A Laguna Beach couple’s lawsuit to preserve the seawall protecting their extensively remodeled, $25 million beachfront rental has again been rejected in court.
The couple violated the Coastal Commission’s 2005 permit for the seawall, which said the armoring could be used to protect only the home built in 1952 and required removal if “new development” occurred, according to the ruling by the Fourth District Court of Appeal issued late Friday, Dec. 4.
The remodeling, which the owners said nearly doubled the home’s value, was deemed new development.
The three-judge panel unanimously upheld a Superior Court ruling that the commission was within its authority in ordering the seawall removed. The court also reinstated the commission’s $1 million fine against the property owners, Jeffrey and Tracy Katz, which had been thrown out by the Superior Court in its 2019 ruling.
It’s the first time the commission has had to order removal of a seawall over the opposition of the property owner, said Lisa Haage, the commission’s chief of enforcement. It also could be a sign of things to come.
With rising seas increasingly threatening homes and other coastal structures — and with the commission’s embrace of strategy to pull development back from a higher, possibly more volatile ocean — the ruling sends a signal to other coastal property owners.
“The commission wants to work with property owners on solutions,” commission attorney Alex Helperin said. “This ruling sends a couple messages, including that people can’t play games behind our backs to avoid working with us. If you’re going to play games, you’re just going to make more trouble for yourself.”
In pursuit of its mission to protect beaches and the public’s access to them, the commission has struggled to preserve beaches from the effects of manmade structures — particularly when it comes to the effects of new construction. Seawalls and similar armoring reduce the amount of beach sand by curtailing natural erosion, increasing wave agitation on the beach and blocking rising seas from migrating inland.
“A seawall kills the beach. And only in the last few years has the general public started to realize that,” Haage said. “This (ruling) is the commission really digging in to protect public beaches.”
Steven Kaufmann, attorney for the Katzes, maintained that his clients played by the book and said a decision had not yet been made whether to appeal Friday’s ruling to the state Supreme Court.
“We certainly disagree with the court’s decision, and we’re currently weighing all options,” Kaufmann siad. “It’s a troubling case for anyone in the coastal zone who faces commission enforcement proceedings believing that on the record and in complete good faith, they’ve fully complied with all guiding Coastal Commission decisions, the city’s local coastal program, and the City’s review of the remodel project.”
Helperin anticipated the seawall will be removed by the spring. The commission order also calls on the Katzes to either apply for a permit for the remodeling or — more likely in practical terms — apply for a permit to modify the house, which could include putting it on stilts or moving its location on the lot.
“I think it’s very unlikely the state Supreme Court would be interested in a case like this,” Helperin said.
The Katz property at 11 Lagunita Drive sits on a small bluff above Victoria Beach, the birthplace of modern skimboarding, in Laguna Beach. It coexisted with the ocean without incident until 2005, when high seas, a low beach and stormy weather threatened the home and previous owners built a seawall without a permit. The wall was granted a retroactive permit from the commission with the condition that it be torn down if there was “new development” on the lot.
In 2015, the owners at the time received a permit to fortify the seawall but were told by commission staff that their request for a remodel was too extensive to win approval. The Katzes, who lived next door, then bought the property as an investment, fortified the seawall and embarked on the remodeling project without notifying the commission.
When the Katzes received city construction permits, they were told by the city they didn’t need a commission permit. In court documents filed by the city in defense of the Katzes, the city said the project did not constitute a “major remodel” and so was not in violation of the seawall permit. The Katzes noted that the remodeling retained the same 4,900-square-foot footprint as the original home, although it increased the value from $14 million to $25 million.
Construction was well underway before a neighbor alerted commission staff of the remodeling, which was completed before the issue came before the commission in 2018. Kaufmann argued unsuccessfully before the commission that the remodeling was simply “repair and maintenance.”
Writing for the appellate court, Associate Justice Eileen Moore said the city’s definition of “major remodel” was not the determining threshold, but rather it was the commission’s definition of “new development.” She quoted commission enforcement supervisor Pat Veesart in support of the court’s decision that the construction was indeed new development.
“Interior walls are removed, plumbing, wiring, railings, stairs, et cetera, were also all removed,” Veesart said in quotes excerpted by Moore. Veesart went on to describe photos, taken by a neighbor during construction, showing new joists added to strengthen floors and ceilings as well as other framing reinforcements and a new roof. One photo shows virtually nothing left standing aside from the original framing.
“In other words,” Moore wrote, “the evidence supports a finding that the residence was ‘redeveloped in a manner that constitutes new development’ by any reasonable definition or understanding of those terms.”
Moore also quoted an unnamed activist who testified before the commission on the issue.
“If the California Coastal Commission does not act in accordance the law and the letter of the permit, other homeowners and developers on the coast will see this example and act in the same manner, potentially rendering permit requirements useless in the futures,” the activist is quoted as saying.
As for re-imposing the $1 million fine, Moore said the Superior Court exceeded its authority in waiving the fine.
Source: Orange County Register