Amicus Curiae Brief — Martins Beach 1, LLC, et al., Petitioners v. Surfrider Foundation

No. 17-1198

In the Supreme Court of the United States

MARTINS BEACH 1, LLC AND

MARTINS BEACH 2, LLC,

Petitioners,

v.

SURFRIDER FOUNDATION,

Respondent.

On Petition for a Writ of Certiorari to

the First Appellate District Court of Appeal of

the State of California

BRIEF OF THE CALIFORNIA BUSINESS

PROPERTIES ASSOCIATION AS AMICUS

CURIAE IN SUPPORT OF THE PETITIONERS

KENNETH B. BLEY

Counsel of Record

STANLEY W. LAMPORT

COX, CASTLE & NICHOLSON, LLP

2029 Century Park East, Suite 2100

Los Angeles, CA 90067

(310) 284-2200

kbley@coxcastle.com

slamport@coxcastle.com

Counsel for Amicus Curiae

i

RULE 29.6 STATEMENT

California Business Properties Association has no

parent company, and no publicly held company holds

any ownership interest in the entity.

ii

TABLE OF CONTENTS

Page

RULE 29.6 STATEMENT ............................................ i

TABLE OF AUTHORITIES...................................... iii

BRIEF OF THE CALIFORNIA BUSINESS

PROPERTIES ASSOCIATION AS AMICUS

CURIAE

IN

SUPPORT

OF

THE

PETITIONERS ..................................................... 1

CALIFORNIA

BUSINESS

PROPERTIES

ASSOCIATION’S

INTERESTS

ARISE

BECAUSE THE RIGHT TO EXCLUDE

OTHERS FROM PRIVATE PROPERTY IS

OF SIGNIFICANT CONCERN TO ITS

MEMBERS ............................................................ 1

SUMMARY OF THE ARGUMENT ............................ 3

ARGUMENT ............................................................... 7

I.

Resolving The Meaning Of “Permanent” Is

Of Critical Importance ...................................... 7

II. Conditioning The Exercise Of The Right To

Exclude Others On Governmental Approval

Places The Right Beyond The Reach Of

Many ................................................................ 11

III. Interpreting

“Permanent”

To

Mean

“Unending” Instead Of “Established”

Produces Outcomes That Eviscerate A

Basic Property Right ...................................... 16

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Arkansas Game and Fish Commission v. U.S.,

568 U.S. 23 (2012) ............................................ 10

City of Needles v. Griswold,

6 Cal.App.4th 1881, 1896 (1992) ...................... 16

Coronado Yacht Club v. California Coastal Com.,

13 Cal.App.4th 860, 866-873 (1993) ................. 15

Hendler v. U.S.,

952 F.2d 1364, 1375, (Fed. Cir. 1991) ........... 7, 9

Loretto v. Teleprompter Manhattan CATV

Corp.,

458 U.S. 419, 434-435 (1979) ......................... 4, 7

LT-WR, L.L.C. v. California Coastal Com.,

152 Cal.App.4th 770, 806 (2007) ...................... 16

Nollan v. California Coastal Commission,

483 U.S. 825, 831 (1987) ........................... passim

Penn Cent. Transp. Co. v. City of New York

438 U.S. 104, 123-130 (1978) ............................ 10

Sierra Club v. County of Napa,

121 Cal.App.4th 1490, 1497 (2004) .................. 20

Surfrider Foundation v. Martins Beach 1,

LLC

14 Cal.App.5th 238, 273 (2017) ........................ 10

Statutes

Cal Code Civ. Proc. §1094.5(c) ............................... 20

Cal. Code Civ. Proc. §1094.5(b) .............................. 19

iv

TABLE OF AUTHORITIES (Cont.)

Cal. Gov’t Code §65922(b) ...................................... 14

Cal. Gov’t Code §65940 .......................................... 13

Cal. Gov’t Code §65941 .......................................... 13

Cal. Gov’t Code §65943 .......................................... 13

Cal. Gov’t Code §65950(a)(1) .................................. 13

Cal. Gov’t Code §65957 .......................................... 13

Cal. Pub. Res. Code §30500(a) ............................... 12

Cal. Pub. Res. Code §30603(a)(1) .................... 12, 14

Cal. Pub. Res. Code §30619(a) ............................... 12

Cal. Pub. Res. Code §30621 ................................... 14

Cal. Pub. Res. Code §30621(a) ............................... 15

Cal. Pub. Res. Code §30625(b)(1) ........................... 14

Pub. Res. Code §30106.6 ........................................ 12

Pub. Res. Code §30210 ........................................... 14

Pub. Res. Code §30600(d) ....................................... 12

Pub. Res. Code §30603(b) ....................................... 14

Pub. Res. Code §30625(a) ....................................... 12

Pub. Res. Code §30801 ........................................... 12

Regulations

Cal. Code of Reg., Tit. 14, § 13065 ......................... 20

San Mateo County Zoning Regs §6328 .................. 12

San Mateo County Zoning Regs §6328.12 ............. 14

San Mateo County Zoning Regs §6328.16 ............. 14

San Mateo County Zoning Regs §6328.16(b) ........ 14

v

TABLE OF AUTHORITIES (Cont.)

San Mateo County Zoning Regs §6328.7(f) ........... 13

San Mateo County Zoning Regs §6328.9 ............... 14

Constitutional Provisions

Article 1, Sec. 19 (a) of the California

Constitution ...................................................... 18

1

BRIEF OF THE CALIFORNIA BUSINESS

PROPERTIES ASSOCIATION AS AMICUS

CURIAE IN SUPPORT OF THE PETITIONERS

California Business Properties Association

(“CBPA”) respectfully submits this amicus curiae

brief in support of the Petition for Writ of Certiorari

of Petitioners Martins Beach 1, LLC and Martins

Beach 2, LLC. CBPA has received the parties’

written consents to file this brief as amicus curiae in

support of the petitioners.1

CALIFORNIA BUSINESS PROPERTIES

ASSOCIATION’S INTERESTS ARISE BECAUSE

THE RIGHT TO EXCLUDE OTHERS FROM

PRIVATE PROPERTY IS OF SIGNIFICANT

CONCERN TO ITS MEMBERS

CBPA is a commercial real estate trade

association that serves as the legislative and

regulatory advocate for property owners, tenants,

developers, retailers, contractors, land use attorneys,

brokers, and other professionals in the commercial

real estate industry. With over 10,000 members,

CBPA is the largest consortium of commercial real

estate professionals in California.

CBPA is the designated legislative advocate for

the International Council of Shopping Centers

(ICSC), NAIOP of California, the Commercial Real

Estate Developers Association (NAIOP), the Building

Owners and Managers Association of California

(BOMA), the Retail Industry Leaders Association

(RILA), the Institute of Real Estate Management

No counsel for any of the parties authored any part of this

brief. No person or entity other than the CBPA has made any

monetary contribution to the preparation or submission of this

brief.

1

2

(IREM), the Association of Commercial Real Estate –

Northern and Southern California (ACRE), the

National Association of Real Estate Investment

Trusts (NAREIT), AIR Commercial Real Estate

Association, and the California Association for Local

Economic Development (CALED).

CBPA is the recognized voice of all aspects of

the commercial, industrial, and retail real estate

industry in California. Its members range from some

of America’s largest retailers and commercial

property owners and tenants to individual and

family run commercial real estate interests.

CBPA supports the Petition for Writ of

Certiorari in this case. The ability to exercise rights

to exclude the public from private property when

there is no established right of public access is

extremely important for commercial property

owners. Every private property owner invests in real

estate with the expectation that, in the absence of an

established public right, their ownership includes the

right to exclude public passage over their property of

any duration. The right to exclude is a fundamental

premise that underlies private ownership and affects

every owner’s ability to control their properties in

fundamental ways. The Fifth Amendment protects

abridgement of this right through government

action, by prohibiting the taking unless government

first compensates the owner.

As a result of the California court of appeal’s

decision in this case, an owner’s right to exclude

public access over and use of private property is now

qualified in California. Under the court of appeal’s

decision, a per se taking would occur only when

public use is of an unlimited duration. Under this

decision, any public access over private property

3

whose duration could be limited would not be a

taking unless the property owner or tenant proves

that at some undefined point in time a taking has

occurred based on this Court’s ad hoc multi-factor

takings analysis.

The court of appeal’s decision represents a

significant departure from the longstanding

principles regarding the nature of the right to

exclude public use of private property – an essential

stick in the bundle of protected property rights which has significant consequences for commercial

real estate. This departure opens the door for the

State and localities to adopt or enforce laws that

compel property owners to accept uninvited public

access for “limited durations” without incurring any

liability for a taking unless the owner can afford to

successfully litigate a balancing test in court after

first going through an administrative process. The

court of appeal’s decision would curtail a right that is

fundamental to property ownership.

SUMMARY OF THE ARGUMENT

This case involves an extremely important

issue. It concerns a property owner’s or tenant’s

right to exclude the public from private property in

circumstances where there is no recorded easement

or adjudicated right of public access. In this case,

property owners who voluntarily allowed public

recreational access and use over their private

property decided to discontinue that practice. They

exercised their right to exclude the public from

entering their property without their permission.

In this case, the owners are not proposing to

erect any structure or engage in any activity that

would be commonly understood to be development.

4

The only activity contemplated involves no longer

inviting the public to descend a private road to a

private beach. The acts consist of closing an existing

gate, employing security guards to ward off

trespassers on the property and painting over a sign

advertising the use that the owners are

discontinuing.

In practical terms, the California court of appeal

decision holds that the property owners cannot

exercise their right to exclude others and must allow

ongoing and continuous public recreational access

over their property until such time as they apply for

and obtain a coastal development permit allowing

the owners to exercise that right.

The fundamental question raised by the

Petition is whether a state law, in this case the

California Coastal Act, can compel an owner in such

circumstances, to incur the expense and go through

the process of obtaining a permit before the owner

can exercise that right.

The issue stems from this Court’s use of the

word “permanent” in its physical takings

jurisprudence. As articulated in Nollan v. California

Coastal Commission, 483 U.S. 825, 831 (1987), a per

se taking occurs when governmental action results in

“permanent physical occupation” of the property by

the government itself or by others. Nollan states,

“[O]ur cases uniformly have found a taking to the

extent of the occupation, without regard to whether

the action achieves an important public benefit or

has only minimal economic impact on the owner,”

(Nollan, supra, at 831-832, quoting Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419,

434-435 (1979). Nollan then states, “We think a

‘permanent physical occupation’ has occurred, for

5

purposes of that rule, where individuals are given a

permanent and continuous right to pass to and fro,

so that the real property may continuously be

traversed, even though no particular individual is

permitted to station himself permanently upon the

premises.” Nollan, supra, at 832.

There is no question in this case that California

courts have interpreted the California Coastal Act to

require the Martins Beach owners to suffer

continuous unwelcomed public recreational use of

their property.

The question is whether it is

“permanent.”

Specifically,

the

question

is

whether

“permanent” means “established” or “fixed,” in which

case the government mandated public invasion in

issue is a per se taking, or whether it means

“unending,” in which case the current ongoing

invasion is only a temporary taking, subject to this

Court’s complicated, ad hoc multi-factor takings

analysis.

The answer to this question determines whether

government can enact a law requiring an owner or

tenant to continue to allow unwelcomed recreational

use of private property until a permit is obtained to

discontinue it or whether a law that fixes a period of

unconsented public recreational use of private

property in this way violates the Takings Clause.

There is a compelling need for the Court to

resolve this issue. The right to exclude others from

private property protects a core interest that all of us

have in our private property. That interest is

violated whenever an uninvited invasion occurs. Our

sense of violation does not depend on whether the

6

continuous uninvited

eventually terminable.

invasion

is

unending

or

Conditioning the exercise of the right to exclude

others on obtaining a permit akin to a California

coastal development permit restricts the right to

those who have the wherewithal to go through that

process. Obtaining a coastal development permit in

California is a costly multi-year endeavor that many

simply cannot afford. Conditioning the exercise of

the essential right to exclude others on running

California’s coastal permitting gauntlet converts a

universal right to one that is only available to those

who can afford to exercise it and have the fortitude to

go through it.

Furthermore, interpreting the Court’s use of the

word “permanent” to mean that only unending

invasions are per se takings allows government to

create scenarios where the ongoing, continuous

invasion is not unending in theory, but never ending

in practice. It is an outcome that renders the right to

exclude illusory.

These outcomes do not obtain if “permanent”

means “established” or “fixed” instead of “unending.”

The fact that lower courts are split on the meaning of

this Court’s terminology, and the split leads to

dramatically different results with significant

consequences, highlights why this Court should

grant certiorari. The fact that the outcome in this

case will affect the exercise of a fundamental

property right along 1,100 miles of this nation’s

coastline underscores the importance of granting

certiorari.

7

ARGUMENT

I.

Resolving The Meaning Of “Permanent” Is

Of Critical Importance

A property owner’s ability to exclude the

uninvited from their private property is not an

abstract concept. We all rely in one degree or

another on the ability to exclude the uninvited from

our premises. It is fundamental to a sense of safety,

security, privacy and control that we expect when we

retreat from the public domain to our private spaces.

“The notion of exclusive ownership as a property

right is fundamental to our theory of social

organization. In addition to its central role in

protecting the individual's right to be let alone, the

importance of exclusive ownership—the ability to

exclude freeriders—is now understood as essential to

economic development, and to the avoidance of the

wasting of resources found under common property

systems.” Hendler v. U.S., 952 F.2d 1364, 1375,

(Fed. Cir. 1991)

As this Court observed in Nollan, “Perhaps

because the point is so obvious, we have never been

confronted with a controversy that required us to

rule upon it, but our cases’ analysis of the effect of

other governmental action leads to the same

conclusion. We have repeatedly held that, as to

property reserved by its owner for private use, ‘the

right to exclude [others is] ‘one of the most essential

sticks in the bundle of rights that are commonly

characterized as property.’’” Nollan, supra, at 831,

quoting Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 433 (1982)

8

The right to exclude others protects our core

interest in not experiencing an unwelcomed,

government mandated invasion of our private

domain. The violation of that interest does not

depend on whether the government mandate causing

the unwelcomed invasion lasts forever or for a day.

It depends on the fact that an invasion occurs as a

result of a government mandate.

The protection of this core interest corresponds

with the reason a government mandated physical

invasion is a per se taking. Nollan is clear that when

it comes to a taking resulting from permanent and

continuous public passage over private property,

courts do not look at the economic impact on the

owner relative to the public benefit. Nollan, supra,

at 832. This is true because the core interest that

the right to exclude protects – to be free of

unwelcomed invasions of private property – is not

qualified in its nature.

No doubt there are questions whether minor,

incidental, unintended or inconsequential invasions

cross the threshold between an ordinary trespass

and a taking of the right to exclude. The Court’s use

of the term “permanent” allows for such a

distinction. However, this case clearly crosses the

threshold. There is no dispute that the Martins

Beach owners are enduring a government mandated

ongoing and unwelcomed public invasion on their

unquestionably private property.

There is also no dispute that if the invasion in

this case is “permanent,” it is a per se taking. The

court of appeal decision recognizes that the invasion

is a per se taking if it is “permanent” in the sense of

unending.

If, however, “permanent” means

“established” or “fixed,” the invasion is a per se

9

taking at the moment the invasion occurs as a result

of a government mandate.

Limiting a per se physical occupation taking to

unending invasions disconnects the right from the

interest it protects. There is no justification for

calling a violation of the right to exclude others from

private property a per se taking only if it’s unending,

but not a per se taking if it might end someday.

Under either characterization, the owner or tenant

experiences the same violation of their sense of

safety, security, privacy and control that an

unwelcomed invasion of their private property

entails.

In the end, a “permanent physical occupation”

turns on whether the government mandate is fixed

and whether the public use of the private property

pursuant to that mandate has occurred. See e.g.

Hendler v. U.S., 952 F.2d 1364, 1377 (Fed. Cir. 1991)

[“If the term ‘temporary’ has any real world reference

in takings jurisprudence, it logically refers to those

governmental activities which involve an occupancy

that is transient and relatively inconsequential, and

thus properly can be viewed as no more than a

common law trespass”].

By

interpreting

“permanent”

to

mean

“unending,” the court of appeal classifies all

potentially terminable invasions as temporary

takings, subject to the murky ad hoc balancing of

public interests and private investment backed

expectations, which Nollan very clearly states does

not apply to a “permanent” physical occupation

taking. Here again, there is no justification for the

distinction, when the effect of the violation on the

property owner or tenant is the same.

10

The court of appeal’s conclusion relies heavily

on Arkansas Game and Fish Commission v. U.S., 568

U.S. 23 (2012). According to the court of appeal,

Arkansas Game reaffirms the limited scope of the

Court’s

per

se

physical

invasion

takings

jurisprudence.

Surfrider Foundation v. Martins

Beach 1, LLC, 14 Cal.App.5th 238, 273 (2017).

There is a big difference between the nature of

the taking this Court was addressing in Arkansas

Game and the ongoing public recreational use

invasion occurring here. Arkansas Game concerned

whether periodic flooding attributed to a public

works project was a taking. This Court’s analysis

recognized that a taking in a flooding context

inherently involves an interplay between natural

forces and government action, which is not

susceptible to a per se rule.

The question in

Arkansas Game was whether subjecting private

property to natural forces that periodically inundate

a property could result in a taking. In that context,

this Court concluded that the temporary flooding

could be compensable if it reached the point of being

a taking under the ad hoc, multi-factored, situational

taking analysis this Court set forth in Penn Cent.

Transp. Co. v. City of New York, 438 U.S. 104, 123130 (1978).

Here, there is no interplay between natural

forces and government acts that leaves in question

whether a physical occupation taking has occurred.

The California courts have very clearly held that the

owners are compelled by the California Coastal Act

to remain open for ongoing, continuous public

recreational use of their private property. The

owners here experience the same violation whether

11

this unwelcomed invasion is unending or potentially

terminable.

In this case, the burden is permanent in that it

is established. The landowners are compelled by

state law to accept ongoing and continuous public

access unless and until they navigate a costly and

arduous process to obtain government approval to

exercise the most fundamental of private property

rights.

The difference between whether this Court’s use

of the word “permanent” means “established” or

“unending” is the difference between whether the

right to exclude serves the interests that it purports

to protect. The split in the case law over the

meaning of “permanent” leads to profoundly different

outcomes that fundamentally affect all property

owners and tenants who rely on the right to exclude

the uninvited from their private premises in daily

life.

The outcome in this case will immediately affect

how the California Coastal Commission will

implement the Coastal Act along California’s 1,100

mile long coast. There is an urgent need for the

Court to resolve what it means in using the word

“permanent” in its physical occupation takings

jurisprudence.

II.

Conditioning The Exercise Of The Right

To Exclude Others On Governmental

Approval Places The Right Beyond The

Reach Of Many

Obtaining a coastal development permit

(“CDP”) in California is not an over-the-counter

proposition. It is an expensive and lengthy process

that many cannot afford.

12

Throughout most of California’s coastal zone,

the process begins in the city or county (in the case of

land located in an unincorporated area). The Coastal

Act requires cities and counties in the coastal zone to

prepare and obtain Coastal Commission approval of

a local coastal program (“LCP”), consisting of land

use plans, zoning maps and ordinances which

implement the Coastal Act in that jurisdiction. Cal.

Pub. Res. Code §§30500(a), 30106.6.

Once the

Commission has certified that a locality’s LCP is

consistent with the Coastal Act, permitting authority

shifts to the city or county. Cal. Pub. Res. Code

§§30619(a), 30600(d). The city or county’s approval

of a CDP on land between the sea and the first public

road paralleling the sea (which would encompass

virtually all beach access permits) can be appealed to

the Coastal Commission either by an “aggrieved

person” or by two members of the Coastal

Commission. Cal. Pub. Res. Code §§30603(a)(1),

30625(a), 30801.

Martins Beach is located in unincorporated San

Mateo County, which has a Coastal Commission

certified LCP. San Mateo County Zoning Regs §6328

et seq.2 The permitting process under that LCP is

typical of the process found in other LCPs along

California’s 1,100-mile coast.

The first step is to submit an application, which

can take time to prepare. In fairly open ended

fashion, the San Mateo County Planning Director is

allowed to require the application to include any

information the Director determines is necessary for

The January 2018 Edition of the San Mateo Zoning

Regulations

can

be

found

at:

https://planning.smcgov.org/sites/planning.smcgov.org/files/SM

C_Zoning_Regulations.pdf

2

13

evaluation of the proposed “development.”

Mateo County Zoning Regs §6328.7(f).

San

Under California’s Permit Streamlining Act, the

County does not begin to process the application for a

decision until the County determines that the

application is complete. Cal. Gov’t Code §65943 et

seq. When an application is submitted, the County

has 30 days in which to inform the applicant that the

application is incomplete, at which point an

applicant must revise the application to continue the

process. Cal Gov’t Code §65943.

There is no limit on the number of times a city

or county can determine that an application is not

complete.

That determination can require an

applicant to provide additional information that can

take weeks or months to prepare each time. While

the Permit Streamlining Act attempts to limit the

grounds on which an application can be found to be

incomplete (Cal. Gov’t Code §§65940, 65941, 65943),

even if the grounds are questionable, litigating the

issue is frequently not a viable option given the time

and cost involved.

Once an application is determined or deemed to

be complete under the Permit Streamlining Act, the

County would have 180 days to approve or

disapprove the application, which can be extended by

90 days with the applicant’s consent. Cal. Gov’t Code

§§65950(a)(1), 65957.

Like other LCPs, the County LCP requires a

public hearing before either the County Zoning

Administrator or the County Planning Commission3

with respect to any permit that could be appealed to

3

Many smaller jurisdictions have only a planning commission.

14

the Coastal Commission (which would apply to any

permit to close a beach access). San Mateo County

Zoning Regs §6328.9. A Zoning Administrator’s

decision can be appealed to the Planning

Commission, which, in turn, can be appealed to the

County Board of Supervisors. San Mateo County

Zoning Regs §6328.16. In each case, the body

hearing the appeal engages in a de novo review of

the application. San Mateo County Zoning Regs

§6328.12.

However, the Permit Streamlining Act does not

apply to appeals. Cal. Gov’t Code §65922(b). There is

no time limit on when the Planning Commission or

Board of Supervisors must hear the appeal.

If the Board of Supervisors approves the CDP,

that decision can then be appealed to the California

Coastal Commission.

Cal. Pub. Res. Code

§30603(a)(1); San Mateo County Zoning Regs

§6328.16(b). The Commission engages in another de

novo review in which it determines whether the

application complies with the County LCP and the

Coastal Act’s public access policies, which state that

the Commission is required to maximize public

access. Cal. Pub. Res. Code §§30621, 30603(b),

30210.

Under the California Coastal Act, the

Commission is required to hear an appeal, unless the

Commission determines that the appeal does not

raise a “substantial issue.” Cal. Pub. Res. Code

§30625(b)(1). Although the Coastal Act requires the

Commission to act on an appeal within 49 working

days, California courts have held that the 49-day

rule is satisfied when the Commission determines

whether an appeal raises a substantial issue within

that time frame, without deciding the merits of the

15

appeal. Cal. Pub. Res. Code §30621(a); Coronado

Yacht Club v. California Coastal Com., 13

Cal.App.4th 860, 866-873 (1993). In many cases, the

applicant will waive the 49-day rule, so that the

substantial issue determination occurs when the

merits of the appeal are heard.

Once the 49-day rule is addressed, there is no

time limit on when the Commission hears the merits

of the appeal. The Commission has been known to

take a year or more to hear an appeal.

Thus, obtaining a CDP can be a multi-year

odyssey in which an applicant can be required to go

through three or four rounds of public hearings and

decisions before receiving a permit. Along the way,

the applicant can incur substantial costs associated

with that process. In addition to the monetary cost,

there can be an emotional toll on the applicant. The

applicant has to go through successive public

proceedings in which the applicant may be exposed

to the kind of harassment, scorn and derision that

the Martins Beach landowners have had to endure in

this case. All the while, the landowner/applicant is

doing nothing more than attempting to exercise a

fundamental right to exclude others from the owner’s

private property.

Not everyone on California’s 1,100 mile long

coast has the means and the fortitude to brave this

gauntlet. The idea that a physical invasion is not

permanent because the owner may be able to

eventually obtain a CDP presumes, incorrectly, that

everyone in this situation can do so.

Requiring property owners and tenants to go

through a lengthy and expensive permitting process

would mean that the right to exclude others would be

16

available to those who can afford to secure it and

have the wherewithal to go through it.

The difference between “permanent” meaning

“established” or fixed” and “permanent” meaning

“unending” is the difference between whether the

right to exclude others from private property is

afforded to all or is available only to those who can

afford it.

III. Interpreting

“Permanent”

To

Mean

“Unending” Instead Of “Established”

Produces Outcomes That Eviscerate A

Basic Property Right

Neither the County nor the Coastal Commission

can use the permitting process to take private

property. In the first instance, California law limits

the power to compensate an owner for a taking to

judicial proceedings. Under Article 1, Sec. 19 (a) of

the California Constitution, “Private property may

be taken or damaged for a public use and only when

just compensation, ascertained by a jury unless

waived, has first been paid to, or into court for, the

owner.” “The only legal procedure provided by the

California Constitution and statutes for the taking of

private property for a public use is by way of a

condemnation.

City of Needles v. Griswold, 6

Cal.App.4th 1881, 1896 (1992).4

Nor could the County or Coastal Commission

deny an application to terminate public use of the

private property in a case such as this. This Court’s

decision in Nollan v. California Coastal Commission,

4 Furthermore, the Coastal Commission “is not vested with

the authority to adjudicate the existence of prescriptive rights

for public use of privately owned property.” LT-WR, L.L.C. v.

California Coastal Com., 152 Cal.App.4th 770, 806 (2007).

17

instructs that “the outright taking of an

uncompensated, permanent, public-access easement

would violate the Takings Clause.” Nollan, supra, at

825. In any sense of the word “permanent,” an

outright denial that would require the owner to

accept an unending, unwelcomed public recreational

invasion of the property would be a per se taking,

which neither the County nor the Coastal

Commission have the authority to effect in a land

use approval process.

Nollan also instructs that conditioning a CDP

on requiring a permanent easement would be a

lawful land-use regulation only if it substantially

furthered governmental purposes that would justify

denial of the permit. Nollan, supra, at 825. In

Nollan, this Court held that the Coastal Commission

could not impose a condition requiring public access

across a private beach in connection with the

redevelopment of a residential lot because the

Commission could not deny the permit on the

grounds that the access was not provided.

In this case, a CDP to exercise the right to

exclude could not be denied because the denial would

be a per se taking. As a result, under Nollan neither

the County nor the Commission could impose

conditions on the CDP, because there is no

governmental purpose that would justify a denial of

the permit.

There is equally no legitimate governmental

purpose that justifies requiring owners or tenants to

accept an unwelcomed public invasion of their

private property while going through a process to

obtain a permit that neither the County nor the

Commission could deny or condition. This outcome is

avoided if “permanent” means “established” or

18

“fixed,” because a per se taking would occur whether

the governmentally compelled invasion is unending

or terminable.

However, if “permanent” means “unending,” it

opens the door to an entirely different outcome that

could require a private land owner or tenant to

endure an ongoing unwelcomed public invasion of

their private property indefinitely. For example, it is

not difficult to conceive of a circumstance where the

County or the Coastal Commission “approves” a CDP

to discontinue public recreational access and use on

the condition that the owner must continue to allow

the unwelcomed invasion for, say, ten years. The

condition would require that, at the end of ten years,

the owner must prove to the Commission (an agency

committed to maximizing the public use of the

property) that remaining open would constitute a

taking under this Court’s multi-factor ad hoc takings

analysis. The condition would then require that if

the owner fails to make the showing to the

Commission’s satisfaction, the uninvited use would

continue until such time as the owner makes such a

showing to the Commission’s satisfaction.

This is not a farfetched proposition. In many

parts of the California coast, the Coastal Commission

has a policy of approving only the minimum amount

of development necessary to avoid a taking.5 It

Two good examples are in the staff reports the Commission

adopted as its findings in connection with its 2011 denial and

2015 approval of five owners’ applications to build homes on

their respective lots in the Malibu area. The 2011 takings

findings

can

be

found

at

https://documents.coastal.ca.gov/reports/2011/6/Th13c-s-62011.pdf at pages 204 – 238 (corresponding to pages 74 – 109 of

the staff report following the addendum). The 2015 findings

5

19

routinely makes findings in approving and denying

CDPs regarding whether the decision would

constitute a taking, citing this Court’s takings

jurisprudence. It would not be a stretch for the

Commission to devise an approach that would

compel public use of private property for as long as

the Court’s ad hoc takings analysis would allow it.

If the word “permanent” means “established” or

“fixed,” the foregoing condition would be a per se

taking on its face, since it would establish ongoing

and continuous public use of private property from

the get go.

If the word “permanent” means “unending,” the

foregoing “approval” might not be considered a

taking because the permit theoretically allows the

owner to terminate the use at some point, provided

the owner carries the difficult burden of proving a

complicated and murky legal proposition before an

agency with an adverse interest in the outcome,

whose decision is subject to a deferential standard of

judicial review under California law.6

are

found

at

https://documents.coastal.ca.gov/reports/2015/12/th17a-s-122015.pdf at pages 85 - 92

6 Judicial review of any decision or action under the

Coastal Act is reviewable only by writ of mandate. Pub. Res.

Code §30802. The inquiry is whether the Commission (or city

or county) prejudicially abused its discretion, which occurs

when the decision is arbitrary, capricious, in excess of the

agency’s jurisdiction, entirely lacking in evidentiary support, or

without reasonable or rational basis as a matter of law. Cal.

Code Civ. Proc. §1094.5(b). A prejudicial abuse of discretion is

established if the Commission (or city or county) has not

proceeded in a manner required by law, if its decision is not

supported by findings, or if its findings are not supported by

substantial evidence in the record.

Cal Code Civ. Proc.

20

Since no one can say what the County or

Commission would do in the future (and it is

theoretically possible the agency could allow the

owner to discontinue the use at some point), one

could argue that the invasion is not “permanent” in

the sense of unending. Although the compelled use

could theoretically end at some point, it would never

end in practice if the owner cannot prove to the

government’s satisfaction that continuing the

invasion would be a taking under the Court’s ad hoc

multi-factor test.

Of course, the owner could choose to litigate the

question of whether the Commission had substantial

evidence in its record (in a proceeding where the

rules of evidence do not apply)7 to support its refusal

to allow the uninvited use to end under this Court’s

murky ad hoc takings analysis. That litigation likely

would have to occur before the question of

compensation for a taking could be litigated. All of

this would make the process, which is already more

than many can bear, even more unattainable. All

the while, the owner is compelled to endure an

ongoing, unwelcomed public recreational invasion of

his or her private property.

Again, all of this turns on the meaning of this

Court’s use of the word “permanent” in describing a

§1094.5(c). “The decisions of the agency are given substantial

deference and are presumed correct. The parties seeking

mandamus bear the burden of proving otherwise, and the

reviewing court must resolve reasonable doubts in favor of the

administrative findings and determination.” Sierra Club v.

County of Napa, 121 Cal.App.4th 1490, 1497 (2004)

7 The Coastal Commission’s regulations state that a Coastal

Commission “hearing need not be conducted according to

technical rules relating to evidence and witnesses.” Cal. Code

of Reg., Tit. 14, § 13065.

21

per se physical occupation taking in its

jurisprudence. It has reached the point in this case

where an interpretation of “permanent” is affecting,

in significant and fundamental ways, our ability to

exercise our basic right to exclude others from our

private property.

CONCLUSION

For all of the foregoing reasons, as well as for

the reasons stated by the petitioners, the Court

should grant the Petition for Writ of Certiorari in

this case.

Respectfully submitted.

KENNETH B. BLEY

Counsel of Record

STANLEY W. LAMPORT

COX, CASTLE & NICHOLSON, LLP

2029 Century Park East, Suite 2100

Los Angeles, CA 90067

(310) 284-2200

kbley@coxcastle.com

slamport@coxcastle.com

Counsel for Amicus Curiae CALIFORNIA

BUSINESS PROPERTY ASSOCIATION

MARCH 28, 2018