In Denial of Permit to Rebuild Home, California Coastal Commission Disagrees With Homeowner Andre Hurst's Attorney on Interpretation of Encinitas LCP

On March 7, 2019, Coastal Commission Staff denied Andre Hurst permit to rebuild his 70-year-old home. In analyzing the staff report, the coastal commission staff asserts that the Encinitas LCP prohibits relying on shoreline protection. 

Hurst's attorney argued that the Encinitas LCP does not prohibit relying on legal shoreline protection. Encinitas LCP requires that the stability analysis take into account “all factors that might affect slope stability.” (Municipal Code § 30.34.020D.) It is not in dispute that existing shoreline protective structures affect slope stability. The Encinitas LCP does not state or imply that landowners cannot rely on lawful shoreline protective structures. Municipal Code § 30.34.020D requires geotechnical evidence to establish the following: "The review/report shall certify that the development proposed will have no adverse effect on the stability of the bluff, will not endanger life or property, and that any proposed structure or facility is expected to be reasonably safe from failure and erosion over its lifetime without having to propose any shore or bluff stabilization to protect the structure in the future." The geotechnical report conformed to Municipal Code §30.34.020D. The geotechnical report was independently reviewed for the City by James Knowlton, who approved. As cited above from page 33 of the Staff Report, Coastal Commission Staff Geologist and Engineer Joseph Street and Leslie Ewing agree that the site is stable with the Commission approved shoreline protection. The use of the word "propose”, combined with the language "in the future", makes clear that the LCP does not contemplate ignoring past stabilization or protection measures. The Oxford University dictionary defines "propose" as a verb meaning to "put forward". Hurst does not and will not need to "propose" any shore or bluff stabilization “in the future”. Proposed Special Condition No. 3 waives any right to install new shore or bluff stabilization.

It is Hurst's opinion, had the LCP intended to prohibit a property owner from relying upon lawfully erected protective structures for redevelopment, it would have been very simple for such language to be included. There is no such language. In Hurst's attorney's opinion, the Staff Report relies entirely upon unsupported inferences and implications and avoids the express language of the Encinitas LCP. 

Source: California Coastal Commission