose a penalty of between $800,000 and $1,500,000 (and specifically recommended a penalty of $950,000), but stated that the Commission was justified under the circumstances in imposing a penalty of up to $8,370,000.At the hearing the Commission issued the cease and desist order and imposed a penalty of $4,185,000.

The Lents filed a petition for writ of mandate asking the trial court to set aside the Commission's order and penalty.In addition to contending substantial evidence did not support the Commission's determination that the Lents violated the Coastal Act, the Lents argued section 30821 is unconstitutional on its face because it allows the Commission to impose substantial penalties at an informal hearing where the alleged violator does not have the procedural protections traditionally afforded defendants in criminal proceedings.The Lents also argued that section 30821 is unconstitutional as applied to them and that the penalty violated the constitutional prohibition on excessive fines.The trial court granted the petition in part and denied it in part, ruling substantial evidence supported the Commission's decision to issue the cease and desist order and to impose a penalty.The court ruled, however, the Commission violated the Lents’ due process rights by not giving them adequate notice of the amount of the penalty the Commission intended to impose.Therefore, the court set aside the penalty and directed the Commission to allow the Lents to submit additional evidence.Both the Lents and the Commission appealed.

We conclude substantial evidence supported the Commission's decision to issue the cease and desist order.We also conclude the Commission did not violate the Lents’ due process rights by imposing a $4,185,000 penalty, even though its staff recommended a smaller penalty, because the Commission had previously advised the Lents it could impose a penalty of up to $11,250 per day and the Commission staff specifically advised the Lents that the Commission could impose a penalty of up to $8,370,000.Therefore, we reverse the trial court's judgment remanding the matter to the Commission.

On the Lents’ appeal of the penalty, we conclude the Lents failed to show section 30821 is unconstitutional, either on its face or as applied to them.We also conclude the penalty does not violate the constitutional prohibition on excessive fines.Therefore, we reverse the superior court's judgment and affirm the Commission's order.

FACTUAL AND PROCEDURAL BACKGROUND

A.A Prior Owner Builds the House

The Lents own property in Malibu.South of the property is the ocean; north of the property is the Pacific Coast Highway.In 1978 a prior owner of the property applied to the Commission for a coastal development permit to build a house.As a condition of approving the permit, the Commission required the prior owner to dedicate a vertical public-access easement on the eastern side of the property.In 1980 the prior owner recorded an offer to dedicate a five-foot-wide easement, and in 1982 the Conservancy recorded a certificate of acceptance.A storm drainpipe, owned by the County of Los Angeles, runs across the easement area.

Notwithstanding the permit condition and the easement, the prior owner built in the easement area a wooden deck that sits above the drainpipe and a staircase that provides access from the deck to the house.The staircase occupies 27 inches of the five-foot-wide easement.The deck provides access to the sand through a (different) staircase.The owner also constructed a fence and gate adjacent to the sidewalk that blocks access to the easement area from the highway.The Commission did not issue a permit or otherwise approve any of these structures.This is a view of the easement area from the north (i.e., PCH):

B.The Commission Attempts To Obtain the Lents’ Consent To Remove the Unpermitted Structures

In 1993 the Conservancy sent a letter to the owners of the property informing them of the easement and stating the Conservancy had "the right to open for public use a five-foot-wide corridor for pedestrian access to and from the shoreline."The Conservancy also stated, however, the easement would "remain closed until the Conservancy locate[d] a management agency and open[ed] this easement to public use."Observing that the gate blocked access to the easement area, the Commission asked the owners to "either remove the gate" or "seek the Conservancy's permission to keep the gate in place during the period that the accessway is officially closed" and remove the gate once the Conservancy decided to open the easement.

The Lents purchased the property in 2002(with the gate intact).In April 2007 the Commission sent a letter to the Lents stating the structures in the easement area, including the deck and the gate, were inconsistent with the easement and violated the Coastal Act and asking the Lents to remove all structures in the easement area.The Commission also attached a copy of the house's original permit conditions.The next month the Commission served the Lents with a "notice of intent to commence cease and desist order proceedings."The Lents did not agree to remove the structures.

Because the topography of the easement area includes several steep elevation drops, the Conservancy determined it had to build an accessway with stairs to make the easement usable for the public.In 2008 the Conservancy hired a contractor to conduct a survey of the easement area to assess the feasibility of building an accessway, and in 2010 an architectural firm completed conceptual plans for the accessway.Later that year, representatives from the Commission, the Conservancy, and the architectural firm met at the property with the Lents and their attorneys to discuss development of the accessway.

During the next several years the Commission and the Lents’ attorneys exchanged correspondence in which the Commission asked the Lents to remove the structures in the easement area and the Lents objected for various reasons.Having failed to resolve the issue, the Commission sent a letter to counsel for the Lents in June 2014 stating that, "under the newly enacted Section 30821, ... in cases involving violations of the public access provisions of the Coastal Act, the Commission is authorized to impose administrative civil penalties in an amount up to $11,250 per day per violation."

C.The Commission Issues a Cease and Desist Order and Imposes a Monetary Penalty

In September 2015 the Commission served the Lents with a new notice of intent to issue a cease and desist order and to impose penalties under section 30821.In February 2016 the Lents served the...