Featured Case

Coastal Commission Can't Arbitrarily Dictate Aesthetics to a Private Landowner

McNamee v. California Coastal Commission

Contact:  Paul J. Beard II

Status:  Petition for review denied May 20, 2010.

Summary: The McNamees own a beachfront home along Corona Del Mar Beach in Newport Beach, California.  The McNamees have lived there for about three decades.  The McNamees, like their neighbors, own a portion of the beach at the foot of the beach cliff (the homes are located at the top of the cliff).  On the privately owned portion of the beach, the McNamees have over the years installed a few small amenities, such as a shower and bathroom, storage lockers, built-in barbecue, palapa, and floral arrangements, all at or near the base of the cliff. 

The McNamees never have objected to the public using these private facilities.  Local Boy Scout and junior high groups routinely use the facilities for their own celebrations.  Because of his heart problems and skin cancer, the bathroom facilities and the palapa have helped Mr. McNamee enjoy his portion of the beach over the years.

McNamee property with amenities - Corona Del Mar, CA

The Coastal Commission issued a cease-and-desist order against the McNamees in May, 2004, contending that all of the above-described amenities are unpermitted development.  In addition to contesting the cease-and-desist order’s conclusion that the amenities require a permit, the McNamees also sought an after-the-fact permit.  The Commission, at its July, 2005, meeting, denied the after-the-fact permit.

The Commission based its permit denial on two primary grounds:  (1) the McNamees’ amenities are inconsistent with development along that particular section of Corona Del Mar Beach; and (2) the amenities negatively affect recreational use of the public portion of the beach, because beachgoers are led to believe, by the amenities’ presence, that the beach is entirely private.  The McNamees sought relief from the commission’s permit denial in the trial court and lost.  Now, PLF will represent them on appeal.

In response to those two claims by the Coastal Commission, the McNamees and their Pacific Legal Foundation attorneys argue:

1) the McNamees’ amenities AREN’T inconsistent with development on nearby properties. Although their neighbors to one side – the Southeast – (whose beaches are smaller) don’t have any structures on their property, the neighbors on the other side (the northeast) all have fences or hedges on their beaches. And up the beach a stretch is the state’s own public beach, with parking spaces, bathrooms, etc. Bottom line: The Coastal Commission was being entirely arbitrary in looking only to the southeast of the McNamees to determine what the "character" of development is in the area.

2) there is NO EVIDENCE that the McNamees’ amenities deter anyone from using the adjacent public portions of the beach. The Coastal Commission conjured up this claim with no testimony from any beach-user who was "offended" or "put off" or "confused" by the presence of the McNamees’ picnic facilities.

• Although it is not, strictly speaking an eminent domain case, the case raises fundamental issues of property rights: Although the Coastal Commission hasn’t formally confiscated the McNamees’ beach property, the Commission is trying, effectively, to take control of their land, by ordering that it be kept as a nature preserve. The McNamees are deprived of the full use, enjoyment and control of their property – while they must still pay taxes and upkeep on it, and be subject to property owners’ liability for any problems or injuries that might happen on it
  
  
• The case also illustrates the arrogance of the California Coastal Commission, a rogue agency long notorious for abusing property rights and property owners. Established more than three decades ago to safeguard the state’s precious coastal resources, the agency has gone beyond that mandate, and makes a regular practice of micromanaging small property owners – and pushing beyond the legal limits to its authority. This habit of abuse is undoubtedly related to the fact that the commissioners are not elected – they’re appointed, and shielded from direct accountability to voters.
  
  
• Pacific Legal Foundation regularly clashes with the California Coastal Commission in court, and has defeated a number of its power grabs against small landowners and business people, including in one landmark case – Nollan v. California Coastal Commission – that went all the way to the U.S. Supreme Court, where the majority opinion accused the Coastal Commission of a pattern of "out and out extortion."