By David C. Smith
It is your California dream home—beach-front access and 180-degree ocean views. However, due to being included in a “hazards” overlay zone, you are unable to secure homeowners’ insurance at any reasonable cost and no title company will extend full coverage title insurance. And the “hazard” at issue is universally recognized to be decades away, and some question if it will ever materialize. Nonetheless, enactments of local elected officials and regulators are tanking the value and insurability of your single greatest asset. And when you propose to build structures that engineers certify will protect your home decades into the future, regulators refuse to allow it.
This hypothetical scenario is proving not quite so “hypothetical” as “managed retreat” becomes an increasing focus of attention for both the public at large and regulatory officials. Climate change modeling and hazard projections increasingly fuel debates over appropriate mitigation and adaptation measures to combat the future threat of rising seas.And the threat is not just for the wealthy in exclusive enclaves like Malibu or distant third-world countries. The threat may be most dire for the already vulnerable among us, such as disadvantaged communities living in mobile home units in the very shadow of Silicon Valley tech giants. Advocates fear redlining practices from banks and others due to projected vulnerabilities will destine such communities to the fate of New Orleans’ Ninth Ward in the wake of Hurricane Katrina.
Background
So, what is “managed retreat”? A reporter for National Public Radio (NPR) covered a conference on managed retreat in New York in June 2019. He described it this way:
“So it’s a technical term, a political term. And it is essentially like a formal acknowledgement that there are places in the U.S. and around the world—not just the East Coast, I should say – that are going to be, if they aren’t already, at such huge levels of risk from climate change that it just won’t make sense for those places to remain.”
And that can be, you know, communities at risk of increased wildfire heat. But primarily, what we’re talking about at this conference—it’s focused on the impacts on coastal zones—cities by the sea, oceanside towns that are going to be inundated or see more flooding as sea levels rise.
It just won’t make sense for those places to remain.
What does that mean? And who gets to decide that an existing home or community should no longer “remain”? And what are the consequences for those potentially displaced? All of these critical considerations remain open and unresolved as the promotion of, opposition to, and debate over managed retreat escalates.
Managed Retreat Is Not a New Concept
Managed retreat is not a new concept. In 2011, the Bay Conservation and Development Commission (BCDC), the San Francisco Bay equivalent of and state predecessor to the California Coastal Commission, adopted climate-change-related amendments to its governing document, the Bay Plan. The approval came only after months of highly contentious debate, including whether low‑lying areas, communities, infrastructure, and even tech campus were potentially subject to abandonment to rising seas. For many, this was their first exposure to the term “managed retreat” and the potential for government-sanctioned abandonment of private property as an actual regulatory concept.
In March 2017, the scientific journal Nature Climate Change (NCC) published an analysis and proposed model evaluating approaches to and consequences of managed retreat. It noted that the United Nation’s International Panel on Climate Change (IPCC) included managed retreat “as an alternative to coastal protection” in its First Assessment Report in 1990. According to the NCC piece:
“Retreat’ is used to capture the philosophy of moving away from the coast rather than fortifying it in place. ‘Managed retreat,’ on the other hand, derives from coastal engineering and has been defined as ‘the application of coastal zone management and mitigation tools designed to move existing and planned development out of the path of eroding coastlines and coastal hazards. . . .’ We identify two defining features of managed retreat in coastal and other settings.First, it is a deliberate intervention intended to manage natural hazard risk, requiring an implementing or enabling party. Second, it involves the abandonment of land or relocation of assets. We use those characteristics to define managed retreat as the strategic relocation of structures or abandonment of land to manage natural hazard risk.”
As managed retreat becomes more broadly recognized and understood, as well as advocated for inclusion in broad regulatory policies addressing the future of California’s precious coastline, the owners of potentially vulnerable properties are beginning to realize that others, not themselves, have already begun debating “strategic relocation of structures or abandonment” of that individual’s privately owned property (including, frequently, their home) “to manage natural hazard risk.” And many of them are not at all happy about it.
Del Mar, California Rejects Managed Retreat
At the present time in California, there is no greater battleground debate over managed retreat than in San Diego County’s smallest city, Del Mar, and its ongoing conflict with the Coastal Commission. At issue is the Coastal Commission’s refusal to certify Del Mar’s Local Coastal Program (LCP) for the City’s own regulation of development and other activities in the Coastal Zone. Under the California Coastal Act (Pub. Resources Code §. 30000 et seq.), the Coastal Commission has ultimate authority over regulation of the Coastal Zone. However, cities within the Coastal Zone may adopt programs for local implementation of the Coastal Act’s requirements through an LCP, though the LCP must be periodically certified by the Coastal Commission itself. Specified approvals by a city pursuant to an LCP may be appealed up to the Coastal Commission itself.
According to the San Diego Union Tribune, the consistent approach of the Coastal Commission in reviewing LCP certifications throughout the state includes:
“. . .[a] slow and calculated retreat . . . . The strategy includes warning property owners and prospective buyers of the possibility they could be flooded, prohibiting new or additional development in threatened areas and in some cases providing financial assistance to people who need to relocate out of harm’s way.”
Del Mar has long opposed the concept of managed retreat. With beach-front properties regularly valued at over $10 million each, Del Mar has argued that codifying managed retreat today could have a devastating impact on property values and insurability of these properties. Further, the City points out that residential neighborhoods behind the beach-front properties are even more low-lying than the beach properties themselves, so allowing the front line of homes along the beach to be abandoned ensures loss of the next neighborhoods as well. Instead, the City has adopted a long-term adaptation strategy whereby regular replenishment of sand on the beach and seawalls are the primary defense mechanisms against rising seas.
Del Mar is in the midst of seeking certification of its LCP and has resisted what it characterizes as the Coastal Commission’s insistence that the LCP include managed retreat as a mitigation measure for future Coastal Development Permits (CDP) issued under the LCP. And the dispute has been pending for nearly four and a half years.
Most recently, as outlined in a Staff Report dated September 27, 2019, the Coastal Commission staff recommended denial of certification of Del Mar’s proposed LCP unless the City agreed to 25 proposed changes. These included provisions relating to bluff setbacks, waiver of any future right to build structure protections against sea level rise, and addressing potential implications of regulations posing the risk of liability for an unconstitutional “taking” of property.Coastal Commission staff stated that it viewed the proposed amendments as standard for LCPs in an era addressing future sea level rise; fully consistent with the City’s proposed adaptation plan that accompanied, though does not have the regulatory authority of, the LCP itself; and never expressly required managed retreat.
At its City Council meeting on October 7, 2019, Del Mar unanimously rejected in summary fashion all proposed 25 amendments by the Coastal Commission. The City stated that the proposed amendments were the Coastal Commission’s attempt to “back door” managed retreat into the LCP.
The Coastal Commission hearing on the LCP and staff’s recommendation regarding the 25 proposed amendments was just over a week later on October 16, 2019. While staff expressed great surprise and frustration with the City’s summary dismissal of the proposed amendments after four years of discussion and negotiation, Coastal Commission staff ultimately agreed to postpone the hearing so that additional negotiation could take place.
The Lindstroms, Encinitas, California, and the Coastal Commission
Unfortunately for Del Mar, Coastal Commission staff was likely bolstered in their confidence in the negotiations in light of a sweeping victory they received from the California Court of Appeal’s Fourth District Court on September 19, 2019, just over a week before Coastal Commission staff issued their staff report recommending denial of Del Mar’s proposed LCP without the 25 amendments. In Lindstrom v. Coastal Commission, 40 Cal.App.5th 73 (Sept. 19, 2019), four conditions imposed by the Coastal Commission on an individual CDP for a single-family residence on an ocean-front bluff in the City of Encinitas were nearly universally upheld. And these four permit conditions strikingly mirror the types of policies the Coastal Commission is looking to integrate into LCPs statewide in order to confront sea level rise.
The Lindstrom’s saga is a testament not only to the substantive requirements individual permit applicants and jurisdictions seeking LCP certification should expect, but the complex, time-consuming, and expensive process entailed in challenging such requirements. The Lindstrom’s first applied for their CDP in 2012, and the court of appeal ruling was not issued until seven years later.
Background
The Lindstroms owned a 6,776 square foot lot on bluffs 70 feet above the ocean in the city of Encinitas, California. In 2012, they applied to Encinitas for entitlements, including a CDP under Encinitas’ LCP, to construct a two-story 3,553 square foot home. “The seaward side of the structure would be set back 40 feet from the edge of the bluff.”
One of the common requirements for CDP applications, whether under a certified LCP or from the Coastal Commission itself, is for thorough geotechnical analysis demonstrating that the approved structure will remain secure from erosion or other hazards for at least, typically, 75 years and that the new structure will not require additional structural protection such as a sea wall in the future. Encinitas’ code was no exception:
The City’s LCP requires that permit applications for development in the Coastal Bluff Overlay Zone, where the Lot is located, be accompanied by a geotechnical report prepared by “a certified engineering geologist.” (Encinitas Mun. Code, Ch. 30.34, § 30.34.020D.)
“. . .not endanger life or property, and that any proposed structure or facility is expected to be reasonably safe from failure and erosion over its lifetime without having to propose any shore or bluff stabilization to protect the structure in the future.”(Encinitas Mun. Code, § 30.34.020D.)
The City’s LCP lists certain aspects of bluff stability that the geotechnical report shall consider.[] It further states that:
“. . .[t]he report shall also express a professional opinion as to whether the project can be designed or located so that it will neither be subject to nor contribute to significant geologic instability throughout the life span of the project.” (Encinitas Mun. Code, § 30.34.020D.11, 1st par.)
The geotechnical analysis under this requirement became a major point of contention between the Lindstroms and the Coastal Commission as to a condition relating to the required setback of the new structure from the bluff’s ocean-ward edge.
Encinitas, through its Planning Commission, certified the project as consistent with its LCP and approved the new residence.
“As one of the conditions for the permit, the City required the Lindstroms to provide a letter stating that ‘the building as designed could be removed in the event of endangerment, and the property owner agreed to participate in any comprehensive plan adopted by the City to address coastal bluff recessions and shoreline erosion problems in the City.’”
The Court of Appeal further explained:
“This condition was required pursuant to the portion of the City’s LCP concerning the Coastal Bluff Overlay Zone, which states, ‘Any new construction shall be specifically designed and constructed such that it could be removed in the event of endangerment and the property owner shall agree to participate in any comprehensive plan adopted by the City to address coastal bluff recession and shoreline erosion problems in the City.” (Encinitas Mun. Code, § 30.34.020B.1.a.)
Two sitting members of the Coastal Commission appealed Encinitas’ approval of the Lindstrom’s new home. (The Coastal Act makes express provision for two Coastal Commission members to appeal decisions under local LCPs to the full Coastal Commission for review.)
“As relevant here, one ground of the commissioners’ appeals was that the City’s approval ‘appears inconsistent with the policies of the LCP relating to the requirement that new development be sited in a safe location that will not require shoreline protection in the future.’”
The appeal came before the Coastal Commission on July 13, 2016. The Coastal Commission approved the construction of the Lindstrom’s home, but added four additional conditions to Encinitas’ approval, “including that the structure be set back 60 to 62 feet from the edge of the bluff,” as opposed to the 40 feet required by Encinitas. The four exact conditions required by the Coastal Commission were:
“•A setback from the bluff 20 feet further than that required by Encinitas:
[1.a] The foundation of the proposed home and the proposed basement and shoring beams shall be located no less than 60 to 62 ft. feet [sic] landward of the existing upper bluff edge on the northern and southern portions of the site, respectively.
•Waiver of any right to construct protective structures in the future:
[3.a] By acceptance of this Permit, the applicants agree, on behalf of themselves and all successors and assigns, that no bluff or shoreline protective device(s) shall ever be constructed to protect the development approved pursuant to Coastal Development Permit No. A-6-ENC-13-0210 including, but not limited to, the residence and foundation in the event that the development is threatened with damage or destruction from waves, erosion, storm conditions, bluff retreat, landslides, or other natural hazards in the future. By acceptance of this Permit, the applicants hereby waive, on behalf of themselves and all successors and assigns, any rights to construct such devices that may exist under Public Resources Code § 30235.
•Confirmation they will remove the residence and foundation if ordered to do so:
[3.b] By acceptance of this Permit, the applicants further agree, on behalf of themselves and all successors and assigns, that the landowner shall remove the development authorized by this Permit, including the residence and foundation, if any government agency has ordered that the structures are not to be occupied due to any of the hazards identified above. In the event that portions of the development fall to the beach before they are removed, the landowner shall remove all recoverable debris associated with the development from the beach and ocean and lawfully dispose of the material in an approved disposal site. Such removal shall require a coastal development permit.
•Obtain and comply with a new geotechnical study under specified conditions:
[3.c] In the event the edge of the bluff recedes to within 10 feet of the principal residence but no government agency has ordered that the structures not be occupied, a geotechnical investigation shall be prepared by a licensed coastal engineer and geologist retained by the applicants, that addresses whether any portions of the residence are threatened by wave, erosion, storm conditions, or other natural hazards. The report shall identify all those immediate or potential future measures that could stabilize the principal residence without shore or bluff protection, including but not limited to removal or relocation of portions of the residence. The report shall be submitted to the Executive Director and the appropriate local government official. If the geotechnical report concludes that the residence or any portion of the residence is unsafe for occupancy, the permittee shall, within 90 days of submitting the report, apply for a coastal development permit amendment to remedy the hazard, which shall include removal of the threatened portion of the structure.”
There are at least two immediately noteworthy aspects of the additional conditions imposed by the Coastal Commission. First, as to the length of the setback from the bluff, a veritable battle-of-the-experts broke out before the Coastal Commission. Over the course of processing the entitlements, the Lindstroms retained two different geotechnical firms that had different methodologies but both placed the setback at less than the City’s codified mandatory minimum of 40 feet. When the question came before the Coastal Commission, the staff geologist—not an engineer—took the two methodologies and, rather than embracing the merits of one over the other, he added the two distances together for a single sum distance. There was expert testimony that this approach was baseless and nonsensical. The two methodologies were distinct approaches to coming up with a single distance, not a single compound analysis. There was no professional justification for adding one on top of the other for, effectively, a double distance. But that is exactly how the Coastal Commission got to 60 to 62 feet of setback.
The other notable attribute is the Coastal Commission’s reference to and forced waiver of Public Resources Code Section 30235 in condition 3.a. That statute provides an express right in the Coastal Act to defend imperiled properties with structural protections. However, it is now the position of the Coastal Commission that the section’s protections apply, if at all, only to existing structures and that proposed new structures may be conditioned on waiver of that statutory right. The Lindstroms argued both that this violated the Coastal Act and that it was an unconstitutional taking of property without compensation.
At the Trial Court
The Lindstroms filed suit challenging all four conditions.
The trial court ruled that the Coastal Commission abused its discretion as to conditions 1.a (60- to 62‑foot setback) and 3.a (waiver of any future right to build structural protection) as contrary to the language of Encinitas’ LCP and the Coastal Act. The trial court upheld conditions 3.b (removal of residence upon order of a government agency) and 3.c (obtain and adhere to a new geotechnical report).
Both the Lindstroms and the Coastal Commission appealed their respective losses.
The Court of Appeal’s Decision
As to condition 1.a—quite incredibly, frankly, given the record—the Fourth District Court of Appeal found the Coastal Commission’s methodology of requiring both distances summed together to a total of 60 to 62 feet as reasonable.
As to condition 3.a, the court held that the Coastal Commission has full authority to require waiver of future structure protections to new construction.
As to condition 3.b, the court disallowed it, but only on a minor and easily fixable drafting error to clarify that the only hazards that could implicate vacating and removing the structures had to be hazards within the purview of Coastal Commission authority.
And finally, as to condition 3.c, the court held that the Coastal Commission with within its authority to require preparation of and adherence to a new geotechnical study upon specified future circumstances.
The most important point as to this sweeping victory for the Coastal Commission, of which the court may or may not have been aware, was that the precedential implications of this ruling go far beyond the conditions to this or any other future permit. Indeed, the four substantive provisions at the heart of the respective conditions actually track some of they foundational strategies the Coastal Commission is seeking to integrate system wide through the LCP programs. Namely, those four strategies are:
1) Mandatory minimum setbacks;Waiver of any right to future structural shoreline protections; and 2) Future removal and disposal of the structures and foundations under specified circumstances; andAutomatic mandates under specified circumstances for the preparation of technical studiesthat could themselves require removal of structures.
Conclusion and Implications
Harkening back to NPR’s coverage of the managed retreat conference in New York in 2019, the reporter was asked if there was any semblance of good news emerging from the apparent chaos surrounding the politics of managed retreat. As with many dynamics in the world today, one thing seemed clear—things are changing:
“I mean, there’s a lot of excitement that the conversation is happening. I’ve heard more than one person say that it’s about time we start tackling this. But I also wanted to steal a quote that one of the presenters stole from Oliver Smith, a Marine Corps general who served in World War II and the Korean War, where, in a battle, he said—he famously said, you know, we’re not retreating; we’re just advancing in a different direction.
And, look; climate change is going to make us have to change direction. And there’s a lot of hope at this conference that as we rebuild communities, as we rethink them, there’s an opportunity to do that in a way that doesn’t have some of the inequalities and segregation that our current systems have.” (Emphasis added.)
I don’t think the residents of Del Mar would agree.
David C. Smith is a partner with Manatt, Phelps & Phillips practicing out of the firm’s San Francisco and Orange County offices. Mr. Smith’s practice includes entitlement and regulatory compliance at all jurisdictional levels from local agencies to the federal government. His expertise includes climate change and greenhouse gas emissions, state planning and zoning laws, the California Environmental Quality Act, the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act, the Clean Air Act, and other regulatory regimes throughout California and the nation. David is a frequent contributor to the California Land Use Law & Policy Reporter and Climate Law & Policy Reporter.
