July 2012 Archives

Bay Island Club v. California Coastal Commission; Newport Beach Property Owner Succeeds in Invalidating Coastal Commission Permit Condition in Litigation Implicating Regulatory Takings Theories

July 29, 2012

By Matthew Hinks

The California Coastal Commission may not unilaterally impose a right of public access over private property. So says the California Court of Appeal in Bay Island Club v. California Coastal Commission.

Bay Island Club (the "Club") is comprised of 24 shareholders and owners of single-family residences on Bay Island, a private island located in Newport Bay in the City of Newport Beach. It has held title to the island since the early 1900s. Balboa Peninsula lies adjacent to the island and was conveyed to the East Newport Town Company ("East Newport") by the State of California in 1904. In 1927, East Newport granted to the Club an easement "to construct, maintain, repair and replace a bridge for pedestrian and/or automobile travel". Subsequently, East Newport deeded fee title, subject to the Club's easement, to certain real property, including the channel under the easement to the City.

The bridge built over the easement that existed at the time of the decision was constructed in 1958. In 2006, the Club applied to the California Coastal Commission for a permit to replace it with a 10-foot wide and 130-foot long bridge. Sometime prior to filing the application, the Club had erected a gate on the mainland side of the bridge preventing use of the bridge by the public. There was conflicting evidence in the record over when the gate was built, including evidence from members of the public that the gate was constructed after 1976, which, if true, meant that the gate was constructed in violation of the Coastal Act (passed in 1976), because it was built without a Coastal permit.

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Developers' Rights and Due Process; Illegal Moratoria Do Not Give Rise to Section 1983 Civil Rights Claims

July 12, 2012

By Matthew Hinks

Consider these facts: A married couple owns waterfront property in a picturesque harbor. They devoutly wish to build a pier or a dock on their property; however, the city refuses to even accept an application for a permit. This is because the city had previously passed and repeatedly extended an illegal moratorium preventing construction of new docks and piers in the area in which the couple's property is located. The initial moratorium was passed on an emergency basis without a prior public hearing and without findings documenting the emergency or justifying expedited treatment. A state trial court declared that the rolling moratorium violated the state constitution. After the state appellate court granted a stay of the trial court's decision, the city announced that it would continue to refuse permit applications for over-water structures during the pendency of the appeal and continued extending the moratorium until the city adopted a new comprehensive shoreline use plan that permanently banned new over-water construction and forever prevented the couple from building their dock.

Despite the earlier stay, the state court of appeal unanimously affirmed the trial court's ruling. The state Supreme Court also affirmed holding that, not only is "[t]here is no authority in [applicable state law], express or inherent, [that] justifies the [c]ity's attempt to impose unilateral moratoria", state law affirmatively prohibits city-adopted moratorium in these circumstances. The state Supreme Court determined that the city's actions amounted to a "clear violation of [the] property owners' rights" and "resulted in a physical degradation of these private owners' property". Further, the city's resort to the illegal moratoria was especially suspect being that, "the [c]ity had years to make any required plan changes but did not do so."

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