ENCINITAS, Calif. — An empty lot on a 70-foot-high bluff above the ocean seemed like the perfect place to build a house when the owners bought the parcel for $1.8 million.
Now a state ruling means they'll have to put the house farther away from the water, where they won't see the shore. It's a result of climate change and California's response to it.
Jim Lindstrom, 78, and his wife Karla, 69, lost a battle with the California Coastal Commission, a powerful agency that oversees permitting in coastal areas. The commission ruled the house in northern San Diego County must start 60 feet back to protect it for many decades, as higher waters erode the bluff.
The requirement will shrink the home and put it in a "tunnel" between existing houses built 25 feet from the edge, Jim Lindstrom said. It ruined his plan to include a porch where he could watch waves hit the cliffs as they curve to the south.
"When you're sitting on that porch and you look directly to the right and directly to the left, all you see are towering structures," Lindstrom said, describing a home set 60 feet back. "You wouldn't see the ocean sitting in a chair on your back porch."
The case marks a pivotal point in an escalating battle over building on California's coast in the era of climate change. After a long legal fight, the California 4th District Court of Appeal sided with the commission on the 60-foot mandate. The September decision also upheld that the couple must waive the right to a future sea wall and remove threatened parts of the home if the bluff erodes to within 10 feet of the house.
The decision is echoing in Southern California.
Gary and Bella Martin want to build a new house atop an open Encinitas bluff, about three blocks from the Lindstrom property. The commission imposed a 79-foot setback, prohibited a basement and required the couple to waive the right to a future sea wall.
The Martins sued and prevailed in San Diego Superior Court in August. But the Coastal Commission, shortly after winning the Lindstrom case, appealed, and court briefings start soon.
"This is an issue that's going to be faced time and time again, especially in the southern areas of the state where a lot of the development is right up to the edge of those bluffs," said Molly Melius, manager of the Environmental and Natural Resources Law and Policy Program at Stanford Law School.
Court fights could trigger different decisions in other appellate districts, she said, but as future cases come up, "there are going to be really hard trade-offs."
It takes place as the commission urges coastal cities to prepare for inevitable sea-level rise. Seas could rise 5.8 feet to 7 feet by the turn of the century, according to a report from the California Ocean Protection Council.
Higher waters put California's iconic beaches in peril. The California Fourth Climate Change Assessment predicted in 2018 that one-third to two-thirds of California's beaches will disappear by 2100 "without large-scale human interventions."
The Coastal Commission requires homes to be built so they're secure for 75 years without relying on sea walls, which can hasten the disappearance of beaches by preventing them from moving landward as seas rise. There was a flurry of wall building in the 1970s and '80s.
"One of the roles of government is to ensure structures and people are safe," Coastal Commission spokeswoman Noaki Schwartz said in an email.
It's part of the commission's duty "to ensure that new development minimizes risks to life and property in areas of high geologic hazard," she added. "California's blufftop, ocean-fronting lots are generally areas of increased geological instability, and this is especially true in the era of sea level rise."
However, Schwartz said, determining setbacks for developments is done "on a case by case basis ... there is no one size fits all approach."
A step toward managed retreat?
Beach cliffs are vulnerable in Southern California because of looser rock in the bluffs. Sea-level rise erodes cliffs from the bottom and makes them steeper. Add severe storms, runoff from residents watering lawns or people walking nearby, and large sections of rock can give way.
Last summer, a chunk of bluff in Encinitas crashed to the shore and killed three people on the beach. In nearby Del Mar, part of a bluff crumbled during Thanksgiving rains, leaving less than a foot of land between railroad tracks and a sheer drop (Climatewire, Dec. 2, 2019).
Lindstrom, the property owner, believes he was a "test" case for the California Coastal Commission because it wants to limit construction on cliffs. In both the Lindstrom and Martin cases, the state agency overruled the city of Encinitas, which gave the owners permissions to build their homes 40 feet back from the cliff.
"It's managed retreat," Lindstrom said, referring to climate adaptation policies that plan for removal of coastal homes.
In the Martin case, which is still in court, the commission's requirement would leave enough room on the property for a 1,000-square-foot house, according to Paul Beard, the Martins' lawyer. The couple want to build a 3,110-square-foot house plus a basement and garage.
Beard called the demand for larger setbacks "a new interpretation that overrides a long-standing interpretation of the city."
In California, many coastal cities are empowered to make permitting decisions for construction. But any two members of the state commission can appeal and bring a case before the agency.
At the 2016 Coastal Commission hearing on the Lindstrom case, some commissioners questioned whether the agency was changing its policy on setbacks. Then-Commissioner Martha McClure said the commission's requirements needed to be clear so homebuilders wouldn't be surprised.
"We have to have a policy that's been adopted and planned," McClure said.
Commission Executive Director Jack Ainsworth said at the hearing, "that's what we're trying to do in this case is set up that process."
But he said it wasn't a policy change.
In the Lindstrom case, the city required putting the house 40 feet back. Then the commission added another 20 feet. The commission's analyses, which look at sea-level rise and accelerated erosion, differ in every case, Ainsworth said.
"It's not evolution of policy. It's evolution of the analysis, and different factors and assumptions that go into the formula," Ainsworth said. That's needed with "the uncertainty of sea-level rise."
The Lindstroms opted against appealing to the California Supreme Court because of the added legal fees. They own the house on one side of their open lot. Now they're debating whether to sell the nearly 6,800-square foot empty parcel, which they bought in 2012.
No guidance on setbacks
The question of where it's safe to build with sea-level rise is popping up in other California coastal areas, said David Revell of Revell Coastal, which has analyzed the flood risk of nearly 20 cities and counties.
City planners typically want bigger setbacks when drafting adaptation guidelines, he said, but the politics are sticky. When the proposals go before elected city councils, "dialogues often get really heated" and draft policies can get softened, he said.
For years, cliff-top setbacks were determined by looking at historical erosion rates. That's no longer adequate, Revell said. He advises planners to look at how sea-level rise accelerates erosion, then add a potential bluff failure, such as a 10-foot section of cliff dropping to the shore.
The California coast tends to collapse in chunks, followed by several years without much erosion, explained Gary Griggs, a coastal expert at the University of California, Santa Cruz. That's why citing average erosion over several decades doesn't offer the full picture, he said.
Right now there's no state policy or guidance for determining setbacks that include sea-level rise impacts, said Melissa Hetrick, project planner for the city of Santa Barbara.
Local governments need that help, Hetrick said. It should include "what numbers go into the formula, which amounts of sea-level rise to use, which models to consider, how that model might relate to a specific site," she said.
Santa Barbara formally approved a policy last year that requires inputs about sea-level rise when determining where to put structures. The city uses a U.S. Geological Survey hazard model to identify risky sites. If a property owner wants to build a house there, they have to hire an expert to conduct a site-specific analysis.
"There's definitely a feeling, because we've seen a lot of landslides and erosion along our bluffs, that it's in nobody's interest to have a lot of stuff on the bluff," Hetrick said. "It eventually ends up on the beach below."