By Aaron J. Sobaski
A $2 million mitigation fee based on the present value of lost present and future public shoreline recreational values and imposed by the California Coastal Commission as a condition to the issuance of a development permit for the construction of a sea wall to prevent shoreline erosion is not an unconstitutional taking.
Background
The Ocean Harbor House condominium project is located on Monterey Bay in Monterey, California. Due to significant shoreline erosion over the years, the oceanfront buildings of the project have become threatened by destabilization. The Ocean Harbor House Homeowner’s Association unsuccessfully tried a number of measures to protect the threatened structures, and eventually determined that a 585‑foot seawall was needed. The Association applied to both the California Coastal Commission and the City of Monterey for permits to build the sea wall (approval from both agencies was required because the City does not have a Commission‑approved Local Coastal Program).
The City’s Planning Division prepared an environmental impact report (EIR) to assess the impact of the proposed sea wall. The EIR determined that the proposed sea wall would eventually cause significant erosion of approximately one acre of the public Del Monte Beach on either side of the protected coastal area of the project, essentially making the protected area a peninsula into Monterey Bay. The City approved the proposed sea wall with a few minor conditions. The Commission also agreed to approve the sea wall, but only if certain conditions were met. The...
