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 City of Solana Beach
Section 2
Shoreline and Coastal Bluff Management Strategies Draft MEIR
Project Description
include homes or other structures built after the effective date of the Coastal Act but at a time
when no shoreline erosion problems were known to exist.
Furthermore, neither the Solana Beach City Attorney nor the City's outside legal counsel for
environmental issues sees any inherent conflict between 30235 and 30253. Rather, they
read 30253 as merely providing that the Commission cannot approve new homes or other
"new development" where, at the time such development is proposed, it is clear that a seawall
or similar protective device would be necessary to protect the new development. Section 30235
seems to address a different sort of situation: one in which a home or other structure perhaps
built after 1976 is now facing erosion problems that were not evident when the structure was
first approved. Section 30235 seems to require the Commission to approve permits for devices
to protect such structures, provided that, as noted earlier, the proposed devices can be
"designed to eliminate or mitigate adverse impacts on local shoreline sand supply[.]"
Mr. Cardiff's argument would likely conflict with the views of blufftop homeowners who would
likely argue that a Planned Retreat Alternative could create an uncompensated "taking" of their
property. As discussed below, the Planned Retreat Alternative, if effectively implemented at
both the state and local level, would likely give rise to claims that the denial of permission to
build protective structures constitutes an unconstitutional "regulatory taking" of private property
without just compensation. Without predicting how such a challenge would fare in court, City
Staff notes that, in determining whether a taking has occurred, courts generally examine what
uses of the land were allowed or proscribed at the time title was acquired, not when structures
were placed on the property. (See Lucas v. South Carolina Coastal Council (1992) 505 U.S.
1003, 1028 ("[w]here the State seeks to sustain regulation that deprives land of all economically
beneficial use, we think it may resist compensation only if the logically antecedent inquiry into
the nature of the owner's estate shows that the proscribed use interests were not part of his title
to begin with").).
In short, there is no clear answer to the question of whether 30235 protects only those
structures that existed as of 1976. The traditional view, held by the California Coastal
Commission, is that the statute does apply to structures post-dating 1976. Still, no reported
Court of Appeal or California Supreme Court decision provides an unequivocal answer. Current
understanding of the law, however, would require the California Coastal Commission to
continue to issue coastal development permits for shoreline protection devices needed to
protect homes built after 1976. This approach would frustrate any unilateral attempt by the City
to implement the Planned Retreat Alternative.
Another barrier to the City's authority to implement the Planned Retreat Alternative is the
potential for emergency permitting of shoreline protection structures by the California Coastal
Commission. The Coastal Act provides that, in the face of an emergency, the Executive
Director of the Commission may issue permits without having to comply with the normal
procedural requirements of the Act. (Pub. Resources Code, 30624; Cal. Code Regs, tit. 14,
13136 et seq.) An "emergency" is defined as "a sudden unexpected occurrence demanding
immediate action to prevent or mitigate loss or damage to life, health, property or essential
public services." (Cal. Code Regs, tit. 14, 13009.) Property owners would not have a vested
Project No. 323530000
Page 2-34
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