Surfrider Found. v. Martins Beach 1, LLC

Prior to this complete closure, on February 6, 2009, the San Mateo County Planning and Building Department had sent appellants an "Informational Warning Letter" that, among other things, referenced observations that the gate allowing access to Martins Beach was closed and the billboard advertising access had been painted over. The County requested a schedule of operation and an explanation "of how the schedule relates to historic patterns of public use," to allow a determination of whether future beach closures "would trigger the need for a CDP." The County asserted that "any change in the public's ability to access the shoreline at Martins Beach triggers the need for a CDP because it represents a 'change in the intensity of use of water or access thereto.' " (See § 30106.) On February 9, appellants responded, informing the County they "voluntarily intended to maintain the same amount and type of access as did our predecessors." Appellants also stated the beach was usually closed in winter and they considered the public "invited guests."

In April 2009, the County responded to appellants' February letter, again asserting appellants were required to apply for a CDP before changing the public's access to Martins Beach. Among other things, the County requested additional information regarding the history of public access, referencing publications stating the public previously had year-round access to Martins Beach. In May, appellants again informed the County they would "provide access to the extent it was provided by the" prior owners, but appellants asserted they were not legally obligated to do so. Appellants also offered to "provide [the County] with affidavits" to support their contentions about the circumstances under which access and use had historically existed.

In June 2009, appellants filed a lawsuit against San Mateo County (the County) and the California Coastal Commission (the Coastal Commission), seeking a declaration that, among other things, they were not required to maintain public access to Martins Beach. In October, the trial court in the case sustained the defendants' demurrers

In October 2012, an unincorporated association going by the name "Friends of Martin's Beach" filed a lawsuit against appellants seeking access to the coast at Martins Beach based on claims including a constitutional right of access or an express dedication of access. ( Friends of Martin's Beach v. Martins Beach 1, LLC, et al. (Super. Ct. San Mateo County, CIV517634).) The trial court in that case entered summary judgment in favor of appellants, concluding Martins Beach is private property not subject to any right of public access. The plaintiff appealed, and Division 2 of this court reversed in part. ( Friends of Martin's Beach v. Martin's Beach 1 LLC (Apr. 27, 2016, A142035) review den. and opn. ordered nonpub. July 20, 2016.) As relevant here, the court of appeal held the plaintiff had "alleged facts sufficient to state a common law dedication claim" and appellants had "not shown that as a matter of law they are entitled to judgment" on the claim. ( Id . at p. 45.) The court of appeal remanded for trial on the dedication claim. ( Id. at p. 51.) The Friends of Martin's Beach case is still pending in the trial court; accordingly, the existence of public access rights to Martins Beach is presently undetermined.

In March 2013, Surfrider filed the present action. The complaint alleged appellants engaged in "development" (§ 30106) within the meaning of the Coastal Act by closing public access to the coast at Martins Beach. The complaint alleged appellants closed the gate to Martins Beach Road, added a sign to the gate stating "BEACH CLOSED KEEP OUT," covered over another sign that had advertised public access, and stationed security guards to deny public access. The complaint sought a declaration that appellants' conduct constituted development under the Coastal Act requiring a CDP, injunctive relief, imposition of fines, and an award of attorney fees under Code of Civil Procedure section 1021.5. Appellants filed a cross-complaint seeking a declaration that its conduct did not constitute development under the Coastal Act and an injunction prohibiting trespassing.

The Coastal Act also includes findings about the importance of public participation. Section 30006 provides, "The Legislature further finds and declares that the public has a right to fully participate in decisions affecting coastal planning, conservation and development; that achievement of sound coastal conservation and development is dependent upon public understanding and support; and that the continuing planning and implementation of programs for coastal conservation and development should include the widest opportunity for public participation."

B. Statutory Interpretation Principles

" 'As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose.' [Citation.] We begin by examining the statutory language because the words of a statute are generally the most reliable indicator of legislative intent. [Citations.] We give the words of the statute their ordinary and usual meaning and view them in their statutory context. [Citation.] We harmonize the various parts of the enactment by considering them in the context of the statutory framework as a whole. [Citations.] 'If the statute's text evinces an unmistakable plain meaning, we need go no further.' [Citation.] 'Only when the statute's language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.' " ( In re C.H. (2011) 53 Cal.4th 94 , 100-101, 133 Cal.Rptr.3d 573 , 264 P.3d 357 .) "When a provision

Finally, appellants contend an interpretation of the Coastal Act permitting requirement that encompasses their conduct "would lead to all manner of absurd results. Must a private owner seek a permit anytime he wishes to throw a party with guests, and then again before he asks his guests to leave? Must a private owner who has a permit to install a water pump seek a permit every time he wishes to turn the pump on or off? Is a permit necessary to have a garage sale at one's home situated on the Coast?" However, the Coastal Act recognizes and addresses the possibility that the broad definition of development could be applied in situations where it would be inappropriate to require a CDP. Thus, section 30610 (entitled "Developments authorized without permit") provides that no permit shall be required with respect to a number of specific listed activities; with respect to "temporary event[s]" that do "not have any significant adverse impact upon coastal resources" (§ 30610, subd. (i)(1)); and with respect to "[a]ny category of development, or any category of development within a specifically defined geographic area, that the commission ... has described or identified and with respect to which the commission has found that there is no potential for any significant adverse effect, either individually or cumulatively, on coastal resources or on public access to, or along, the coast...." (§ 30610, subd. (e); see also Cal. Code Regs., tit. 14, Div. 5.5, Ch. 6 ["Exclusions from Permit Requirements"].) Further, section 30624.7 authorizes the Coastal Commission to establish procedures for the executive director to issue "waivers from [CDP] requirements for any development that is de minimis" and defines "de minimis" as a development that "involves no potential for any adverse effect, either individually or cumulatively, on coastal resources...." (See also Pacific Palisades , supra , 55 Cal.4th at p. 797, 149 Cal.Rptr.3d 383 , 288 P.3d 717 [noting that, through section 30624.7, the Coastal Act "accounts for the possibility a proposed project may not affect coastal resources"]; Gualala , supra , 183 Cal.App.4th at p. 69, 106 Cal.Rptr.3d 908 [citing section 30624.7 and stating "[t]hus, temporary or de minimis activity that does not adversely impact coastal resources is characterized in the statute as 'development' but may be exempted from the permit requirement"].)

That the Legislature adopted exceptions from the permitting requirement and authorized further exemptions for conduct that would literally constitute "development" under section 30106 shows the broad definition was meant to be taken literally and the possibility that it would be absurd to require a CDP for certain conduct would be addressed through the procedures for exceptions in the Coastal Act. Appellants fail to show that the exceptions procedures are inadequate. The Gualala court rejected an argument directly analogous to that

ntend interpreting the Coastal Act to require they apply for a CDP would constitute an unconstitutional taking under the state and federal Constitutions. Surfrider and amicus the Coastal

Justice Kennedy argued in his concurrence that the Due Process Clause was the more appropriate place to look for limitations on judicial power. "The due process clauses of the state and federal Constitutions guarantee property owners 'due process of law' " prior to any deprivation of " 'property.' " ( Kavanau , supra , 16 Cal.4th at p. 770, 66 Cal.Rptr.2d 672 , 941 P.2d 851 ; see also Cal. Const., art. I, § 7 ; U.S. Const., 14th Amend., § 1.) The due process clauses "guarantee appropriate procedural protections [citation] and also place some substantive limitations on legislative measures." ( Kavanau , at p. 771, 66 Cal.Rptr.2d 672 , 941 P.2d 851 .) Justice Kennedy reasoned that, "[i]f a judicial decision, as opposed to an act of the executive or the legislature, eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law. The Due Process Clause, in both its substantive and procedural aspects, is a central limitation upon the exercise of judicial power." ( Stop the Beach , supra , 560 U.S. at p. 735, 130 S.Ct. 2592 (con. opn. of Kennedy, J.); see also id. at p. 737, 130 S.Ct. 2592 ["The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is 'arbitrary or irrational' under the Due Process Clause."].) Without opining whether the act would be a violation of procedural or substantive due process, Justice Kennedy declared that "without a

Thus, under the plurality's views and under Justice Kennedy's concurrence, a judicial act that would constitute a taking

Appellants contend the trial court's injunction constitutes a per se physical taking exempt from the multifactor Penn Central analysis because it stripped them of their right to exclude the public from Martins Beach. We conclude that, although the trial court's injunction effected a physical invasion analogous to an easement, the temporary nature of the injunction means it may not be treated as a per se taking. Because appellants make no attempt to show the injunction effected a taking under the Penn Central test (or

The question in both Nollan and Dolan was "whether the government could, without paying the compensation that would otherwise be required upon effecting such a taking, demand the easement as a condition for granting a development permit the government was entitled to deny." ( Lingle , supra , 544 U.S. at pp. 546-547, 125 S.Ct. 2074 .) Nollan ultimately held the condition was an uncompensated taking because it did not "substantially advance the same government interest that would furnish a valid ground for denial of the permit." ( Lingle , at p. 547, 125 S.Ct. 2074 ; see also Nollan , supra , 483 U.S. at pp. 834-842, 107 S.Ct. 3141 ; Dolan , supra , 512 U.S. at pp. 386-387, 114 S.Ct. 2309 .) In Dolan , although there was a relationship between the easement and the impact of the proposed store expansion, the Court concluded the city that imposed the easement condition had failed to demonstrate a " 'rough proportionality' " between the condition and "the impact of the proposed

2. The Temporary Nature of the Trial Court's Injunction Means It May Not be Treated as a Per Se Taking

Surfrider and amicus the Coastal Commission point to the language in Loretto describing the taking in that case as a "permanent physical invasion." ( Loretto , supra , 458 U.S. at p. 432, 102 S.Ct. 3164 .) They emphasize the trial court's injunction is not permanent, because it only lasts until there is a decision on a CDP. We agree the temporary nature of the injunction means it may not be treated as a per se taking.

a. Loretto's Permanency Requirement

Loretto drew a distinction between the "permanence and absolute exclusivity of [the] physical occupation" in that case (cable company equipment attached to a building) and the "temporary limitations on the right to exclude" involved in other cases. ( Loretto , supra , 458 U.S. at p. 435, fn. 12, 102 S.Ct. 3164 .) The classic "physical occupation," as defined by Loretto is a "permanent and exclusive occupation by the government that destroys the owner's right to possession, use, and disposal of the property. The Court defined the destruction of these interests as follows: (1) possession, 'the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use of the space,' [citation]; (2) use, 'the permanent physical occupation of property forever denies the owner any power to control the use of the property; he not only cannot exclude others, but can make no nonpossessory use of the property,' [citation]; and (3) disposal, 'even though the owner may retain the bare legal right to dispose of the occupied space ... , the permanent occupation of that space ... will ordinarily empty the right of any value, since the purchaser will also be unable to make any use of the property.' " ( Boise Cascade, supra, 296 F.3d at p. 1353, quoting Loretto , supra , 458 U.S. at pp. 435-436, 102 S.Ct. 3164 .) Emphasizing the centrality of the permanency requirement to its per se rule, Loretto observed, "The cases state or imply that a physical invasion is subject to a balancing process, but they do not suggest

Regarding the geological testing, the Court of Appeal had concluded the activity was a taking because, as characterized by

Contrary to appellants' assertions, Steinhart v. Superior Court (1902) 137 Cal. 575 , 70 P. 629 and City of Needles , supra , 6 Cal.App.4th 1881 , 8 Cal.Rptr.2d 753 , do not support their per se takings claim. Steinhart held that, under the California Constitution, property may not be taken pending the final judgment in an eminent domain proceeding without prior compensation. ( Steinhart , at p. 577, 70 P. 629 [in context of a proceeding to condemn a railroad right of way, rejecting proposition that court may "authorize the party seeking to condemn to take immediate possession

Although the United States Supreme Court in Arkansas Game did not appear to hold that takings claims based on temporary flooding are literally subject to the Penn Central test, the court outlined factors for consideration similar to those in Penn Central . Thus, the court stated that "time is indeed a factor in determining the existence vel non of a compensable taking." ( Arkansas Game , 568 U.S. at p. 38, 133 S.Ct. 511 .) Also relevant is the foreseeability of the invasion, "the character of the land at issue and the owner's 'reasonable investment-backed expectations' regarding the land's use," and the "[s]everity" of the interference. ( Id. at p. 39, 133 S.Ct. 511 .)

Clearly, whether under Penn Central or a different multifactor test, the analysis to determine whether a temporary physical invasion is a taking is complex. The analysis requires the courts to consider the nature of the burden imposed on the claimant, in light of the factual and legal context. (See Arkansas Game , 568 U.S. at pp. 38-40, 133 S.Ct. 511 ; Penn Central , supra , 438 U.S. at pp. 128-137, 98 S.Ct. 2646 .) In this case, the relevant background would seem to include, among other things, the history of public access at Martins Beach, the record of communications between appellants and the County and the Coastal Commission, the purposes and functioning of the Coastal Act, and the public trust doctrine. The analysis also imposes an evidentiary burden on the party claiming to be subject to a taking, including the necessity of putting on evidence regarding the impact of the claimed taking (here, a temporary injunction requiring limited public access), including the degree of interference with " 'reasonable investment-backed expectations.' " ( Arkansas Game , 568 U.S. at p. 39, 133 S.Ct. 511 ; see also Penn Central , supra , 438 U.S. at p. 124, 98 S.Ct. 2646 ; Keystone Bituminous Coal Assn. v. DeBenedictis (1987) 480 U.S. 470 , 485, 107 S.Ct. 1232 , 94 L.Ed.2d 472 [claimant bears burden of showing taking]; Seiber v. United States (Fed.Cir. 2004) 364 F.3d 1356 , 1372 [claimants' "temporary takings claim also fails under the Penn Central test because they 'failed to introduce

Appellants in the present case elected not to assert a claim that the trial court's injunction is a taking under the Penn Central test or any other multifactor analysis. Appellants did argue below an injunction would constitute an unconstitutional taking. But completely absent from the record is any reliance by appellants on the

"Whether the moving party has satisfied the statutory requirements so as to justify a fee award is a question committed to the discretion of the trial court; we review the ruling for abuse of discretion. [Citations.] An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] This standard of review affords considerable deference to the trial court provided that the court acted in accordance with the governing rules of law. We presume that the court properly applied the law and acted within its discretion

As to the third factor, appellants contend private enforcement by Surfrider was unnecessary because "the enforcement action was duplicative of activity already underway by both the County of San Mateo and the Coastal Commission." However, the record citations provided by appellants do not demonstrate the existence of enforcement actions sufficient to show an abuse of discretion. Instead, the record citations reveal a series of correspondence between appellants and the County and the Coastal Commission between 2009-2014. None of the record citations indicate any enforcement action had been commenced by the time the present action was filed in March 2013. Indeed, in a December 2014 letter the Coastal Commission was still urging appellants to voluntarily remedy Coastal Act violations identified in a

DISPOSITION

The trial court's judgment is affirmed. Respondent is awarded its costs on appeal.

We concur.

NEEDHAM, J.

BRUINIERS, J.

In September 2009, appellants stopped allowing the public access to the coast at Martins Beach. Appellants did not apply for a CDP allowing them to do so.

In September 2011, the Coastal Commission sent appellants a letter asserting, among other things, that "the erection of beach closure signs ... as

C. The Plain Language of the Coastal Act Controls

The trial court held appellants' conduct in closing public access to Martins Beach was "development" under the Coastal Act because it decreased access to the water. (§ 30106 ["development" includes "change in the intensity of use of water, or of access thereto"].) Appellants argue, "the simple acts of closing a gate and painting a sign do not constitute 'development' that requires a permit. It is commonsense that these acts are nothing like those specifically covered by the statute-such as constructing or demolishing a building, dredging or mining the land, or subdividing parcels." Similarly, they assert, "What the actions included in Section 30106's definition have in common is that they significantly change the nature of the land or a structure built on the land in question."

A takings claim that challenges the application of regulations to particular property is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." ( Williamson Co. Regional Planning v. Hamilton Bank (1985) 473 U.S. 172 , 186, 105 S.Ct. 3108 , 87 L.Ed.2d 126 ; accord Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006 , 1018, 73 Cal.Rptr.2d 841 , 953 P.2d 1188 ( Landgate ); see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340 , 348, 106 S.Ct. 2561 , 91 L.Ed.2d 285 ["an essential prerequisite ... is a final and authoritative determination of the type and intensity of development legally permitted on the subject property"]; Hensler v. City of Glendale (1994) 8 Cal.4th 1 , 12, 32 Cal.Rptr.2d 244 , 876 P.2d 1043 ["The impact of a law or regulation on the owner's right to use or develop the property cannot be assessed until an administrative agency applies the ordinance or regulation to the property and a final administrative decision has been reached with regard to the availability of a variance or other means by which to exempt the property from the challenged restriction."]; Boise Cascade Corp. v. United States (Fed.Cir. 2002) 296 F.3d 1339 , 1351-1352 ( Boise Cascade ) [collecting cases].) Such a final decision "informs the constitutional determination whether a regulation has deprived a landowner of 'all economically beneficial use' of the property, [citation], or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred, [citation]. These matters cannot be resolved in definitive terms until a court knows 'the extent of permitted development' on the land in question." ( Palazzolo v. Rhode Island (2001) 533 U.S. 606 , 618, 121 S.Ct. 2448 , 150 L.Ed.2d 592 ; see also Williamson , at p. 191, 105 S.Ct. 3108 .)

Appellants' takings claim with respect to the Coastal Act permit requirement is necessarily distinct from its claim with respect to the trial court's injunction (see part III, post ). The injunction was a final determination that

"[T]he Takings Clause 'does not prohibit the taking of private property, but instead places a condition on the exercise of that power.' [Citation.] In other words, it 'is designed not to limit the governmental interference with property rights per se , but rather to secure compensation in the event of otherwise proper interference amounting to a taking.' [Citation.] While scholars have offered various justifications for this regime, we have emphasized its role in 'bar[ring] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.' " ( Lingle , supra , 544 U.S. at pp. 536-537, 125 S.Ct. 2074 .)

"In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests," the United States Supreme Court has identified only certain narrowly-defined categories of "government interference with property" that are considered per se (or "categorical") takings. ( Arkansas Game & Fish Commission v. United States (2012) 568 U.S. 23 , 31, 133 S.Ct. 511 , 184 L.Ed.2d 417 ( Arkansas Game ); see also Lingle , supra , 544 U.S. at p. 538, 125 S.Ct. 2074 ; Powell v. County. of Humboldt (2014) 222 Cal.App.4th 1424 , 1436, 166 Cal.Rptr.3d 747 ( Powell ).) These include "regulations that completely deprive an owner of 'all economically beneficial us[e]' of her property," as well as governmental action that "requires an owner to suffer a permanent physical invasion of her property-however minor." ( Lingle , at p. 538, 125 S.Ct. 2074 ; see also Arkansas Game , at pp. 32-33, 133 S.Ct. 511 .) "[A]side from the cases attended by rules of this order, most takings claims turn on situation-specific factual inquiries." ( Arkansas Game , at p. 32, 133 S.Ct. 511 [citing Penn Central , supra , 438 U.S. at p. 124, 98 S.Ct. 2646 ].)

In Penn Central , supra , 438 U.S. 104 , 98 S.Ct. 2646 , the Supreme Court prescribed "an 'ad hoc' factual inquiry" to determine when a regulation is a "restriction

From Nollan and Dolan , as construed by Lingle , it is clear that government action imposing a permanent public access easement is generally treated as a per se taking requiring compensation, if not imposed as a proper adjudicative exaction. ( Lingle , supra , 544 U.S. at p. 547, 125 S.Ct. 2074 [ Nollan and Dolan both involved "dedications of property so onerous that, outside the exactions context, they would be deemed per se physical takings"]; accord

As cases involving only "temporary limitations on the right to exclude," Loretto mentioned the decision in

In sum, Loretto and its progeny demonstrate that for a physical invasion to be considered a per se taking, it must be permanent. Although the

Appellants are absolutely correct that there is a well-established body of caselaw recognizing temporary takings. As explained by the United States Supreme Court in Arkansas Game , supra , 568 U.S. at pages 32-33, 133 S.Ct. 511 , "[O]ur decisions confirm that takings temporary in duration can be compensable. This principle was solidly established in the World War II era, when '[c]ondemnation for indefinite periods of occupancy [took hold as] a practical response to the uncertainties of the Government's needs in wartime.' [Citation.] In support of the war effort, the Government took temporary possession of many properties. These exercises of government authority, the Court recognized, qualified as compensable temporary takings.... [¶] Ever since, we have rejected the argument that government action must be permanent to qualify as a taking. Once the government's actions have worked a taking of property, 'no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.' " (See also Otay Mesa , supra , 670 F.3d at p. 1363 ["Although there has been some confusion over the use of the terms 'temporary' and 'permanent' in the takings context, [citations] it is clear that courts recognize both types of physical takings."].)

As to the first factor, appellant contends the present action has not " 'resulted in the enforcement of an important right affecting the public interest' " ( Woodland Hills , supra , 23 Cal.3d at p. 935, 154 Cal.Rptr. 503 , 593 P.2d 200 ) because it only resulted in enforcement of the Coastal Act permitting requirement as to Martins Beach. Appellants' cases do not demonstrate there is any such bright line rule. Appellants primarily rely on Norberg v. California Coastal Com. (2013) 221 Cal.App.4th 535 , 164 Cal.Rptr.3d 440 , in which a property owner "sought to invalidate permit conditions affecting planned residential improvements on his privately owned oceanfront property." The court acknowledged that "the proper application of statutory language ... is an important right," but rejected the proposition that "the private attorney general doctrine was designed to reward plaintiffs who, in pursuit of their own interests, just happened to bring about the enforcement of a statute that benefits the public." ( Norberg , at p. 541, 164 Cal.Rptr.3d 440 ; see also Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106 , 114, 212 Cal.Rptr. 485 [" Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest."].) Norberg is inapposite: Surfrider brought the present action to enforce the Coastal Act for the benefit of the public, not its own narrow interests. (See Landgate, supra , 17 Cal.4th at p. 1018, 73 Cal.Rptr.2d 841 , 953 P.2d 1188 ["a rational permit regulation scheme is imposed on the public as a whole to ensure the orderly development of real property"].)

As to the second factor, appellants dispute the action conferred a "significant benefit," again citing Norberg . However, Norberg is again inapposite. There, the action achieved only "the invalidation of a permit condition