A Laguna Beach couple is appealing a court order to remove a seawall from its beachfront property and pay a $1 million fine.
The latest ruling, in which a panel of three judges in an appellate court unanimously upheld an earlier order by the California Coastal Commission that required the couple to take down the seawall and pay the fine, was issued Dec. 4.
But the couple on Dec. 21 filed a 58-page petition to the same Fourth Appellate District Court that ruled against them—and a decision on whether to rehear the case is expected by Jan. 4, 2021.
The petition furthers the couple’s claim that the home remodel was permitted “repair and maintenance,” as opposed to new development.
“This court’s Dec. 4 opinion contains a fundamental misconception that undermines the entirety of the court’s analysis: that ‘new development’ and ‘major remodel’ are two different things,” the petition, obtained by The Epoch Times, states.
“The Katzes followed to the letter the standards the commission had established for determining whether their project was a ‘major remodel,’ and had that project approved by the city—the entity the legislature assigned the task of coastal permitting—at every turn.”
The California Coastal Commission determined in 2018 that homeowners Jeffrey and Tracy Katz violated their permit for the seawall, used as a coastal defense against the ocean, after remodeling their residence. The commission does not usually allow seawalls because they are not environmentally friendly, reducing the exchange of sediment between ocean and land.
Despite the commission opposing seawalls for newer properties, homes built before the 1976 Coastal Act are normally grandfathered and exempt from the rule. The Katz’s Lagunita Drive home was built in 1952, which is why the couple was allowed to erect the seawall in 2005. But as a condition of having the seawall, the commission would not allow the home to undergo new development.
The Katz family remodeled its home without a permit from the commission, but did have the necessary permits from the City of Laguna Beach, which determined that the construction was not a “major remodel” and did not require a permit for the seawall. However, the commission said the work did constitute new development, ordered the wall to be removed, and issued the $1 million fine to the couple.
After this order, the Katz challenged the commission in court, where a Superior Court judge upheld the commission’s order in 2019, but removed the high-priced fine. The Dec. 4 ruling restored the $1 million fine.
The Dec. 21 petition states the commission and the city have consistently used the same test—whether 50 percent or more of major structural elements have been changed—to evaluate whether a remodel project is a new development or repair and maintenance.
The commission then changed the rules, according to the petition, and argued to the court that the 50 percent remodel standard did not apply.
“The court accepted that argument at face value, without analyzing either the underlying record—which makes crystal clear that work that did not qualify as a major remodel would not trigger the permit conditions—or the years of on-point Commission precedent applying the city’s LCP [local coastal programs], including decisions issued only months earlier,” the petition states.
“The court’s decision effectively holds, then, that when the commission prosecutes a property owner in an enforcement proceeding, it is free to disregard its own permit findings and its own administrative precedents.”
The same three judges who ruled earlier this month will re-examine the case based on the petition’s arguments and issue its judgment in January.