An exemption to the California Environmental Quality Act for construction of a sea wall below two houses has been upheld by the Fourth District Court of Appeal. The court ruled that the potential collapse of a bluff could threaten public safety and qualified for an emergency exemption under CEQA.
The City of Solana Beach, in San Diego County, was the locale for the case. In early 2000, the ocean began eating into a bluff between two sea walls. In February, a 10-foot overhang north of the site collapsed, fracturing the sandstone bluff. Over the following several months, the ocean created a 12-foot deep notch at the base of the bluff.
In January 2000, the owners of two houses on the top of the bluff filed an application for a permit to fill the notch. On February 29, 2000, the Solana Beach Planning Department issued a director's use permit with conditions. In June, however, the homeowners requested a permit modification to allow them to construct a steel-reinforced wall. The city determined a steel wall would need a special use permit. As permit processing continued, the homeowners requested an emergency exemption to CEQA review. On December 19, the City Council approved the special use permit based on an emergency exemption to CEQA.
The group CalBeach Advocates sued, arguing that the project did not qualify for an exemption. San Diego County Superior Court Judge Judith McConnell (since elevated to the Fourth District bench) granted summary judgment for the city. CalBeach appealed, but a unanimous three-judge panel of the Fourth District, Division One, upheld the ruling.
CalBeach contended that beach erosion was an ongoing condition, and not a sudden, unexpected occurrence. Even collapse of the bluff below the two homes would not be unexpected. CEQA limits the emergency exemption to occurrences involving clear and imminent danger. There was no need for immediate action, CalBeach argued. The group pointed to the length of time between the bluff fracture in February, and the approval of an emergency exemption in December.
"We agree the failure of the bluff below Real Parties' homes is not unexpected," Justice Terry O'Rourke wrote for the court. "However, the anticipation of a collapse does not prevent it from being an emergency. [Public Resources Code] Section 21080, subdivision (b)(4) exempts not only projects that mitigate the effects of an emergency, but also projects that prevent emergencies."
The court pointed to two reports from civil engineers in late 2000 that said the bluff collapse was imminent, probably within a few weeks. "Real parties' residences are situated a mere eight feet from the edge of the bluff. For that reason, any collapse of the bluff would place both properties in danger," Justice O'Rourke wrote. "Further, the bluff collapse could threaten the safety of members of the public if it occurred when members of the public were near the bluff."
The court also rejected CalBeach's argument that Solana Beach's CEQA findings were inadequate. Public Resources Code § 21168.5 governed the decision, and that section does not require any findings, the court held.
CalBeach Advocates v. City of Solana Beach, No. D038885, 02 C.D.O.S. 10976, 2002 DJDAR 12731. Filed October 9, 2002. Ordered published November 6, 2002.
For CalBeach: Donald Wayne Brechtel, Worden, Williams, Richmond, Brechtel & Kilpatrick, (858) 755-6604.
For Solana Beach: James Moose, Remy, Thomas & Moose, (916) 443-2745.