Lindstrom v. Cal. Coastal Comm'n

• Decision Date: 19 September 2019
• Docket Number: D074132
• Citation: 40 Cal.App.5th 73,252 Cal.Rptr.3d 817
• Court: California Court of Appeals Court of Appeals
• Parties: James LINDSTROM et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

40 Cal.App.5th 73

252 Cal.Rptr.3d 817

James LINDSTROM et al., Plaintiffs and Appellants,

v.CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

D074132

Court of Appeal, Fourth District, Division 1, California.

Filed September 19, 2019

Xavier Becerra, Attorney General, Daniel A. Olivas, Assistant Attorney General, Jamee Jordan Patterson and Hayley Peterson, Deputy Attorneys General, for Defendant and Appellant.

Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Molly Loughney Melius, Thomas Miller and Annelise Corriveau as Amicus Curiae on behalf of Defendant and Appellant.

The Jon Corn Law Firm, Jonathan C. Corn, Del Mar, Anders T. Aannestad, Arie L. Spangler, San Diego, and Lee M. Andelin, for Plaintiffs and Appellants.

IRION, J.

This case concerns an appeal and cross appeal from the trial court's ruling on a petition for writ of administrative mandate that James and Karla Lindstrom (the Lindstroms) filed against the California Coastal Commission (the Commission) challenging certain special conditions that the Commission placed on its approval of the Lindstroms' plan to build a house on a vacant oceanfront lot on a bluff in Encinitas. The Commission's appeal challenges the trial court's disapproval of the special conditions requiring (1) the home to be set back 60 to 62 feet from the edge of the bluff, instead of the 40-foot setback approved by the City of Encinitas (the City); and (2) a waiver by the Lindstroms of any right to construct a shoreline protective device, such as a seawall, to protect the home from damage or destruction from natural hazards at any time in the future. The Lindstroms cross-appeal from the trial court's approval of the special conditions requiring (1) removal of the home from the parcel if any government agency orders that it not be occupied due to a natural hazard; and (2) performance of remediation or removal of any threatened portion of the home if a geotechnical report prepared in the event the edge of the bluff recedes to within 10 feet of the home concludes that the home is unsafe for occupancy.

On our de novo review of the trial court's decision, we conclude that with one exception the Commission's imposition of the special conditions identified by the parties was within its discretion. Specifically, the condition requiring removal of the home from the parcel if any government agency orders that it not be occupied due to a natural hazard, including erosion or a landslide, as currently drafted, is overbroad, unreasonable and does not achieve the Commission's stated purpose in drafting it. Therefore, we will reverse the judgment and direct the trial court to enter a new judgment ordering the Commission to either delete the special condition or to revise it to more narrowly focus on its intended purpose.

I.FACTUAL AND PROCEDURAL BACKGROUND

A. The Lindstroms' Application to the City for a Coastal Development Permit

The Lindstroms own a vacant 6,776 square foot lot on an approximate 70 foot-high ocean-top bluff in Encinitas north of Moonlight State Beach (the Lot). In December 2012, the Lindstroms filed with the City an application for a coastal development permit to build a two-story 3,553 square foot home with a 1,855 square foot underground basement and a 950 square foot garage. The seaward side of the structure would be set back 40 feet from the edge of the bluff.

Coastal development in the City is governed by the City's Local Coastal Program (LCP), which was certified by the Commission in the mid-1990s.¹ The City's LCP requires that permit applications for development in the Coastal Bluff Overlay Zone, where the Lot is located, be accompanied by a geotechnical report prepared by "a certified engineering geologist." (Encinitas Mun. Code, ch. 30.34, § 30.34.020D.) "The review/report shall certify that the development proposed will have no adverse [e]ffect on the stability of the bluff, will not endanger life or property, and that any proposed structure or facility is expected to be reasonably safe from failure and erosion over its lifetime without having to propose any shore or bluff stabilization to protect the structure in the future." (Encinitas Mun. Code, § 30.34.020D.) The City's LCP lists certain aspects of bluff stability that the geotechnical report shall consider.² It further states that "[t]he report shall also express a professional opinion as to whether the project can be designed or located so that it will neither be subject to nor contribute to significant geologic instability throughout the life span of the project." (Encinitas Mun. Code, § 30.34.020D.11, 1st par.)

As centrally relevant in this case, the City's LCP states, "In addition to the above, each geotechnical report shall include identification of the daylight line behind the top of the bluff established by a bluff slope failure plane analysis. This slope failure analysis shall be performed according to geotechnical engineering standards, and shall: [¶] a. Cover all types of slope failure. [¶] b. Demonstrate a safety factor against slope failure of 1.5. [¶] c. Address a time period of analysis of 75 years." (Encinitas Mun. Code, § 30.34.020D.11, 1st par. a-c.)

As required by the City's LCP, the Lindstroms submitted a geotechnical report by Geotechnical Exploration, Inc. (GEI) as part of their permit application to the City, which addressed, among other things, erosion and bluff stability over the next 75 years. Addressing the rate of expected erosion, the GEI report opined that the bluff would erode a total of approximately 10 feet in 75 years, based on an annual erosion rate of 0.125 feet.³ Addressing the issue of bluff stability to arrive at a safety factor of 1.5 as required by the City's LCP, the GEI report concluded that "the coastal bluff at the site is considered grossly stable against deep-seated failures with a setback of 18.3 feet."⁴ The GEI report then combined the 10 feet of erosion expected over 75 years with the 18.3 foot setback needed to achieve a bluff stability safety factor of 1.5 to arrive at a total setback distance of 28.3 feet (rounded to 29 feet) for the construction on the Lot.⁵ As the City's LCP provides that construction on coastal bluffs shall be set back a minimum of 40 feet (Encinitas Mun. Code, § 30.34.020B.1),⁶ the GEI report concluded that based on its analysis showing a recommended setback of approximately 29 feet, "a 40-foot foundation setback should allow for a project life of 75 years, without the need for toe-of-bluff protection."

The City's planning commission approved the application on May 2, 2013. As part of the approval, the planning commission made findings that the project is consistent with the City's LCP. As one of the conditions for the permit, the City required the Lindstroms to provide a letter stating that " ‘the building as designed could be removed in the event of endangerment, and the property owner agreed to participate in any comprehensive plan adopted by the City to address coastal bluff recessions and shoreline erosion problems in the City.’ "⁷

B. The Commission's Consideration of the Appeal

In June 2013, the City's approval of the Lindstroms' coastal development permit was appealed to the Commission by two of the Commission's members.⁸ As relevant here, one ground of the commissioners' appeals was that the City's approval "appears inconsistent with the policies of the LCP relating to the requirement that new development be sited in a safe location that will not require shoreline protection in the future."

On May 28, 2013, which was after the City's approval of the permit, but prior to the filing of the appeal by the two commissioners, the authors of the GEI report sent a letter to the Commission setting forth a revised geotechnical analysis, presumably for consideration during the commissioners' decision on whether to file an appeal.⁹ The GEI letter stated that upon review of other materials, the authors concluded that the erosion rate of 0.125 per year was in error, and it set forth a revised erosion rate of 0.40 per year, for total erosion of 30 feet in 75 years. The GEI letter also revised the bluff stability analysis, concluding that a safety factor of 1.5 would be achieved at a setback of 42.25 feet from the edge (instead of 18.3 feet). GEI explained that if it combined the expected erosion of 30 feet over 75 years with the 42.25 foot setback required to achieve a safety factor of 1.5, the construction would have to be set back a total of 72.25 feet from the edge of the bluff. However, in the letter, GEI proposed an alternative to a bluff failure analysis that did not depend on achieving a safety factor of 1.5. Specifically, GEI proposed that a bluff stability analysis be based on the "natural angle of repose" of the materials making up the bluff. In that analysis, GEI concluded that a "9.7-foot angle of repose setback" was required in addition to the 30-foot setback required for the expected rate of erosion, for a total setback of 39.7 feet, which was less than the City's minimum 40-foot setback for bluff top construction.

As the appeal proceeded in the Commission, the Lindstroms decided to obtain a different geotechnical report and requested that the Commission delay its decision on the appeal while the new report was being prepared. The new geotechnical report, dated October 23, 2015, was prepared by TerraCosta Consulting Group (TCG) and signed by two authors: a registered civil/geotechnical engineer and a certified engineering geologist.¹⁰

The TCG report concluded that the predicted bluff erosion rate was 0.40 per year, so that in 75 years the bluff could erode 30 feet. TCG explained that its erosion rate was based on "our review of documents and experience along this reach of the coastline," including "our in-house files, along with available published and unpublished documents." With respect to the bluff stability analysis, the TCG report concluded that the bluff was stable at a safety factor of 1.5 "between 23 and 25...