The Coastal Commission has no jurisdiction over a fence at the base of a coastal bluff in Torrance because a 1988 boundary agreement among state entities and landowners authorized the fence, the Second District Court of Appeal ruled.

The court said it did not matter that the Coastal Commission was not party to the 1988 agreement, and the court rejected the Commission's argument that an exception in the Coastal Act for boundary settlements did not apply to physical activities that could impact the environment.

Located at the back of a public beach, the fence has a long history. After two people fell to their deaths while climbing on the unstable bluffs behind the beach, a chain link fence was erected during the late 1960s. The fence was apparently destroyed by a storm and rebuilt in the early 1970s. Property owner Martin Burke, who has represented homeowners on the bluff top, said the fence was in place when he moved there in 1972. The fence was on private property, as the homeowners' properties extend to the mean high tide line on the beach.

Burke obtained a permit from the city to rebuild the fence on his property in 1974, and a permit to replace the fence in 1981. Property owners to the north and south of Burke received permits from the predecessor to the Coastal Commission in 1973 and 1975 to extend the chain link fence so that it was about 1,000 feet long.

Meanwhile, a dispute over public access to the beach at the base of the bluffs simmered until September 1988, when Paseo de lay Playa Drive homeowners, the State Lands Commission, the attorney general's office and Gov. Deukmejian signed a formal boundary agreement. That agreement established a public easement over a strip of private sandy beach at the bottom of the bluffs, and it allowed owners to maintain an eight-foot-tall chain link along the edge of the easement.

In 2005, Burke sought to repair the fence on his behalf and that of 14 other property owners. At the Coastal Commission's insistence, Burke filed an application for an after-the-fact approval and replacement of 930 feet of eight-foot-tall fence. In July 2006, the Commission rejected the application, finding the fence would change the view of the bluffs from the beach and could result in homeowners intensifying uses of the properties along the bluff face and at the toe of the bluff.

Burke sued the Commission, arguing, among other things, that the Commission had no jurisdiction under the 1988 boundary agreement to reject the fence. Los Angeles County Superior Court Judge David Yaffe ruled for the Commission. However, a unanimous three-judge panel of the Second District Court of Appeal, Division Two, said it was clear the 1988 agreement precluded Coastal Commission regulation of the fence.

A provision in the Coastal Act (specifically, Public Resources Code § 30416, subdivision (c)) states, "Boundary settlements between the State Lands Commission and other parties and any exchanges of land in connection therewith" shall not be considered a "development" requiring Coastal Commission review.

"Thus," wrote Presiding Justice Roger Boren, "to the extent the erection or reconstruction of the fence is a ‘boundary settlement,' the Coastal Commission has no authority to require a permit and thus lacks jurisdiction over the fence."

The Coastal Commission argued § 30416, subdivision (c), applied only to "the setting of boundaries, and not to physical development in the coastal zone," and the Commission noted it was not a party to the 1988 agreement.

But the Second District maintained the fence merely was part of the boundary settlement, and, "The Coastal Commission has no statutory authority over the ‘setting of a boundary' or settling boundary disputes." Justice Boren continued, "[T]he Legislature has specifically carved out § 30416, subdivision (c), as an exception from the otherwise expansive coverage of the Coastal Act."

The appellate panel ordered the Coastal Commission to vacate its permit denial and declared the Commission lacks jurisdiction.

The Case:
Burke v. California Coastal Commission, No. B207188, 08 C.D.O.S. 14666. Filed December 1, 2008.
The Lawyers:
For Burke: J. David Breemer, Pacific Legal Foundation, (916) 419-7111.
For the Commission: John Saurenman, (213) 897-2000.