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 City of Solana Beach
Section 2
Shoreline and Coastal Bluff Management Strategies Draft MEIR
Project Description
Planned Retreat Alternative would necessarily entail, eventually, the loss of most of these
homes. In light of the litigious character of modern California, it seems virtually inevitable that
some of the owners of those lost homes will sue either the City or the California Coastal
Commission, or whatever other governmental entity might allegedly be "at fault," to demand
compensation for the lost property values. The discussion below examines the likely character
of those arguments.
The primary "takings" arguments are likely to be as follows. First, blufftop owners could argue
that, because San Diego County (by zoning the subject area for development), the State of
California (by enacting 30235), and the City of Solana Beach (by adopting the Shoreline and
Coastal Bluff Protection Ordinance) gave property owners the reasonable expectation of being
able to obtain shoreline protection structures to protect their homes, these agencies cannot now
"change the rules" in a way that wipes out or grossly reduces the value of the investments made
in reliance on the policies at issue. The second (and complementary or alternative) argument
would be that the repeal of either 30235 or the existing City Ordinance would lead to a
complete denial of "all economic use" of the affected blufftop properties, since the properties
would become useless for any economically viable purpose. Under both of these arguments,
affected property owners would likely argue that their perceived "right" allows them to build
structures even on public land (such as that owned by the City), since both 30235 and the
City's Ordinance have created expectations of a continuing right to use such land if necessary.
According to the United States Supreme Court, "regulatory takings" result when a government
agency, in the exercise of its police power, adopts or enforces a regulation that "goes too far,"
either by failing to substantially advance legitimate state interests or by denying the owner all
economically beneficial or productive use of his land. (Pennsylvania Coal Co. v. Mahon (1922)
260 U.S. 393, 415; Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003.)
Compensation might be required even in the absence of a denial of the full economic use of
property, depending on the reasonable "investment-backed expectations" of property owners
who spent money on their land in good faith reliance on policies in effect at the time of their
investments. (See Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104,
124.).
Property owners can obtain redress for regulatory takings by bringing an action in inverse
condemnation to recover damages for the injury to, or loss of, property. Courts decide whether
a regulation is a taking by weighing its importance, economic impact, and interference with
"investment-backed expectations." Balancing these factors is an inherently subjective process;
and the facts of each case must be examined carefully. In performing the required balancing,
the court must consider, among other factors, whether the government tailored the regulatory
constraints it imposed on the use of property to only those that were necessary to achieve the
public purpose of the regulation at issue. The balancing test employed by courts suggests that
regulations protecting relatively insignificant public interests would warrant a lower threshold for
finding a taking than regulations that protect a more important public interest.
A regulation may not be Draconian enough to cause a taking when the regulation destroys the
economic utility of only one part of a lot, as long as the parcel as a whole remains valuable.
Project No. 323530000
Page 2-36
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