Scott v. City of Del Mar

• Decision Date: 10 October 1997
• Docket Number: No. D026338,D026338
• Citation: 68 Cal.Rptr.2d 317,58 Cal.App.4th 1296
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 8381, 97 Daily Journal D.A.R. 13,487 Jack D. SCOTT et al., Plaintiffs and Appellants, v. CITY OF DEL MAR, Defendant and Respondent.

Page 317

68 Cal.Rptr.2d 317

58 Cal.App.4th 1296, 97 Cal. Daily Op. Serv. 8381,

97 Daily Journal D.A.R. 13,487

Jack D. SCOTT et al., Plaintiffs and Appellants, v. CITY OF DEL MAR, Defendant and Respondent.

No. D026338.

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

Oct. 10, 1997.

Review Denied Dec. 23, 1997.

[58 Cal.App.4th 1299] Marcus E. Crahan, Jr., Los Angeles, for Plaintiffs and Appellants.

Worden, Williams, Richmond & Ellis and Tracy R. Richmond, Solana Beach, for Defendant and Respondent.

KREMER, Presiding Justice.

In this inverse condemnation action, Jack D. and Angela Adams Scott, as trustees of the Angela Adams Scott trust (together Scott), and Edwin C. Lynch, as trustee under trust agreement dated May 25, 1988, appeal a judgment entered in favor of the City of Del Mar (Del Mar) after the trial court determined Del Mar's removal of their seawalls, rip rap and patios encroaching on the public beach was not compensable under constitutional takings principles. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Scott and Lynch own neighboring oceanfront homes between 23rd and 24th Streets in Del Mar which when purchased had wooden seawalls with rip rap in front of the walls After storms in 1983 damaged the seawalls, Scott and Lynch's predecessor-in-interest made repairs. Del Mar sent Scott a notice the seawall, along with a new windbreak and stairs to the beach, were located 15 feet 10 inches west of the property line and would have to be removed within 10 days unless permits were obtained. Scott invited Del Mar to send him the necessary paperwork but it did not respond. Del Mar sent Lynch's predecessor-in-interest a similar letter, advising the seawall, new decking and stairs to the beach were 16 feet west of the property line.

and private patios between the walls and homes. The seawalls, built in 1928 (Lynch) and 1946 (Scott), were not on the [58 Cal.App.4th 1300] residential lots but between 15 and 16 feet seaward of the westerly lot lines on public beach.

In 1988 Del Mar adopted the Beach Overlay Zone by the initiative process, enacted as chapter 30.50 of the Del Mar Municipal Code, to "protect public access to and along the shoreline, while promoting public safety, health and welfare, and providing for the protection of private property." (Del Mar Mun.Code, § 30.50.010.) The ordinance prohibits seawalls and other structures west of the Shoreline Protection Area line, which runs north to south along the coast and generally coincides with the westerly property lines of oceanfront lots. Property west of the Shoreline Protection Area line is in the Shoreline Protection Area. The ordinance requires removal of pre-existing nonconforming structures, but a Shoreline Protection Permit is available under certain circumstances for a seawall up to five feet west of the Shoreline Protection Area line. (Del Mar Mun.Code, §§ 30.50.040, subd. A, 30.50.100 and 30.50.060, subd. G.)

In October 1988 Del Mar sent Scott and Lynch notices their improvements encroached on the Shoreline Protection Area, and an administrative hearing would be scheduled to determine an abatement period. Del Mar advised Scott and Lynch that if they disagreed with its determination, they should submit survey information showing their property lines, the existing development, the Shoreline Protection Area line and the distance five feet west of that line. Further, Del Mar advised it would continue the hearing if Scott or Lynch wished to apply for a Shoreline Protection Permit.

Having received no response, on March 13, 1992, Del Mar sent Scott and Lynch certified notices of an April 6, 1992, administrative hearing to consider staff's recommendation they be ordered, at their own expense, to remove the noncomplying structures. The notices informed of the right to present evidence and warned: "In any further legal proceedings concerning this subject matter you may be limited to the evidence and issues raised at this hearing."

Jack D. Scott, an attorney, appeared at the hearing on his and Lynch's behalf. He did not, however, present any evidence. After staff's presentation, Del Mar adopted resolution Nos. 92-39 and 92-40, declaring the Lynch and Scott improvements to be encroachments extending into the Shoreline Protection Area, which deny public access to the beach and adversely impact "shore processes." Del Mar ordered abatement of the nonconforming improvements by May 15, 1992. Lynch and Scott removed their brick patios, but not the seawalls and rip rap. Over their objections, Del Mar removed them in late May 1992. Scott and Lynch did not apply for Shoreline Protection Permits to build seawalls closer to their homes.

In April 1993 Scott and Lynch sued Del Mar in inverse condemnation, alleging they were entitled to compensation for the property taken for public beach, the improvements and increased vulnerability of their homes to storms, vandalism and burglary. In a bench trial on the issue of liability ¹, the court determined there was no taking of the underlying property because the subdivider dedicated it to public use in 1912. The court also determined there was no taking of the improvements as Del Mar had the power to declare them public nuisances and to abate On appeal, Scott and Lynch contend there is insufficient evidence the property in question was dedicated to public use, and alternatively, any public right was abandoned. They further contend the trial court erred in relying upon Del Mar's nuisance finding and in imposing an unreasonable mitigation requirement.

them; because Scott and Lynch failed to pursue a mandamus action challenging Del Mar's nuisance finding, the court was bound by that finding. Lastly, the court determined there was no entitlement to diminution in value caused by removal of the improvements because Scott and Lynch failed to mitigate damages by obtaining permits for protective seawalls in conformance with the Beach Overlay Zone.

I

DISCUSSION

A. Inverse Condemnation

"Both eminent domain proceedings and inverse condemnation actions implement the constitutional rule that private property may not be 'taken' (U.S. Const., 5th Amend.) or 'taken or damaged' (Cal. Const., art. I, § 19) for public use without just compensation. When a public entity exercises its power of eminent domain to condemn private property, there is ordinarily no question that it has 'taken or damaged' that property. But the same is not true of inverse condemnation: 'While, in eminent domain litigation, the focus is usually limited to the amount of compensation owed the property owner under the "just compensation" clause, in an inverse condemnation action, the property owner must first clear the hurdle of establishing that the public entity has, in fact, taken [or damaged] his or her property before he or she can reach the issue of "just compensation." ' [Citation.]" (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 939-940, 55 Cal.Rptr.2d 724, 920 P.2d 669.)

"A public entity 'takes or damages' private property when it causes physical damage to that property without physically invading it. (E.g., Holtz v. Superior Court (1970) 3 Cal.3d 296, 90 Cal.Rptr. 345, 475 P.2d 441 ... [withdrawal of lateral support caused by excavation of adjacent street]; Reardon v. San Francisco (1885) 66 Cal. 492, 6 P. 317 ... [converse: damage from increased lateral pressure caused by filling of adjacent street].) ... [p] A public entity also 'takes or damages' private property when it physically invades that property in any tangible manner. (E.g., Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129 ... [landslide]; Bauer v. County of Ventura (1955) 45 Cal.2d 276, 289 P.2d 1 ... [floodwaters].)" (San Diego Gas & Electric Co. v. Superior Court, supra, 13 Cal.4th at p. 940, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Inverse condemnation also lies where the government's conduct "results in an intangible intrusion onto the plaintiff's property that does not physically damage the property," if the "intrusion has resulted in a burden on the property that is direct, substantial, and peculiar to the property itself." (Ibid., citing Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 298, 142 Cal.Rptr. 429, 572 P.2d 43 [offensive odors emanating from sewage plant, rendering nearby home uninhabitable].)

B. Failure of Proof re Compensable Taking or Damaging

1. Land Underlying Improvements

The first question is whether the trial court correctly determined the land underlying the improvements Del Mar removed was public land. ² A statutory dedication is effected when, in compliance with the map act then in force, an offer of dedication is accepted by the public agency. (Galeb v. Cupertino Sanitary Dist. (1964) 227 Cal.App.2d 294, 301, 38 Cal.Rptr. 580.) Map 1450 of Del Mar Subdivision No. 3 depicts block numbers 124 through 127, between 21st and 24th Streets, which run east to west; each block contains residential lots, numbered 1 through 18. ³ A 15-foot-wide area designated "Public Sidewalk" runs north to south through the development, intersecting each block between lots 8, 9, 10 and 11 to the west, and 6, 7, 12 and 13 to the east. ⁴ The map contains South Coast Land Company's offer to "dedicate to the public use all public Highways shown on this map within this subdivision." The County accepted and recorded the dedication in June 1912.

Scott and Lynch assert "all public Highways" would exclude the Public Sidewalk. "Highway," however, was used at the relevant time to denote a variety of public rights-of-way. "Section 2618 of the Political Code as reenacted in 1883, and which was in force until 1935, declared the law with respect to what constituted public highways and antedated the earliest travel over the route by vehicle. As reenacted it read as follows: 'In all counties of this state public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges....' " (Ball v. Stephens (1945) 68...