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 City of Solana Beach
Section 2
Shoreline and Coastal Bluff Management Strategies Draft MEIR
Project Description
required to serve coastal-dependent uses or to protect existing structures or public
beaches in danger from erosion and when designed to eliminate or mitigate adverse
impacts on local shoreline sand supply. Existing marine structures causing water
stagnation contributing to pollution problems and fish kills should be phased out or
upgraded where feasible."
The use of the word "shall" within the statute indicates that property owners are entitled to such
permits if the requisite conditions can be satisfied (i.e., if the proposed structures can be
"designed to eliminate or mitigate adverse impacts on local shoreline sand supply").
Traditionally, the California Coastal Commission has treated its "Sand Mitigation Fee" as
adequate mitigation to justify the approval of shoreline protection structures.
No court in any reported case has directly addressed the issue of whether 30235 gives
property owners, upon the proper showing, an absolute right to a permit for a seawall. A few
reported court cases have mentioned or quoted 30235, however, in a manner that suggests
that its mandatory language is, in fact, mandatory. None of these cases, though, squarely holds
that, upon a proper showing, the California Coastal Commission must issue a coastal
development permit for a shoreline protective device. (See, e.g., Pacific Legal Foundation v.
California Coastal Commission (1982) 33 Cal.3d 158, 164; Barrie v. California Coastal
Commission (1987) 196 Cal.App.3d 8, 20; Lechuza Villas West v. Superior Court (1997) 60
Cal.App.4th 218, 224.)
One well-known reported Court of Appeal case has addressed a different issue that some
observers have misread to indicate that California Coastal Commission approval under 30235
is not mandatory. (See Titus, "Rising Seas, Coastal Erosion, and the Takings Clause: How to
Save Wetlands and Beaches Without Hurting Property Owners," 57 Maryland Law Review
1279, 1374 (1998).) A close reading of the case does not support that conclusion.
In Whaler's Village Club v. California Coastal Commission (1985) 173 Cal.App.3d 240, the
appellate court had to determine the proper judicial "standard of review" for determining the
propriety of conditions imposed by the California Coastal Commission on the approval of a rock
revetment to protect an applicant's shoreline homes. The conditions at issue required the
homeowners to surrender easements that allowed public access to the affected beach. The
specific issue before the court was whether the deferential "substantial evidence" standard of
review should apply, or whether, instead, the nondeferential "independent judgment" standard
was proper. By statute, the latter is appropriate only where a reviewing court is reviewing an
agency action substantially affecting a fundamental vested right. The Court of Appeal held that
the substantial evidence standard was appropriate because "Whaler's Village did not have a
fundamental vested right to develop property in the coastal zone without a permit issued
pursuant to the Coastal Act." (Id. at p. 254.).
Nothing in the decision suggests that, upon a proper showing, a property owner who has
applied to the California Coastal Commission for a shoreline protection structure was not
entitled to receive an approval. Rather, the court was concerned only with the propriety of the
conditions of approval, which were upheld as being "reasonably related" to the impacts caused
Project No. 323530000
Page 2-32
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