Martin v. Cal. Coastal Comm'n

66 Cal.App.5th 622

281 Cal.Rptr.3d 343

Gary MARTIN et al., Plaintiffs and Appellants,

v.CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

D076956

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

Filed June 23, 2021

FisherBroyles and Paul J. Beard II, Los Angeles, for Plaintiffs and Appellants.

Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney General, Daniel A. Olivas, Assistant Attorney General, Jamee J. Patterson and Kimberly R. Gosling, Deputy Attorneys General for Defendant and Appellant.

McCONNELL, P. J.

Gary and Bella Martin appeal from a judgment entered after the trial court granted in part and denied in part their petition for writ of administrative mandate challenging the imposition of certain special conditions placed on the development of their property—a vacant, oceanfront lot in Encinitas—by the California Coastal Commission (Commission). The Commission also appeals the judgment. The Martins' appeal challenges a condition requiring them to eliminate a basement from their proposed home, while the Commission challenges the trial court's reversal of its condition requiring the Martins to set back their home 79 feet from the bluff edge. Because we agree with this court's recent decision in Lindstrom v. California Coastal Com. (2019) 40 Cal.App.5th 73, 252 Cal.Rptr.3d 817 ( Lindstrom ) interpreting the same provisions of the Encinitas Local Coastal Program (LCP) and Municipal Code at issue here, we reverse the trial court's invalidation of the Commission's setback requirement. We affirm the court's decision to uphold the basement prohibition.

FACTUAL AND PROCEDURAL BACKGROUND

The Martins own an 11,394 square-foot, blufftop vacant lot in Encinitas. 5,400 square feet of the lot sits atop the bluff, with the rest extending west down the bluff's face. They applied to the City of Encinitas (the City) for a Coastal Development Permit (CDP) to build a two-story, 3,110 square-foot house with an additional 969 square-foot basement and 644 square-foot garage. The proposed design set the first story of the home back 40 feet from the 93-foot high bluff edge, and set back the second story cantilevered deck 32 feet. In support of the application, and as required by the LCP and Municipal Code, the Martins submitted geotechnical reports certifying the home satisfied the requirements of the LCP contained in Municipal Code section 30.34.020. The City's third-party geotechnical consultant reviewed those reports and agreed with the analysis.

On April 21, 2016, the City Planning Commission adopted a resolution consolidating two lots owned by the Martins into one and approving the CDP for their home. On May 25, 2016, two Commissioners appealed the City's approval to the Commission.¹ At its meeting on July 13, 2016, the Commission found the appeal raised a "substantial issue on the grounds on which the appeal was filed" and continued the matter to a future hearing. In the subsequent months, the Martins' geotechnical consultant GeoSoils, Inc. (GSI) and the Commission staff exchanged reports about the appropriate setback for the proposed development. The parties also met several times to discuss the project.

At the Commission's August 8, 2018 meeting, Commission staff presented a report recommending approval of the home but with additional conditions on the Martins' development of their property, including that the home be set back 79 feet from the bluff's edge and barring the design from including a basement. After a divided vote, the Commission adopted the staff's recommendation and approved the development with the recommended additional conditions.²

The Commission staff's report explained its position that the City's approval was inadequate because it failed to account for the LCP's requirement that new development be set back far enough to provide for a safety factor of 1.5 at the end of 75 years. The safety factor is a calculation that addresses bluff stability, i.e. the risk of landslides or bluff failure, while the time period of 75 years addresses bluff erosion over time.³

The two "special conditions" imposed by the Commission at issue on appeal are special condition 1(a), requiring the 79-foot setback from the bluff edge, and special condition 1(c), the basement prohibition.⁴ In determining the 79-foot setback, the Commission relied on the analyses of its staff geologist, Dr. Joseph Street, and its staff engineer, Dr. Lesley Ewing. Drs. Street and Ewing reached their conclusions after considering the reports of GSI, hired by the Martins to evaluate the bluff for purposes of permitting the development. GSI opined that a 40-foot setback complied with the LCP, and certified that the home would be "safe from coastal bluff retreat over its 75-year design life without the need for shoreline protection." Drs. Street and Ewing also reviewed reports by another consultant hired by the Martins, Dr. Ben Benumof, who likewise endorsed the development with a 40-foot setback.

The Commission's staff arrived at 79 feet by adding the setback required to achieve a 1.5 factor of safety (40 feet) and the anticipated erosion over 75 years (39 feet). As to the 1.5 factor of safety, the Commission agreed with GSI that it was presently located 40 feet back from the bluff edge. As to the erosion rate, the Commission staff also agreed with GSI's historic rate of 0.20 feet per year. The Commission staff, however, disagreed with GSI's estimate of a long-term future rate of erosion of 0.27 feet per year. Drs. Street and Ewing concluded that rate did not "adequately account for the likely acceleration of bluff retreat rates in the future due to sea level rise...."

The Commission staff calculated the future erosion rate to be 0.52 feet per year (39 feet over 75 years). It determined this rate using the SCAPE method, a scientifically supported methodology that incorporates site-specific information and sea level rise estimates.⁵ GSI had also used a methodology similar to SCAPE at one point, and had calculated an erosion rate of 0.344 feet per year (which it later revised to 0.27 feet per year). Drs. Street and Ewing concluded GSI's rate was not adequate because GSI had relied on a lower projection of future sea level rise than was supported by the most recent scientific literature.

Drs. Street and Ewing concluded that 0.52 feet per year was more accurate based on the State of California's most current sea level rise science and recommendations, as outlined in 2017 and 2018 reports by the State's Ocean Protection Council Science Advisory Team. Using data and suggested risk profiles from those reports, the Commission staff adopted a recommended "medium-high risk aversion scenario" resulting in the 0.52 feet per year rate. Commission staff also noted this rate was generally consistent with the 0.49 feet per year erosion rate used by the Commission for the prior five new blufftop home approvals in Encinitas. The rate also fell within the range of uncertainty projected in CoSMoS, a state-of-the-art modeling tool developed by the U.S. Geological Survey.⁶

The Commission staff report also addressed the impact of the proposed 40-foot setback on the project's compliance with the public access and recreation policies of the Coastal Act. The report explained that, in conjunction with sea level rise, if a shoreline protective device became necessary to protect the structure, the installation of such protection would lead to the loss of beach access. In the Commission staff's view, a 79-foot setback, among the other conditions, was necessary to avoid this impact.

As for the proposed basement, the Commission staff found that the Encinitas bluffs are hazardous and unpredictable, and bluff retreat may eventually cause the basement to be exposed, even with a 79-foot setback. The Commission staff also found that removing or relocating the basement, if feasible, would significantly alter the bluff and could threaten its stability. The Martins submitted a plan for removing the basement, along with GSI's certification of the plan. The Commission, however, found the removal plan was insufficient because it failed to "provide any detail related to geologic stability risks of removing a basement on an eroding blufftop site, [did] not detail how removal of the basement would impact stability of neighboring structures, and [did] not detail how the basement void could be filled" upon removal. Thus, the Commission concluded the proposed basement was inconsistent with the LCP's requirement that all blufftop structures be removable.

After the Commission's conditional approval, the Martins filed a petition for writ of administrative mandate and complaint for declaratory and injunctive relief challenging special conditions 1(a) (the 79-foot setback), 1(c) (the basement prohibition) and 3(a) (the bluff and shoreline armoring device prohibition). In addition to seeking a writ of mandate reversing the Commission's conditional approval, the Martins also sought a declaration that "the Commission's bluff-edge setback methodology" is unlawful, an injunction to preclude the Commission's future use of the methodology, a declaration that "the Commission's policy of requiring the waiver of future shoreline protection as a condition" of approval is unlawful, and an injunction preventing "the Commission from enforcing or implementing such policy."

After briefing and a hearing, the trial court issued an order finding special condition 1(a) was inconsistent with the LCP and the Commission's imposition of the condition was an abuse of discretion. The court also agreed with the Martins that the imposition of special condition 3(a) was an abuse of the Commission's discretion. The court rejected the Martins' challenge to special condition 1(c), and denied their requests for injunctive and declaratory relief. Thereafter, the court entered judgment against the Commission and issued a peremptory writ of administrative mandate directing the Commission to set aside and...