Lindstrom v. California Coastal Commission

Reversing a trial court, the California Court of Appeal held in September that the California Coastal Commission had not abused its discretion by requiring that a new residence on an oceanside bluff be set back 60 to 62 feet from the edge of the bluff rather than the 40 feet approved by the City of Encinitas. The Commission’s required setback was based in part on the use of a higher erosion rate—due to expected sea level rise—than what was predicted in the owner’s geotechnical report. The appellate court also upheld the Commission’s authority to impose a condition barring the homeowners from constructing a bluff or shoreline protective device to protect the new home and found that this condition was not an unconstitutional taking. In addition, the court upheld a requirement that the homeowners obtain and follow recommendations of a geotechnical report, including removal of the threatened portion of a structure, if the bluff eroded to within 10 feet of the principal residence. The appellate court concluded, however, that a condition requiring the owners to remove the residence if a government agency ordered that the structure not be occupied was overbroad and unreasonable as drafted. The owners had expressed concerns that any government entity “could order the house ‘not to be occupied’ without any justification, or with unsupported claims about the impact of projected sea-level rise and future erosion of the bluff.”