The Cambrian

No easement necessary for Harmony landowners to rebuild barn, court rules

This is part of a one-mile stretch off Highway 1 that the Coastal Commission had under a public easement.
This is part of a one-mile stretch off Highway 1 that the Coastal Commission had under a public easement. jmellom@thetribunenews.com

In a legal victory for three Harmony property owners, a California appellate court has reversed itself on the question of whether they must provide a mile-long public easement on a rocky bluff overlooking the ocean.

The landowners had sought a permit to rebuild a farmhouse and barn on the property, but the California Coastal Commission had required the easement as a condition of the work.

The court initially sided with the commission in March, voting to require the easement, but reversed that ruling Oct. 23.

“The easement requirement amounted to an unconstitutional taking,” Judge P.J. Gilbert wrote for the three-judge panel. The proposed repairs, he wrote, were exempt from the county’s coastal development permit (CDP) requirements because the code “does not require a CDP for repairs that do not change the use or dimensions of the structure.”

The case dates to 2002, when Walter Emmick sought to make repairs on the property, which he acquired in the 1990s. He did some minor work on the deck and roof, which didn’t require county approval, and applied for a permit to do more extensive repairs before he died the following year, leaving ownership to a family trust of three sisters: Denise McLaughlin of Tahoe Vista, Sharyn Schrick of Sacramento and Sandra Bowman of Burbank.

In 2004, the county approved a permit to allow work on the farmhouse but required that an easement be established. The family didn’t appeal that requirement but did no work and instead “walked away” from the permit, according to their attorney, Paul Beard of the Pacific Legal Foundation.

Later, after the barn blew down, the family applied for a new permit, which the county approved without any easement requirement.

The Sierra Club, Surfrider Foundation and two coastal commissioners, however, objected and appealed to the Coastal Commission, which reinstated the easement condition.

The family then filed suit in 2010.

The state argued in court that the easement requirement became permanent when the family failed to appeal it. But the plaintiffs responded that the county’s second permit superseded the first one, which they said had expired. They also maintained the work constituted repairs to the property rather than improvements, which would have triggered the easement requirement.

The court, in its decision, agreed, stating that “the work occurs within the existing ‘footprint’ of the property.”

The Pacific Legal Foundation, a Sacramento-based public interest law firm that advocates for private property rights, represented the family at no charge.

Beard, the foundation’s lead attorney in the case, said Wednesday that the ruling was noteworthy because the appellate court reversed its own previous decision.

“Court of appeal cases are rarely reheard, and to have the appeals court reverse itself and then reverse the judgment of the trial court is unusual.”

He said the court agreed to reconsider its initial decision because it “originally applied the wrong standard of review: The court initially looked only to evidence and arguments the Coastal Commission put forth and entirely ignored our evidence.

“The court stands for the proposition, broadly speaking, that landowners can’t be bound by old permits they never acted under,” Beard said. “You’ve got to be fair with permit applicants and not unfairly bind them to a permit they never accepted.”

Christopher Pederson, deputy chief counsel for the Coastal Commission, disagreed with the ruling.

“We think the court was right the first time around and did not need to re-explore the merits of its decision,” Pederson said Wednesday.

He said the Coastal Commission was evaluating whether to appeal the case to the California Supreme Court but had yet to make a decision as of Wednesday. The commission has 40 days from the date of the ruling to file an appeal, he said.

Meanwhile, Beard said the sisters were “ecstatic” over the decision.

“We hope that it’s the last chapter in this four-year legal battle. Even if it’s appealed, it’s unlikely that the (state) Supreme Court would consider it,” he said.

McLaughlin, one of the three plaintiffs, said, “We always remained confident that we would prevail, and now we look forward to completing the long-delayed repairs to our family property.”

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