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California Court of Appeal Affirms Coastal Commission’s Coastal Bluff Setback Requirement Considering Factors of Safety and Life of the Project

California Court of Appeal Affirms Coastal Commission’s Coastal Bluff Setback Requirement Considering Factors of Safety and Life of the Project
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By Boyd Hill

The Fourth District Court of Appeal for California in Gary Martin v. California Coastal Commission reaffirmed its determination in Lindstrom v. California Coastal Commission, 40 Cal.App.5th 73 (2019) (Lindstrom), holding that the City of Encinitas’ Local Coastal Program (LCP) and Municipal Code require a development setback from coastal bluffs that takes into account the required factor of safety for the entire life of the project. [Martin v. California Coastal Commission, ___Cal.App.5th___, Case No. D076956 (4th Dist. 2021).]

Factual and Procedural Background

The Martins own a blufftop vacant lot in Encinitas. They applied to the City of Encinitas (City) for a Coastal Development Permit (CDP) to build a two-story, 3,110 square-foot house with an additional 969 square-foot basement and 644 square-foot garage.

The proposed design set the first story of the home back 40 feet from the 93-foot-high bluff edge and set back the second story cantilevered deck 32 feet. The Martins submitted geotechnical reports certifying the home satisfied the requirements of the LCP contained in the City’s Municipal Code § 30.34.020.

The City’s third-party geotechnical consultant reviewed those reports and agreed with the analysis. On April 21, 2016, the city planning commission adopted a resolution approving the CDP for their home.

On May 25, 2016, two planning commissioners appealed the City’s approval to the Coastal Commission. At the Commission’s August 8, 2018 hearing on the appeal, Commission staff presented a report recommending approval of the home but with additional conditions that the home be set back 79 feet from the bluff’s edge and barring the design from including a basement. The Commission adopted the staff’s recommendation with the conditions.

The Commission found that the City’s approval was inadequate because it failed to account for the LCP’s requirement that new development be set back far enough to provide for a safety factor of 1.5 at the end of the 75-year life of the project. The safety factor is a calculation that addresses bluff stability, i.e., the risk of landslides or bluff failure, while the time period of 75 years addresses bluff erosion over time during the project’s existence.

In determining the 79-foot setback, the Commission relied on the analyses of its staff geologist and its staff engineer, after considering the geotechnical reports provided by the Martins, which certified that the home would be safe from coastal bluff retreat over its 75-year design life without the need for shoreline protection.

The Commission’s staff arrived at 79 feet by adding the setback required to achieve a 1.5 factor of safety (40 feet) and the anticipated erosion over 75 years (39 feet). The 40 feet 1.5 factor of safety was not in dispute. However, the Commission staff disagreed with the Martin’s engineer’s estimate of a long-term future rate of erosion of 0.27 feet per year, calculating the future erosion rate to be 0.52 feet per year (39 feet over 75 years). Commission staff determined this rate using the SCAPE method, a scientifically supported methodology that incorporates site-specific information and sea level rise estimates.

Commission staff also noted this rate was generally consistent with the 0.49 feet per year erosion rate used by the Commission for the prior five new blufftop home approvals in Encinitas.

As for the proposed basement, the Commission staff found that the Encinitas bluffs are hazardous and unpredictable, and bluff retreat may eventually cause the basement to be exposed, even with a 79-foot setback. The Commission staff also found that removing or relocating the basement, if feasible, would significantly alter the bluff and could threaten its stability.

The Martins submitted a plan for removing the basement, along with their engineer’s certification of the plan. The Commission, however, found the removal plan was insufficient because it failed to provide any detail related to geologic stability risks of removing a basement on an eroding blufftop site, did not detail how removal of the basement would impact stability of neighboring structures, and did not detail how the basement void could be filled upon removal. Thus, the Commission concluded the proposed basement was inconsistent with the LCP’s requirement that all blufftop structures be removable.

The Martins filed a petition for writ of administrative mandate and complaint for declaratory and injunctive relief challenging special conditions 1(a) (the 79-foot setback), 1(c) (the basement prohibition).

In addition to seeking a writ of mandate reversing the Commission’s conditional approval, the Martins also sought a declaration that the Commission’s bluff-edge setback methodology is unlawful and an injunction to preclude the Commission’s future use of the methodology.

The trial court’s judgment found that special condition 1(a) was inconsistent with the LCP and that the Commission’s imposition of the condition was an abuse of discretion. The trial court rejected the Martins’ challenge to special condition 1(c). Both parties appealed.

The Court of Appeal’s Decision

The Court of Appeal applied the substantial evidence standard of review and reversed the trial court’s determination that the Commission’s 79-foot setback condition was an abuse of discretion.

The Lindstrom Case

In Lindstrom v. California Coastal Commission, 40 Cal.App.5th 73 (2019), the Court of Appeal noted that, while the Commission’s jurisdiction on appeal is limited to the standards set forth in the LCP, the Commission’s jurisdiction on appeal includes imposing reasonable conditions on the CDP that embody state policy. In Lindstrom, the Court of Appeal explicitly resolved the same setback question as in this case in favor of the Commission’s additive interpretation of the LCP setback requirement. In both Lindstrom and this case, the Court of Appeal held that Encinitas Municipal Code § 30.34.020D explicitly requires a structure to be reasonably safe from failure and erosion over its lifetime, which means that the geotechnical report must demonstrate a safety factor of 1.5 at the end of 75 years.

No Error in Commission Setback Interpretation

The Martins argued that the Commission additive interpretation of the LCP contravenes the City’s prior interpretation of the LCP. The Court of Appeal held that Municipal Code § 30.34.020D expressly requires that the geotechnical report must demonstrate the factor of safety for the entire 75 years and requires analysis of future structural support. The plain meaning of those provisions dictates the Commission’s additive approach. The fact that various lesser setbacks have been accepted by the Commission since the adoption of the LCP in 1995 does not lead to the conclusion that the Commission’s interpretation of § 30.34.020D is incorrect.

No Error in Commission Requirement for Removable Structures

The Martins argued that the condition prohibiting a basement should not have been imposed beyond the setback. Policy 1.6 of the LCP lists specific actions that the City must undertake to prevent unnatural coastal bluff erosion, including setbacks and removable construction. Because the paragraph concerning removable construction follows the paragraph concerning setbacks, Martin contended that removable construction was not required beyond the setback. The Court of Appeal disagreed, reading the paragraph regarding removable structures as standing alone.

Substantial evidence supported the Commission’s determination that the basement would not qualify as a movable structure. There was evidence that the bluff is highly susceptible to landslides and actively eroding. There was evidence that the basement would be placed into terrace materials consisting of consolidated sand.

Conclusion and Implications

This opinion by the Fourth District Court of Appeal reaffirms the prior decision in Lindstrom that coastal bluff setbacks under the Coastal Act as ultimately determined by Coastal Commission standards must take into account both current and future factor of safety, depending on the life of the project, as determined by the LCP or otherwise. There may be room to negotiate for a shorter project lifetime, but the Encinitas LCP had a fixed 75-year time period. The Court of Appeal’s opinion is available online at: