Filed 9/9/14 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

BARBARA LYNCH et al., Plaintiffs and Respondents,

v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant. D064120

(Super. Ct. No. 37-2011-00058666- CU-WM-NC)

APPEAL from a judgment of the Superi or Court of San Diego County, Earl H. Maas III, Judge. Reversed.

Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney General, Jamee J. Patterson and Hayley Peterson, Deputy Atto rneys General, for Defendant and Appellant. Axelson & Corn, Jonathan C. Corn; Pacific Legal Foundation, Paul J. Beard II and Jennifer F. Thompson, for Pl aintiffs and Respondents.2 INTRODUCTION The California Coastal Commission (Commi ssion) appeals from a judgment in a mandamus action directing the Commission to remove three conditions from a coastal development permit amendment (permit) issued to Barbar a Lynch and Thomas Frick (collectively, respondents). The Commission contends respondents waived any challenge to these conditions by signi ng and recording documents agreeing to them and then accepting the benefit of the permit by comple ting their project. The Commission further contends the conditions were valid and supporte d by substantial eviden ce. We agree with both contentions and reve rse the judgment.
BACKGROUND Respondents own adjacent, bl uff-top homes in Encinitas. For at least two decades, their homes were protected by a 100-foot wooden erosion control structure and a 100- foot mid-bluff wall. In addition, a private stairway along the blu ff face provided them with beach access from their homes. In 2003 respondents applie d to the City of Encinitas (City) for authorization to replace the wooden erosion control structure and the mid-bluff wall. As part of the project, they also planned to remove and replace the lower section of the stairway. In 2009 the City approv ed the project, finding the project would not adversely affect the City's general plan policies or its municipal code provisions. The City conditioned its approval on respondents ob taining a permit from the Commission. The same year, respondents applied to the Commission for the required permit. While their application was pending, a seve re storm caused the bluff below Lynch's home3 to collapse. The collapse destroyed portions of the wooden erosion control structure, mid-bluff wall, and stairway. By the time the Commission considered the permit application in 2011, responden ts were seeking to demolish the remainder of the wooden erosion control structure, construct a new 1 00-foot long shotcrete seawall below both lots, install up to 75 feet of mid-bluff geog rid protection below Lync h's lot and part of Frick's lot, and reconstruct the lower section of the stairway. The Commission approved a permit al lowing only the demolition and reconstruction of the seawall and the installati on of the mid-bluff geogrid protection. The permit included numerous special conditions . Among these conditions were special condition 1.a., which precluded re construction of the lower se ction of the stairway, and special conditions 2.1 and 3, which limited the permit's duration to 20 years. Respondents objected to these special cond itions during the applic ation process. The permit also included a special condition requiring re spondents to record deed restrictions in a form appr oved by the Commissi on's executive dire ctor. The deed restrictions stated the Commission approved th e permit subject to the special conditions, and but for the imposition of the special cond itions the project would not be consistent with the California Coastal Act of 1976 (A ct) (Pub. Resources Code, § 30000 et seq.) 1
and the Commission would not have approved the permit. Th e deed restrictions also stated respondents elected to comply with th e special conditions in order to undertake the

1 Further statutory referenc es are also to the Public Resources Code unless otherwise stated.4 development authorized by the permit and, in consideration for th e permit's issuance, they irrevocably covenanted with the Commission that the special conditions constituted covenants, conditions and restrictions runn ing with the land for the duration of the permit. Respondents filed a petition for writ of mandate challenging the conditions precluding them from rebuilding the lower se ction of the stairway and limiting the permit's duration to 20 years. Meanwhile, respondents signed and recorded the required deed restrictions, satisfied the other prio r-to-issuance permit conditions, obtained the permit, and constructed their project. The Commission moved for judgment unde r Code of Civil Procedure section 1094, arguing respondents were barred from proceeding with their mandamus action because they agreed to the permit conditions and accepted the benefit of the permit. The superior court denied the motion, finding re spondents had not specifi cally agreed to nor necessarily accepted the challenged conditions. A few months later, respondents m oved for judgment, arguing the condition precluding them from rebuilding the lower por tion of the stairway was invalid because that portion of the project did not require a permit. In addition, respondents argued the conditions limiting the duration of the permit to 20 years were invalid because the conditions have no nexus to the seawall's impacts and the Commission had no other authority to impose them. The superior cour t substantially agreed with respondents' position. The court granted the motion and issued a writ directing the Commission to remove the challenged co nditions from the permit.5 DISCUSSION
I Waiver by Agreeing to Conditio ns and Accepting Permit Benefits As it did below, the Commission contends on appeal respondents waived their right to challenge the permit conditions when th ey signed and recorded deed restrictions agreeing to the permit conditions and then accepted the perm it's benefit by constructing their project. We agree. Generally, a property owner may only ch allenge an allegedly unreasonable permit condition by refusing to comp ly with the condition and bri nging a mandate action to have the condition declared invalid. ( Building Industry Assn. v. City of Oxnard (1985) 40 Cal.3d 1, 3, fn. 1 ( Building Industry Assn ).) If the property owner complies with the condition, the property owner waives th e right to legally challenge it. ( Ibid. ; see Hensler v. City of Glendale (1994) 8 Cal.4t h 1, 19, fn. 9 ( Hensler ); County of Imperial v. McDougal (1977) 19 Cal.3d 505, 510-511; Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642, 653; Tahoe Keys Property Owners' A ssn. v. State Water Resources Control Bd. (1994) 23 Cal.Ap p.4th 1459, 1484; Rossco Holdings Inc. v. State of California (1989) 212 Cal.App.3d 642, 654-655; Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74, 78, modified by statute as stated in Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193, 1200.) The rule stems from the equitable maxim, "He who takes the benefit must bear the burden." (Civ. Code, § 3521; Edmonds v. County of Los Angeles , supra , at p. 653; see Peers v. McLaughlin (1891) 88 Cal. 294, 299 ["[N]o person, whether minor or adu lt, can be permitted to adopt that part of an entire6 transaction which is beneficial, and reject its burdens. [¶] This co mmanding principle of justice is so well established, that it has become one of the maxims of the law."].) Respondents contend this rule does not appl y to them because they did not, in fact, voluntarily agree to the cond itions. They objected to the conditions during the proceedings before the Commi ssion and then timely filed a petition challenging them. They completed the step s necessary to obtain the permit to save thei r homes. Essentially, they contend they submitted to the conditions under protest and duress. 2 Although there are two reco gnized exceptions to the ge neral waiver rule, neither applies here. The first exception, codified in Government Code s ection 66020, allows a developer to comply with a condition under protest and proceed with development while simultaneously challenging the condition. (Gov. Code, § 66020, subd. (a) & (d)(2); Hensler , supra , 8 Cal.4th at p. 19, fn. 9; Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 241.) However, th is exception applies only to conditions imposed by local agencies that "divest the deve loper of money or a possessory interest in property." It does not apply to conditions imposed by state ag encies or to conditions that restrict "the manner in which a de veloper may use its property." ( Sterling Park, L.P. v.

2 The evidence in the record indicates Frick's home was not in immediate danger at the time the Commission approved the permit. To the extent Lynch's home was in immediate danger, she alterna tively could have applied for an emergency permit from the Commission's executive director, but did not. (§ 30624; Cal. Code Regs., tit.14, § 13136 et seq.) The emergency permit would have e ssentially maintained the status quo pending the outcome of this litigation by allowing her to address the immediate danger without giving her any vested rights. ( Barrie v. Cal. Coastal Com. (1987) 196 Cal.App.3d 8, 17- 18.)7 City of Palo Alto , supra , 57 Cal.4th at p. 1207; Trend Homes, Inc. v. Central Unified School Dist. (1990) 220 Cal.A pp.3d 102, 111.) The second exception applies when an agency imposes new conditions on a permit for a later phase of a project already underway. ( Building Industry Assn. , supra , 40 Cal.3d 1, 3, fn. 1; Rezai v. City of Tustin (1994) 26 Cal.App.4th 443, 450; Laguna Village, Inc. v. County of Orange (1985) 166 Cal.App.3d 125, 127-128; McLain Western #1 v. County of San Diego (1983) 146 Cal.App.3d 772, 777.) In such circumstances, the developer has already commenced the project , made commitments, and incurred costs, which are typically irrevocable decisions. Th e developer, therefore, has no economically practicable option to elect not to accept th e subsequent permit a nd its accompanying conditions. ( McLain Western #1 v. County of San Diego , supra , at p. 777.) At least one appellate court has since limite d the second exceptio n to challenges to fee conditions, making it largely indistin guishable from the first exception. ( Rezai v. City of Tustin , supra , 26 Cal.App.4th at p. 451; see Hensler , supra, 8 Cal.4th at p. 19, fn. 9 [suggesting after the enactment of Government Code section 66020 the first exception is the only exception to the general rule].) As suming without deciding the second exception continues to apply to nonfee conditions, it still does not apply in this case as this case does not involve new conditions imposed on a later phase of a project already underway. Nonetheless, respondents believe there is or should be an "under protest" exception for permit applicants who are opposed to nonfee c onditions like those at issue in this case and desire to build their projects while si multaneously challenging the conditions. We decline to ad opt such an excep tion for several reasons. First, the8 exception would effectively sw allow the general rule as many, if not most, permit applicants are required to submit to conditions they view unfavorably in order to obtain a permit. Second, allowing perm it applicants to accept the benefits of a permit while challenging its burdens would foster litigation and create uncer tainty in land use planning decisions. Finally, unlike an invalid fee co ndition, an invalid nonfee condition is not readily quantified and remedied . If an agency learns a nonfee condition is invalid before a project is built, the agency may be able to address the impacts underlying the condition in an alternate manner. Howe ver, if an agency learns a nonfee condition is invalid after a project is built, the agency may have no practical means of addressing the underlying impacts. Given these policy c onsiderations, we conclude the need for or desirability of an under protest exception of the type advoca ted by respondents is a matter best left for legislative resolution. The dissent adopts respondents' position without discussing the general waiver rule, the currently recognized exceptions, or the wisdom of judicially recognizing a new exception for respondents' situation. In add ition, the dissent suggests it was appropriate for respondents to sign and record documen ts purporting to estab lish covenants running with the land when resp ondents did not actually intend to establish such covenants. In the dissent's view, the documents' severab ility clauses not only allow respondents' subterfuge, but require us to disregard th e documents' contents because the Commission did not establish by clear and convincing evidence respondent s' actually meant what they said in the documents.9 Absent clear, supporting authority, which the dissent has not identified, we are unwilling to condone deliberate subterfuge in recorded documents as doing so would subvert the documents' noticing function. It is also unnecessary for us to condone such conduct as respondents had a reasonable option short of delib erate subterfuge to address any immediate danger to their properties pend ing the outcome of this litigation. (See fn. 2, ante .) Moreover, we disagree with the dissent 's view that respondents' deliberate subterfuge amounted to a failure of proof on the Commission's part. The rules governing the interpretation of deed restrictions are the same as the rules governing the interpretation of contracts. We are require d to interpret them in a way that is both reasonable and carries out their intended purpose. We are also required to ascertain the parties' intent solely from the language of the documents whenever possible. ( Costa Serena Owners Coalition v. Costa Serena Architectural Com. (2009) 175 Cal.App.4th 1175, 1199; Alfaro v. Community Housing Improv ement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1378.) As the language of the documents is not ambiguous regarding resp ondents' intent to establish co venants running with the land in favor of the Commission, the language of th e documents controls and provides ample evidence of respondents' waiver. 3

3 The mere existence of a severability clau se cannot establish an ambiguity or every provision in every contract with a severab ility clause would arguably be ambiguous.10 II Validity of 20-Year Duration Condition
A Even if respondents had no t waived their right to ch allenge the permit conditions, the Commission contends it lawfully limited th e duration of respondents' permit. We agree with this contention as well.
B The court's role in reviewing Commission decisions is to dete rmine " 'whether (1) the [Commission] proceeded without, or in ex cess of, jurisdiction; (2) there was a fair hearing; and (3) the [Commission] abused its discretion.' " ( Ross v. California Coastal
Com. (2011) 199 Cal.A pp.4th 900, 921 ( Ross ).) The Commission abuses its discretion if it does not proceed in the manner required by la w, its order or decision is not supported by the findings, or its findings are not s upported by substantial evidence. ( Ibid. ) In determining whether the Commission' s findings are supported by substantial evidence, we examine the whol e record and consider all re levant evidence, including evidence detracting from the Commi ssion's decision. While we engage in some weighing to fairly estimate the worth of the evidence, we do not conduct an independent review of the record where we substitute our own findings and inferences for the Commission. It is the Commission's role to weigh the prepond erance of conflicting evidence and we may reverse the Commission's decision only if no reasonable person could have reached the same conclusion based on the same evidence. ( Ross , supra , 199 Cal.App.4th at pp. 921- 922.)11 C Chapter 3 of the Act contains the standa rds for determining the permissibility of development projects subject to the Act. (§ 30200, subd . (a).) We must liberally construe these standards to achieve the Act' s purposes and objectives. (§ 30009.) Included within the sta ndards is a requirement th e Commission find a proposed project conforms to the applicable certified lo cal coastal program. (§ 30604 (b).) Here, the City's local coastal program policies a nd implementing regulations applicable to seawalls require that a seawa ll be necessary to protect the principal bluff top structure; not cause, promote, or encourag e bluff erosion or failure; be visually compatible with the character of the surrounding area; and not unnecessarily restri ct or reduce the use of or access to existing beach width. (Encinitas General Plan and Local Coastal Program Land Use Plan, Resource Management Element, Policy 8.5; Encinitas Mun. Code, §30.34.020, subd. (C)(2)(b)(2)-(5).) In addition, for projects such as re spondents, which are located between the nearest public road and the sea shoreline, the Act requires that the Commission find the project conforms to the Act's public access and public recreation policies. (§ 30604 (c).) For seawalls, the Act further requires that the Commission find th e seawall is: (1) required to serve coastal-dependent uses or to protect existing structures or public12 beaches from erosion; and (2) designed to e liminate or mitigate adverse impacts on local shoreline sand supply. (§ 30235.) 4 Here, the Commission imposed the co ndition limiting the permit's duration because it found: (1) the seawall is only requi red to protect respondents' existing homes and is not intended to be a permanent structure accommodating any future redevelopment of the homes; (2) the seawa ll will have long-term impacts on adjacent properties to the north and may have long-term impacts on ot her adjacent properties which are not yet fully addressable; 5 (3) shoreline protection strategies ar e evolving, particularly in light of climate change and sea level rise; and (4) notwithstanding its theoretical lifespan, the seawall will likely need augmentation, repl acement, or substan tial changes within 20 years because of sea level rise and the se awall's location in a high hazard area. Essentially, the duration limit al lows the Commission to revis it the need for the seawall

4 Section 30235 provides in full, "Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion a nd when designed to eliminate or mitigate adverse impacts on loca l shoreline sand supply. Existing marine structures causing water st agnation contributing to pollu tion problems and fishkills should be phased out or upgraded where feasible." 5 More particularly, the Commission noted studies have shown wave reflection off of a seawall and increased turbulence at its terminus leads to accelerated erosion along adjacent, unprotected properties. In this case, such acceler ated erosion will likely cause the bluff of the unprotected properties to th e north to collapse, which could lead to a domino effect of additional requests for "m uch more substantial and environmentally damaging seawalls to protect the residences ." Although the proposed seawall is designed to reduce the impacts to th e northern adjacent propertie s, the impacts cannot be eliminated and are especially problematic be cause "the seawall will be an isolated structure in a stretch of largely unprotected shoreline."13 or require further mitigation for its impact s based on a lifespan corresponding to, but not exceeding, the remaini ng anticipated lifespan of resp ondents' existing homes. The Commission's findings are presumed to be supported by substantial evidence ( Ross , supra , 199 Cal.App.4th at p. 921) and res pondents have not directed us to any record evidence undermining th ese findings. While there may be, as respondents and the dissent suggest, other means of satisfactorily addressing the project's long-term impacts, we may not substitute our judgment for the Co mmission's. It is the Commission's role to weigh the preponderance of any conflicting ev idence before it and we may reverse the Commission's decision only if a reasonable pe rson could not have reached the same conclusion. ( Id. at p. 922.) Moreover, respondents have not identif ied nor have we located any authority categorically precluding the Commission fro m imposing a condition limiting the duration of a permit. To the contra ry, the Commission has broad di scretion to impose conditions to mitigate the seaw all's impacts. ( Ocean Harbor House Homeow ners Assn. v. California Coastal Com. (2008) 163 Cal.App.4th 215, 242 ( Ocean Harbor )). Since the Commission imposed the conditions limiting th e permit's duration to ensu re the seawall's long-term impacts do not extend beyond the time period fo r which the seawall' s existence can be reasonably justified to protect respondents' existing homes, we conclude the conditions fell within the Commission's discretion and were valid. The dissent concludes s ection 30235 precludes th e Commission from imposing any condition on the seawall ex cept a condition intended to eliminate or mitigate the seawall's adverse impacts on the local shor eline sand supply. This same position was14 rejected in Ocean Harbor , supra , 163 Cal.App.4th at p. 241. As the court explained, "The language of section 30235 is permissive , not exclusive. It allows seawalls under certain conditions: (1) when n ecessary to protect existing st ructures and (2) when they can be designed to minimize sand loss. The statute does not purport to preempt other sections of the Act that require the Commi ssion to consider other factors in granting coastal development permits. (E.g., §§ 30 604, subd. (c) [the Commission 'shall' make findings that the permit comp lies with public access and recreational policies], 30251 [scenic and visual qualities of coastal areas 'shall' be considered and protected as a resource of public importance], 30240 [env ironmentally sensitive ha bitats 'shall' be protected].) Nor does the statutory language purport to limit the Commission's duty to consider other impacts a nd discretion to impose cond itions to mitigate them. Homeowners [offer] no legislative history to support [their] view of the statute. Moreover, had it been the Legislature's in tent to limit permit conditions, one would reasonably have expected direct or expre ss limiting language—e.g., seawalls shall be permitted, and the Commission may only impose conditions that mitigate sand loss; or seawalls shall be permitted, and the Commi ssion may not impose any conditions other than those that mitigate sand loss. [¶] . . . [¶] "The Act was enacted as a comprehensive scheme to govern land use planning for the entire coastal zone of California. [Cita tion.] Its broad goals are protection of the coastline and its resources, and ma ximization of public access. [Citation.] . . . [¶] . . . Homeowners [provide ] no evidence suggesting that the Legislature15 intended to give protection of the sand supply exclusive priority over all of the Act's other goals. "Finally, even if section 30235 were reasonably susceptible of Homeowners's interpretation, we would reject it as incons istent with the Legislature's express command that the Act 'be liberally construed to accomplish its purposes and objectives.' [Citations.] [¶] In short, we conclude th at section 30235 does not limit the type of conditions that the Commission may impose in granting a permit to construct a seawall. Rather, the Commission has broad discretion to adopt measures designed to mitigate all significant impacts that the construc tion of a seawall may have." ( Ocean Harbor , supra , 163 Cal.App.4th at pp. 241-242.) We agree with the Ocean Harbor court's analysis, which the dissent has not countered. The dissent alternatively concludes th e conditions limiting the permit's duration are invalid because they do not mitigate any adverse impacts. The record does not support this conclusion because, as we e xplained above, the conditions are aimed at addressing the project's likely long-term impacts to adjacent, unprotected properties from accelerated erosion by ensuring th ere is an opportunity to revisit the need for the seawall or require further mitigation for its impact s at the point in time it will likely require augmentation, replacement, or substantial change anyway. Finally, the dissent concludes the co nditions limiting the permit's duration constitute an unconstitutional taking. The disse nt's conclusion presupposes a particular outcome when respondents apply to renew th eir seawall in the future. However, the outcome of any subsequent application is purely speculative and until the Commission16 reaches a final decision on the application any related takings claim is not ripe for adjudication. ( Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1430.)
III Validity of Condition Precluding the Rebuilding of the Lower Stairway The Commission also contends it lawfu lly conditioned the permit on the removal of the lower stairway from the proj ect plans. We agree once again.
A
1 Preliminarily, the Commission correctly asserts reconstruction of the lower stairway is not exempt from the Act's perm itting requirements. The Act allows the replacement of an existing structure without a permit only if the structure was destroyed by a disaster, conforms to applicable zoning re quirements, is for the same use, is no more than 10 percent larger than its previous size, and is in the same loca tion. (§ 30610, subd. (g)(1).) While the City's local coastal program contai ns similar qualifications, the program nonetheless requires a coastal devel opment permit for projects governed by the City's coastal bluff overlay regulations. 6 (Encinitas Mun. Code, § 30.80.050.) Respondents' project is governed by these regu lations because the regulations apply to all parcels of land within the City where a coastal bluff is present. (Encinitas Mun. Code,

6 The dissent concludes the coastal bl uff overlay zone permit requirements are invalid because they conflic t with section 30610, subdi vision (g)(1). We disagree because the application of section 30610, s ubdivision (g)(1), is expressly subject to conformance with local zoning requirements.17 § 30.34.020, subd. (A).) Therefore, to the ex tent the reconstruction of the lower stairway is a replacement project, it is not ex empt from the permitting requirements.
2 To the extent the reconstruction of the lo wer stairway is a repair or maintenance project, it is also not exempt from the permitt ing requirements. The Act generally allows repair or maintenance activities without a pe rmit if the activities " do not result in an addition to, or enlargement or expansion of, the object" of the activities. (§ 30610, subd. (d).) However, an except ion to the general rule speci fies a permit is required for "[a]ny repair or maintenance to facilities or structures or work located in an environmentally sensitive habitat area, any sa nd area, within 50 feet of the edge of a coastal bluff or environmentally sensitive habitat area, or with in 20 feet of coastal waters or streams that include: [¶] (A) The pl acement or removal, whether temporary or permanent, of rip-rap, rocks, sand or other beach materials or any other forms of solid materials; [¶] (B) The presence, whether temporary or permanent, of mechanized equipment or construction mate rials." (Cal. Code Regs., tit. 14, § 13252, subd. (a)(3); accord, Encinitas Mun. Code, § 30.80.050, subd. (C).) As the reconstruction of the lower stairway would occur on a coastal bluff edge and would involve both the placement of solid materials and the presence of mechaniz ed equipment and construction materials, the general rule does not apply and the reconstruction requires a permit. 7

7 The dissent does not address this regulat ory exception in concluding no permit is required.18 B Since the reconstruction of the lower stai rway requires a permit, the reconstruction must conform to the City's local coastal prog ram. (§ 30604 (b).) Th e City's local coastal program is combined w ith its general plan and many of the general plan's policies are incorporated into the program. Of particul ar relevance here, the program includes Policy 1.6, subdivision (a), of the General Plan's P ublic Safety Element. This policy provides "for the reduction of unnatural causes of bl uff erosion" by "[o]nly permitting public access stairways and no private st airways . . . ." The program also includes Policy 6.7 of the General Plan's Circulation Element. This policy discourages and requires the phasing out of private access to the beach over the bluffs. Respondents contend these general plan po licies are inapplicable because the City has not passed any regulations implementin g them; however, as the Commission points out, the City's coastal bluff overlay regulations , which are also part of the City's local coastal program, effectively implement these policies by allowing only public access facilities on coastal bluffs. (Encinitas Mun. Code, § 30.34.020, subd. (B)(2)(a).) As the reconstruction of the lower stai rway is inconsistent with bo th the general plan policies and the coastal bluff overlay regulations, it is necessarily inconsistent with the City's local coastal program. Ac cordingly, we conclude th e Commission validly precluded reconstruction of the stairway as a condition of approving the permit. Nevertheless, respondents make much of the fact the City previously approved the project, including the stairway, after specifically finding it would not adversely affect the City's general plan policies or its munici pal code provisions. They suggest it is19 disingenuous for the Commission to disapprove the stairway portion of the project for nonconformance with these policies and prov isions after the City previously found conformance. We do not share respondents' concern beca use, at the time the City approved the project, the stairway portion of it was substantia lly different. As the City described it, "A stairway currently exists on the bluff face and will remain. However, portions of the stairwell most adjacent to th e existing mid-bluff retaining wall and lower seawall will be removed as necessary to allow for the insta llation of the proposed improvements and will be replaced to its original configuration with the same materials, dimensions and colors once [the installation of the proposed improvem ents is] completed." In other words, at the time the City approved the project, the stairway portion in volved only th e detachment and reattachment of parts of the stairwell as necessary to facilitate other construction. The lower portion of stairway had not been destroyed and the City had no occasion to consider whether reconstructi on of it conformed to the gene ral plan policies and coastal bluff overlay regulations disfavoring and requiring the phasing out of private access stairways. Thus, contrary to respondents' assertions, we conclude the City's prior conformance finding has no b earing on the validity of the Commission's nonconformance finding.20 DISPOSITION The judgment is reversed. The Commission is awarded its appeal costs.

M C CONNELL, P. J.
I CONCUR:

AARON, J.NARES, J., dissenting: I respectfully dissent from th e majority's decision to reve rse the judgment in this

matter. A. Introduction I would affirm the trial court's de cision striking the California Coastal Commission's (Commission's) permit expiration conditions requiring the seawall permit to "expire" in 20 years unl ess the homeowners Barbara L ynch and Thomas Frick (the homeowners) reapply for a permit, and the Commission exercises its discretion to grant
it. Those conditions are contra ry to Public Resources Code 1 section 30235 of the California Coastal Act of 1976 (§ 32000 et seq.) (Coastal Act), as that code section mandates issuance of a permit for a seawall so long as it is necessary to protect from erosion and is designed to mitigate against a dverse impacts. I would further affirm the trial court's decision that the conditions are regulatory "takings" ba rred by the state and federal constitutions. I would also affirm the trial court's decision that the condition barring repairs to the staircase that provides the homeowners with access to the beach is contrary to both the Coastal Act and the City of Encinitas's (the City's) Local Coastal Program. Finally, the Commission's asserti on that the matter should be remanded to allow it to "revise" the cond itions is without merit. B ecause there is no circumstance under which the expiration date and stairway denial could be revised to make them

1 All further undesignated statutory refe rences shall be to the Public Resources Code.2 consistent with applicable law, no remand to the Commission for additional review was required.
B. Factual and Procedural Background
1. The homeowners and their homes The homeowners own adjacent residentia l properties located atop an 80-foot oceanfront bluff on Nept une Avenue, in Encinitas, Califor nia. The easterly and westerly property lines for their homes are Neptune Avenue and the mean high-tide line of the Pacific Ocean, respectively. Thus, the proper ties consist of the bl uff top areas improved with the homeowners' homes, th e steep coastal bluffs improv ed with a shar ed staircase that goes down to the beach, a sea wall designed to protect the bluffs from erosion while mitigating impacts to unprotected adjacent bl uffs, and the sandy beach area from the toe of the bluff to the mean high- tide line. Similar to many properties along this stretch of coast, the shared staircase connects the homes to the beach area below. The staircase was built more than 40 years ago, prior to the enactment of the Coastal Act in 1976, and its predecessor law, the Coastal Zone Conservation Act of 1972. In 1973, the staircase partially collapsed and was reconstructe d under a permit issued by the County of San Diego 2 following certification from the Coastal Zone Conservation Commission (the Commission's predecessor agen cy) that its reconstruction was exempt from state permit requirements. Since that time, the homeowners have regularly enjoyed the use of their shared staircas e, and they have taken actions to maintain it. The staircase

2 The County of San Diego approved the project because the City of Encinitas was not incorporated until 1986.3 is important to the homeowners, because it provides the only direct access to the beach portion of their properties. The access afforded by the staircase is especially important for Lynch, given her age (close to 80 at the time of the application) and health limitations (very high blood pressure). In 1986 the homeowners constructed a b each-level seawall and mid-bluff retention structure. In 1989, the Commission determin ed that these struct ures, along with the staircase, were consistent with the Coasta l Act and issued a Coastal Development Permit (CDP) authorizing them to remain. The CDP issued for these structures had no expiration date.
2. The city approves the stai rway repair and new seawall In 2003 the homeowners app lied to the City of Encinita s for a permit to replace the aging seawall with a state-of-the-art, text ured concrete seawall system that included structural tiebacks and mid-bluff geogrid pr otection (the Project). The Project was designed to protect not just the homeowners ' homes, but also the beach-going public. The permit application specified that portions of the staircase would be removed and then replaced to facilitate construction. As certifie d by its engineers, the new seawall system's useful life would be 75 years. In January 2009 the City voted unanimous ly in favor of the Project. The City found that the Project was consistent with th e City's Local Coastal Program, and that it would "not adversely affect th e policies of the Encinitas Gene ral Plan or the provisions, regulations, conditions or policie s imposed by the Municipal Code ." As to the staircase, the City's resolution of approval states:4 "A stairway currently exists on the bluff face and will remain. However, portions of the stairwell most adjacent to the existing midbluff retaining wall and lower seaw all will be removed as necessary to allow for the installation of the proposed improvements and will be replaced to its original config uration with the same materials, dimensions and colors once the cons truction of the tieback shotcrete walls are completed."
3. The homeowners apply to the Commission for a CDP As required by the City's approval, the homeowners filed an ap plication with the Commission to amend their existing seawall permit. On December 30, 2009, the Commission issued its first of thre e staff reports for this Project. In this first report (Staff Report No. 1), Commission st aff recommended approval of a 50-foot seawall below Lynch's home, but recommended de nial of any seawall to prot ect Frick's home, denial of the entire-mid-bluff structure, and denial of the replacement of any portion of the staircase removed to facilitate the seaw all's construction. Commission staff recommended no expiration date for the seaw all; instead, it recommended that, in 30 years, the Commission re-evaluate the need for any additional mitigation that the seawall's impacts on sand loss might require. On January 15, 2010, there was a heari ng on the homeowners' CDP application. However, the Commission staff incorrectly an alyzed the homeowners' geological site assessment and building plans, and the hearing was continued to a later date to resolve the misunderstanding. In December 2010, while the homeowners ' application for an amended CDP was still pending before the Commission, a series of large winter storms occurred in Southern California. The storms caused unprecedented flooding and major property damage along5 the coast. As a result, Pres ident Obama declared San Diego County to be an emergency disaster relief area. On December 24, 2010 , in the immediate aftermath of a severe storm, the homeowners' bluff suffered a la rge-scale collapse, followed by additional collapses. These collapses destroyed the exis ting seawall system and the lower portion of the staircase. As result of these events , the homeowners amended their CDP application, and the Commission scheduled a second hearing for June 15, 2011. Due to the new conditions caused by the bl uff collapses, in its second staff report dated June 1, 2011 (Staff Report No. 2), the Commission staff recommended a fulllength, 100-foot seawall protecting both ho meowners' homes, and a mid-bluff structure not to exceed 75 linear feet. However, it onc e again recommended denial of the staircase reconstruction. The homeowne rs had believed that they had successfully compromised the staircase dispute by offering a lateral access easement across their beach property at the foot of the bluff to the public in exchange for the Commission's approval of the staircase reconstruction. Like Staff Report No . 1, Staff Report No. 2 did not include or mention a CDP expiration date for the seawa ll. The Commission staff merely proposed a requirement that the homeowners and the Commission would re-evaluate the need for any additional mitigation in 20 years (as opposed to the original 30). The hearing on the homeowners' CDP ap plication took place on June 15, 2011. However, the Commission continue d the hearing to allow itsel f further time to consider the homeowners' argumen ts and evidence.6 On July 21, 2011, Commission staff pu blished its third and final report (Staff Report No. 3), the report th at the Commission ultimately adopted in support of its permit decision. Although just seven weeks had elapsed since the Commission's publication of Staff Report No. 2, Staff Repor t No. 3 eliminated the idea of reevaluating the need for additional mitigation after 20 years and instea d proposed that the seawall permit expire after 20 years from the date of approval. The homeowners would be entitled to have seawall protection for only 20 years, after wh ich they would have to remove the seawall or reapply for a new CDP to keep it (Sp ecial Conditions 2 and 3). The expiration requirement was justified as a means of pr otecting the Commission's "future shoreline planning options," in the ev ent future political and legal changes (i.e., legislation or judicial decisions) allowed the Commission to outright ban seawalls. Under Special Condition 1.a., the staff also recommended outright denial of the repair of the lower portion of the stairway. Staff Report No. 3 also outlined the adve rse impacts of seawalls generally as follows: (1) physical occupation of beach ar ea, (2) long-term beach loss, (3) entrapment of bluff sand, and (4) impacts to unprotected ad jacent bluffs. With regard to the specific impacts of the project, Staff Report No. 3 fou nd that general impacts (1) and (2) did not apply because the seawall "will open up approximately 425 sq. ft. of new beach area." General impact (3) was mitigated through a $31,542 payment and general impact (4) was mitigated through engineering an d design of the seawall. The homeowners objected to the seawall and the stairway conditions, both in written objections submitted to the Commission prior to the hearing on August 10, 2011,7 and in oral testimony at the hearing itself. The Commission nevertheless adopted Staff Report No. 3, requiring the s eawall permit to expire in 20 years and denying the stairway reconstruction. The denial of the right to reconstruct the homeowners' stairway resulted in the homeowners not being able to access their beach properties, even though they had previously granted an easement to the public across those properties.
4. The petition for writ of mandate On October 7, 2011, the homeowners time ly filed a petition for writ of mandate. In November 2011 the homeowner s paid $31,542 in sand mitiga tion fees and satisfied the myriad other conditions precedent required to obtain the Commission's CDP, including execution of deed restrictions recognizing the objected-to seawall and stairway conditions. On December 6, 2011, the Commi ssion formally issued the seawall permit, and the homeowners proceede d with their Project. On October 29, 2012, the Commission filed a motion for judgment on the homeowners' petition on the grounds that th e homeowners had waived their right to challenge the seawall and stairway conditi ons because they had executed the deed restrictions. The court found no waiver and denied the motion. Th e court held that the homeowners "have neither specif ically agreed to the conditi ons nor failed to challenge their validity." Thereafter, the homeowners filed a moti on for judgment on the petition, arguing that the seawall and stairway conditions are unl awful. The trial cour t agreed, holding that the Commission's denial of the stairway vi olated the City's Municipal Code and the8 Coastal Act and that the Commission's impos ition of the 20-year ex piration date on the seawall violated the Coastal Act and was uncons titutional. As to the stairway, the trial court found: "Petitioners are entitled to reconstruc t their beach stairway pursuant to Encinitas Municipal Code and the state Coastal Act. Special Condition (1)(a) impermissibly requi red Petitioners to delete the stairway reconstruction from their building plans before Respondent would issue a CDP for the constructi on of a seawall. This condition is invalid as the Encinitas M unicipal Code and Local Coastal Program allow Petitioners to recons truct their stairway which was destroyed by a 'disaster' as that te rm is defined in Public Resources Code § 30610(g). In imposing Special Condition 1(a), Respondent did not proceed in the manner requ ired by law and its decision was not supported by substantial evidence." As to the expiration date and reapplic ation conditions, the trial court found: "Petitioners are also entitled to a CDP without an expiration date, and the re-application requireme nt, imposed through Special Conditions 2 and 3. Respondent had a duty to grant the CDP for the seawall and was not authorized to impose an arbitrary expiration date. Public Resources Code § 30235 requires Respondent to grant a CDP to protect existing structures in danger from erosion. In discharging this affirmative duty, Respondent may not impose arbitrary and unreasonable conditi ons; only conditions that have a nexus (i.e., logical link) to a specifi ed adverse impact, and then only when such conditions are propor tional to the impact, may be lawfully and constitutionally impose d. Special Conditions 2 and 3 do not meet these criteria and are regulatory takings. By imposing Conditions 2 and 3, Respondent failed to proceed in the manner required by law and its findings we re not supported by substantial evidence." The court also held that that the 20- year expiration condition was unnecessary because "the government always has the power to force repair or change should the seawall become unsafe. It may proceed by code enforcement, inverse condemnation, or many other legal practices to protect against a dangerous condition. . . . [T]he 20 year9 limit is simply a power grab desi gned to obtain furt her concessions in 20 years, or force the removal of seawalls at a later time . . . ."
DISCUSSION
A. Standard of Review Here, two standards of review govern ou r determination of whether the court erred in finding in favor of the homeowners on their petition for writ of mandate. As to the issue of whether the homeown ers waived their right to challenge the seawall and stairway conditions, "'[t]he burden . . . is on the party claiming a waiver of a right to prove it by clear and convincing evid ence that does not leave the matter to speculation, and "doubtful cases will be decided against a waiver" [citati on].' [Citations.] The waiver may be either express, based on the words of the waivin g party, or implied, based on conduct indicating an inte nt to relinquish the right." ( Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) On the issue of whether the conditions imposed were unlawful, because the facts are undisputed, our review is de novo. ( Silvers v. Board of Equalization (2010) 188 Cal.App.4th 1215, 1219.) "'A c ourt does not, in other words, defer to an agency's view when deciding whether a regulation lies within the scope of the authority delegated by the Legislature.'" ( Schneider v. California Coastal Com . (2006) 140 Cal.App.4th 1339, 1344.)
B. Waiver I would conclude that the Commission did not prove by clear and convincing evidence that the homeowners wa ived their right to challenge the permits conditions.10 In order to preserve the right to challe nge permit conditions in court, the permit applicant must first inform th e Commission of his or her objectio ns, either at or prior to the Commission's hear ing on the permit: "Any aggrieved person shall have a right to judicial review of any decision or action of the commissi on by filing a petition for a writ of mandate in accordance with Secti on 1094.5 of the Code of Civil Procedure, within 60 days after the decision or action has become final. [¶] For purposes of this section . . . an 'aggrieved person' means any person who, in person or through a representative, appeared at a public hearing of the commission, local government, or port governing body in connection with the decision or action appealed, or who, by other approp riate means prior to a hearing, informed the commission, local government, or port governing body of the nature of his concerns or who for good cause was unable to do either. 'Aggrieved person' includes the applicant for a permit and, in the case of an approval of a local coastal program, the local government involved." (§ 30801.) Before the August 10, 2 011 hearing on their CDP, the homeowners submitted written objections to the seawall and stai rway conditions. The homeowners also appeared at the Commission hearing to obje ct to those conditions. The homeowners thereafter filed a writ of mandate to challeng e the conditions in court. (§ 30801.) Thus, the homeowners followed all th e legal requirements for challenging the CDP conditions, and put the Commission on notic e of their objections and their intent to challenge them in court. There was nothing more that the Coastal Act, or any other provision of law, required of the homeowners in order to preserve their right to challenge the conditions. The Commission contends, and the majority has concluded, that the homeowners waived their right to challenge the co nditions by executing deed restrictions11 acknowledging the permit conditions so that th ey could proceed with necessary repairs. However, simply acknowledging the permit restri ctions is not the eq uivalent of agreeing to them. As stated, ante , at every stage of the proceedings, the homeowners objected to the restrictions. Indeed, the homeowners filed their writ before the Commission issued the CDP. Moreover, the homeowners have not taken any actions to abide by the conditions. As the majority acknowledg es, without complyi ng with the permit conditions, there can be no waiver. ( Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74, 78.) The Commission points to th e following language in the deed restrictions to support its waiver argument: "Owner(s) . . . hereby irrevocably covenant[] with the Commission that the Special Conditions (shown in Exhibit B hereto) shall at all times on or after the date on which th is Deed Restriction is recorded constitute for all purposes covenants, conditions and restrictions on the use and enjoyment of the Property." However, agreeing that the permit conditions will attach to the property's deed is not the same as complying w ith the condition. The pur pose of recording the deed restrictions is simply to put po ssible future purchasers on notice that the restrictions exist. It was not "subterfuge" by the homeowners to re cord those restrictions, as the majority contends, while still maintaining the right to challenge them. Indeed, the deed restrictions contemplate the possibility that they might be challenged in the future and, in whole or in part be invalidat ed by including a severability cl ause that provides, "If any provision of these restrictions is held to be invalid, or for any reason becomes unenforceable, no other provision sha ll be affected or impaired."12 Last, the Commission asserts the homeowner s waived their right to challenge the permit conditions because they executed the deed restrictions without noting they were doing so "under protest." Howe ver, as the Commission concedes, there is no provision in the Coastal Act for accepting a permit "under protest." The Commission asserts the homeowner's action is barred by the Mitigation Fee Act. (Gov. Code, § 66000 et seq .) This contention is unavailing. The Mitigation Fee Act was enacted to cu re a problem facing developers: They could only challenge fees imposed as a cond ition of development if they refused to pay the fees. ( Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 241.) If they refused to pay the fees, they could not obtain a building permit. ( Ibid. ) The Legislature enacted the Mitigation Fee Act to "provide[] a procedure whereby a developer could pay the fees under protest, obtain the building permit, and proceed with the project while pursuing an actio n to challenge the fees." ( Ibid. ) However, the Mitigation Fee Act only applies to local ag encies. (Gov. Code, § 66020, subd. (a).) The Commission asserts that the Mitigati on Fee Act bars the homeowners' action because they did not accept th e permit restrictions "unde r protest." However, the Mitigation Fee Act has no app lication here as the homeown ers are not challenging any fees and do not seek money damages from the Commission.
C. The Seawall Condition
1. Development of the Coastal Act The Coastal Act's predecessor, the Califor nia Coastal Zone Conservation Act of 1972 (former § 27000 et seq .), an initiative measure, esta blished regional control over13 coastline development. "The Act created 6 re gional commissions with jurisdiction over a 'permit area' extending from 1,000 yards inla nd to the seaward limit of the state's jurisdiction. Within the pe rmit area, the regional commission controlled all development by the issuance of permits." (12 Witkin, Su mmary of Cal. Law ( 10th ed. 2005) Real Property, § 861, p. 1031.) The California Coastal Zone Co nservation Act was superseded in 1976 by the Coasta l Act. (12 Witkin, supra, Real Property, § 861, p. 1032.) The Coastal Act sets forth policies rega rding public access, recreation, marine environment, land resources, ne w development, and industri al facilities. (12 Witkin,

supra, Real Property, § 861, p. 1032.) "The Coastal Act assigns chief resp onsibility for regulating the use and development of the 'coastal zone' [cita tion] to a 15-member California Coastal Commission." (12 Witkin, supra, Real Property, § 862, p. 10 32.) "A local government located within the coastal zone must prepare a local coastal program for the portion of the coastal zone that is within its jurisdic tion [citation], which is presented to the Commission for certification." ( Id. at p. 1033.) "Coastal development permits are require d for most developments in the coastal zone." (12 Witkin, supra, Real Property, § 863, p. 1033.) Development permits are issued by local agencies whos e local coastal programs have been certified, or in some cases, such as this cas e, by the Commission. ( Id. at p. 1034.)14 2. The seawall's 20-year exp iration condition imposed by the Commission is contrary to section 302 35 of the Coastal Act The Coastal Act provides that a seawall " shall be permitted when required . . . to protect existing structures . . . in danger fro m erosion and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply." (§ 30235, italics added.) Thus, the permitting of a seawall is mandatory when two conditions are present: (1) an existing structure is in danger from erosion, and (2 ) the seawall is designed to eliminate or mitigate adverse impacts on the local shoreline sand supply. There is no dispute that both of those conditions are present in this case. As the majority notes, "the Commissi on has broad discretion to adopt measures designed to mitigate all significan t impacts that the constructi on of a seawall may have." ( Ocean Harbor House Homeowners A ssn. v. California Coastal Com. (2008) 163 Cal.App.4th 215 ( Ocean Harbor House ).) In that case the Court of Appeal upheld an inlieu fee on homeowners who sought a seawall permit, on the grounds that the fee mitigated for identified impacts caused by the seawall. ( Id. at pp. 240-242.) Unlike the mitigation fee in Ocean Harbor House , the permit-expiration condition in this case is not a mitigation condition. The permit expiration does not mitigate any impacts the seawall may cause in the future. Rather, it me rely gives the Commission the option to deny the permit out right in 20 years. The majority concludes that the seawall's 20-year expiration condition is valid as it is "aimed at addressing the project's likely long-term impacts to adjacent, unprotected properties." However, as the Commission itsel f noted, the impact on adjacent properties15 was already mitigated through engineering and design of the seawall. In the Commission's words, the seawall "has been designed and conditioned to mitigate its impact on coastal resources such as scenic quality, geologic concer ns, and shoreline sand supply." However, the expiration date on the seaw all condition is not intended to address these impacts. Rather, as the Commission has stated, the intent behind the expiration date is "to allow for potential removal of th e approved seawall." As the Commission's staff report explains: "To ensure that this project doe s not prejudice future shoreline planning options, including with re spect to changing and uncertain circumstances that may ultimately change policy an d other coastal development decisions (including not only climate change and sea level rise, but also due to legisla tive change, judicial determinations, etc.), staff recommends that this approval be conditioned for a twenty-year period. . . . [¶] . . . Of course it is possible that physical circumstances as well as loca l and/or statewide policies and priorities regarding shoreline ar moring are significantly unchanged from today, but it is perhaps more likely that the baseline context for considering armoring will be different . . . ." Thus, as the Commission makes clear, the expiration date is in tended to give the Commission the right in 20 years to deny the homeowners the continued use of a seawall even though it meets design requirements. Be cause the seawall's condition states that the seawall permit would "expire" after 20 years if the Commission did not agree to a new seawall upon the homeowner's application, that permit condition is directly contrary to the mandatory language of section 30235. This does not mean the City or Commission cannot review the effects of the seawall in the future. The 20-year seawall permit expirati on is unnecessary because, with16 or without a permit expiration, both the C ity and the Commission have the power to evaluate the seawall's condition at any time, and to address a ny actual or potential threat to life or property that the seawall may pose in the future. As the trial court observed, the City and the Commission have the power to fo rce repair or change should the seawall become unsafe, or in need of repair or ch ange. There are many other avenues by which the government may proceed, such as code enforcement or invers e condemnation. The Commission always has the power to implement reasonable regulations related to the sea wall so long as they do not conflict with the Coastal Act. The Commission also asserts the condition is necessary to "ensure [the seawall's] consistency with the City's local coastal pr ogram." However, the policies to which the Commission cites all address the importance of seawall design. (See Encinitas Mun. Code, §§ 30.34.020 (B) (8) & (C)(2)(b).) N one of the local program provisions the Commission cites address nondesi gn requirements, like the pe rmit-expiration condition. The Commission also contends that requi ring the homeowners to apply for a new seawall permit allows them to assess whether the homeowner s still need the seawall and whether there are possible alternatives. Ho wever, the record cont ains no evidence to substantiate the Commission's concern that the seawall may no longer be needed. In fact, as the Commission acknowledges "[ b]luffs in this area are subject to a variety of erosive forces and conditions" th at will only worsen. The Commission also asserts that it ne eds the expiration condition in case the homeowners redevelop the bluff tops in a wa y that no longer justifies the need for a seawall, for example, if new structures ar e set far enough back from the bluff edge.17 Again, the Commission seeks to add limiting language to secti on 30235 where none exists. Section 30235 does no t say that a homeowner in need of bluff protection is entitled to a seawall "until such time as redevelopment of the bluff-top makes one unnecessary." The statute entitles the homeowners to a seawall so long as there is a need for it, and there is mitigation for impacts on sand supply. Moreove r, there is no evidence in the record that the homeow ners will seek to redevelop their properties around the time that the seawall permit is set to expire. Indeed, it is exceedingly unlikely that a homeowner would time an application for rede velopment at the same time as expiration of the seawall permit.
3. The seawall condition is unconstitutional Even if the permit-expiration requirem ent was not barred by statute, it would constitute an unconstitutional condition unde r both the state and federal Constitutions because it is a "taking" of the homeowners' property. The California Constitution guarantees as "inalienable" the ri ghts of "acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Cal. Const., art. I, § 1, italics adde d.) Similarly, the takings clause of the 5th Amendment to the United States Constitutio n protects a homeowner's use and protection of its property. ( Nollan v. Cal. Coastal Com. (1987) 483 U.S. 825, 833-834 ( Nollan ).) The right to use, enjoy, and protect property is not a government privilege, but a fundamental, constitutional right. ( Id. at p 833, fn. 2 ["[T]he right to build on one's own property—even though its exercise can be subjected to legitimate permitting requirements—cannot remotely be described as a 'governmental benefit.'"].) A person's18 property rights exist regardless of the regulat ory restrictions that subsequently burden those rights. ( Nectow v. Cambridge (1928) 277 U.S. 183, 187; Euclid v. Ambler Realty
Co. (1926) 272 U.S. 365, 384.) A zoning change or gove rnmental dictate that interferes with such continued use is unconstitutional. ( Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 552 ["'The rights of users of property as those rights existed at the time of the adoption of a zoning ordinance are well recognized and have always been protected."'] The right to continue a particular use of land is a "property right." A permitting agency cannot, except under narrow circumstances, revoke its approval once it is granted. ( Korean American Legal Advocacy Fou ndation v. City of Los Angeles (1994) 23 Cal.App.4th 376, 391, fn. 5.) A lawfully i ssued permit may only be revoked where, after notice and a fair hearing on re vocation, the agency has determ ined that the permittee's use has created a nuisance, or the permittee has othe rwise violated the law or failed to comply with the permit's conditions. ( Community Development Com. v. City of Fort Bragg (1988) 204 Cal.App.3d 1124, 11 31-1132 ["A municipality's pow er to revoke a permit is limited" and "may not be revo ked arbitrarily without cause ," and "notice and hearing must be afforded a permittee prior to revoca tion of a use permit".]; Gov. Code, § 65905.) None of those situations exist in this case. These constitutional rights and property interests are protected in the permitting process because individuals in that situation are particularly vulnerable to government pressure to give them up. ( Koontz v. St. Johns River Water Mgmt. Dist. (2013) 133 S.Ct. 2586, 2594-2595 ["[L]and- use permit applicants are especially vulnerable19 to . . . coercion . . . [and] [e]xtortionate demands."].) The unc onstitutional conditions doctrine provides that "'the government may not deny a benefit to a person because he exercises a constitutional right.'" ( Id. at p. 2594.) The United States Supreme Court applie d the unconstitutional conditions doctrine in the land-use context in Nollan, supra, 483 U.S. 825, and Dolan v. City of Tigard (1994) 512 U.S. 374. These cases hold that the ta kings clause allows the government to take a property interest as a condition of pe rmit approval, but only if the condition bears an essential nexus and "rough proportionality" to adverse impa cts caused by the proposed project. ( Nollan, supra, 483 U.S. at p. 837 [requiring an "essential nexus" between a permit condition and the adverse impacts caused by the proposed project); Dolan, supra, 512 U.S. at p. 391 [requir ing "rough proportiona lity"].) Otherwise, the condition is unconstitutional. ( Dolan, at p. 385.) Here, the Commission's condition that th e seawall permit expires in 20 years unconstitutionally forces the homeowners to waive their rights and property interests without any nexus or "rough proportionality" to potential adverse impacts caused by the seawall. The condition forces the homeowners to wa ive their present and future rights to protect their homes, as guaranteed to them by section 30235 of the Coastal Act and the California Constitution. Despite substantial evidence establishing that the homes will continue to be threatened, th e condition effectively extinguishes their right to protect their properties, beginning in 2031. The fact that the homeowners may apply to the Commission "to either remove the seawall in it s entirety, change or reduce its size or20 configuration, or extend the length of time th e seawall is authorized" does not guarantee their property rights because the Commission may decide to deny the permit. Indeed, the Commission has stated that the reason for the condition is "to allow for potential removal of the approved seawall." Section 30235, along with the constitutional right to protect one's property, mandate authorization of the seawall to protec t against erosion. Unless the seawall became a nuisance in 2031, and the homeowners were given notice, a fair hearing and adequate findings to justify the seawall re moval, the Commission wo uld have no basis for revoking the seawall. The expiration condition in essence requires the homeowners to convey to the Commission a negative easement across their bluffs. A negative easement imposes "'specific restrictions on the use of the property'" it covers. ( Wooster v. Department of Fish & Game (2012) 211 Cal.App.4th 1020, 1026.) It "prevent[s] acts from being performed on the property [and] may be cr eated by grant, express or implied." ( Wolford v. Thomas (1987) 190 Cal.App.3d 347, 354.) A nega tive easement is "property" within the meaning of the takings clause, and when the government subjects land to a negative easement in its favor, it must pay for it. ( Southern Cal. Edison Co. v. Bourgerie (1973) 9 Cal.3d 169, 172-173.) Expiration of the seawall permit in 20 31 extinguishes the homeowners' right to their seawall and gives the Commission the disc retion to require the seawall's removal. Indeed, as discussed, ante , the Commission's express in tent behind the expiration condition is to allow for removal of the s eawall. The Commission has made clear its21 opposition to seawalls in gene ral, and the homeowners' seawa ll in particular. When the homeowners' seawall permit e xpires, the Commission will have a negative easement over the homeowner's bluff, without paying for it as required by the takings clause. The condition also requires the homeowners to pay another CDP application fee to the Commission, along with additional engineer ing and consultant fees, when the permit expires in order to again prove their right to protect their homes. These are monetary obligations imposed on the homeowners that are unrelated to any adverse impacts that the seawall might have on sand supply loss. Money is property under the takings clause, and, in the permitting context, monetary exactions must be shown to have an essential nexus and rough proportionality to a project's impact. ( Koontz, supra, 133 S.Ct. at p. 2603.) The Commission demands relinquishment of the homeowners' rights and interests without making the constitutionally required co nnection to the impact of the seawall. The Commission does not identify any adverse im pacts attributable to the seawall that justify waiver of their constitutional and statutory rights. The Commission does not identify what adverse impacts justify dedi cation of a negative easement across their bluffs. The Commission also does not identi fy what adverse im pacts justify extra monetary costs imposed on the homeowners. In sum, for all the foregoing reasons, the permit-expiration requirement is an unconstitutional condition.
D. The Stairway Prohibition Both City's Local Coastal Program and the Coastal Act provide that "any structure . . . destroyed by a disaster" ma y be replaced and is exempt from the22 requirement of a CDP. (Encinitas Mun. C ode, § 30.80.050, subd. (E); Pub. Resources Code, § 30610, subd. (g).) A "disaster" is de fined as "any situation in which the force or forces which destroyed the structure to be re placed were beyond the control of its owner." (§ 30610, subd. (g)(2)(A).) Here, severe winter storms in December 2010 caused the bluff to collapse and take down part of the homeowners' stairway. The forces that caused the stairway's partial destruction were beyond the homeowners' c ontrol. Further, even if the homeowners' stairway reconstruction did not qualify for th e "disaster" exemptio n, it would still qualify as a "repair" activity that is exempt from the CDP requirement. Both the Encinitas Municipal Code and the Coastal Act provide that "no coastal development permit shall be required" for "[ r]epair and maintenance activities to existing structures or facilities that do not result in an addition to, or enlargement or expansion of the structures or facilities . . . ." (Encin itas Mun. Code, § 30.80.050, subd. (C); Pub. Resources Code, § 30610, su bd. (d).) The replacement of less than 50 percent of a structure is considered a "repai r" of that structure entitled to CDP exemption. (Cal. Code of Regs., tit. 14, § 13252, subd. (b).) The ma jority does not disput e that the staircase constitutes a "structure" under th e statute and the municipal c ode, or that the homeowners were seeking to repair less than 50 percent of that structur e. Thus, pursuant to both the municipal code and the Coastal Act, no CDP was required for the repairs to the staircase. The Commission asserts, and the majority concludes, that the application of the City's "Coastal Bluff Overlay Zone" (CBO Z) regulations exclude the homeowners'23 stairway from the benefits of the exemptions under the Coas tal Act and the City's Local Coastal Program. This contention is unavailing. The CBOZ does not exclude the homeowners' stairway from the disaster or repair exemptions. The CBOZ states that "[e]xisting legal structures . . . on the face of a bluff may remain unchanged" and may be mainta ined. (Encinitas Mun. Code, § 30.34.020, subd. (B)(4).) The Commission also cites the City's "s tructural nonconformity" regulations for the proposition that they can only be repaired or maintained, but no t replaced. Assuming that the stairway meets the de finition of a "structural nonconf ormity," its reconstruction is still entitled to CDP exemptio n. Encinitas Municipal Code section 30.76.050, subdivision (C) states repair and mainte nance may be performed on a structural nonconformity "so long as the nonconformity is not enlarged, reloca ted or increased in intensity . . . ." Finally, to the extent the City's Lo cal Coastal Program and general policy statements could be interprete d to prohibit stairway reconstr uction, they would be invalid under the Coastal Act. Section 30005, subdivi sion (a), allows a city to impose stricter "conditions, restrictions, or limitat ions," but only if th ey are "not in conflic t with this act." (See Yost v. Thomas (1984) 36 Cal.3d 561, 572-573 [local coastal programs must conform to the Coastal Act]; McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912, 930, fn. 9 [sam e].) Section 30610, subdiv ision (g) provides that "no coastal development permit sha ll be required pursuant to this chapter for the following24 types of development and in the following area s: [¶] . . . [¶] [t]h e replacement of any structure . . . destroyed by a disaster." The Commission asserts that this exemption is limited by the following sentence in section 30610, subdivision (g ) that states "[t]he replacem ent structure shall conform to applicable existing zoning requirements." (§ 30610, subd. (g)(1).) The Commission interprets this sentence to mean "the replac ement of a structure destroyed by a disaster also must conform to applicable zoning requi rements." However, as that sentence makes clear, it is the "structure," not its replacem ent, that must confor m to applicable zoning requirements. Thus, it is the structure's design, aesthetics and dimensions that must comply with local zoning regulations. However, no zoning regulation can be contradictory to the law governing the qu estion of whether a particular replacement project is entitled to exemption. As is made clear in section 30610 , subdivision (g)(1), the stairway repair project is exempt. Moreover, as the trial court correctly found, the City of Encinitas's land use policies, specifically, policy 1.6 of the Public Safety Land Use Element and Circulation Policy 6.7, discouraging struct ures on bluffs, explicitly refe r to "new" structures and private accessways. Thus, th ey do not apply to repairs to existing structures.
E. The Trial Court's Order that th e Commission Remove the Conditions The Commission asserts that rather than striking the offending conditions from the homeowners' permits, the court should have rema nded the matter to allow it to "revise or to consider revisions to the conditi ons." The contenti on is unavailing.25 Because the court exercised its inde pendent judgment in striking down the offending conditions, it was not required to remand the matter for reconsideration. ( Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 999-1001.) Because there is no circumstance under which the expiration date and stairw ay denial could be revised to make them consistent with applicable la w, no remand to the Commission for additional review was required. For all the foregoing reasons, I would a ffirm the judgment of the trial court striking the seawall permit expiration and stairway conditions.

NARES, J.