On October 17, 2018, in Beach and Bluff Conservancy v. City of Solana Beach, __ Cal.App.5th __ (2018) (Case No. D072304), the Fourth District Court of Appeal ruled against a coastal property owner’s group in its facial challenge to amendments to the City of Solana Beach’s Local Coastal Program Land Use Plan.  The amendments adopted policies encouraging greater public access and restricting the use of seawalls and other shoreline protection devices.


In a suit for declaratory relief and traditional mandamus under Code of Civil Procedure section 1085, the group challenged seven policies of the City’s amended LUP as facially inconsistent with the California Coastal Act and/or facially unconstitutional.  The trial court granted the group’s motion and petition for writ of mandate regarding two of the challenged policies and denied the motion and petition regarding the other five challenged policies.

On appeal, the group challenged the first three of the following five policies as inconsistent with the Coastal Act, the fourth on the ground it violates the “unconstitutional conditions” doctrine, and the fifth on the ground it violates both the Act and the constitution:

  • Policy 2.60 – restrict the right of blufftop property owners to repair existing private beach stairways and prohibit construction of new stairways.
  • Policy 4.22 – prohibit bluff retention devices for the sole purpose of protecting an accessory structure.
  • Policy 4.43 – provide that a permit for a bluff retention device will expire when an existing blufftop structure requiring protection is redeveloped, is no longer present, or no longer requires protection.
  • Policy 4.19 – provide that new shoreline or bluff protective devices, such as seawalls, that alter natural landforms shall not be permitted to protect new development. As a condition for a permit for new blufftop development or redevelopment, the policy requires a property owner to record a deed restriction waiving any future right to construct new bluff retention devices.
  • Policy 2.60.5 – require conversion of a private beach stairway to a public accessway “where feasible and where public access can reasonably be provided” when the property owner applies for a coastal development permit to replace more than 50 percent of the stairway.

Administrative vs. Traditional Mandamus

In response, the City contended that under the Coastal Act the group’s exclusive remedy for its challenges was an action for administrative mandamus under Code of Civil Procedure section 1094.5 rather than traditional mandamus under section 1085.  Administrative mandamus under section 1094.5 applies to quasi-judicial decisions that involve the application of a rule to a specific set of facts, whereas traditional mandamus under section 1085 applies to quasi-legislative decisions that involve the formulation of a rule to be applied to all future cases.

Because the Commission acts in a quasi-judicial capacity when it reviews and decides whether to certify a local government’s LUP—the Commission’s review of an LUP is limited, by statute, to its administrative determination that the plan does, or does not, conform with the requirements of the Coastal Act—the Court of Appeal agreed with the City and concluded the group’s sole remedy to challenge the amended LUP was to file a petition for writ of administrative mandate under section 1094.5, notwithstanding the fact the City acted legislatively when it enacted the policies at issue. The Court thus held that the group’s challenge to policies 2.60, 2.60.5, 4.22, and 4.53, on the ground they are inconsistent with the Coastal Act, were barred by the failure to file a timely writ petition under section 1094.5.

“Unconstitutional Conditions” Doctrine

The Court then held that the group’s challenges to policies 2.60.5 and 4.19 under the “unconstitutional conditions” doctrine fail on the merits.  The group contended Policy 2.60.5 is unconstitutional because it exacts private property for public use without compensation as a condition of a permit.  According to the group, repairing or replacing existing stairways creates no new burden on public access that could justify depriving private owners the right to exclude the public without compensation.  And the group contended the waiver condition imposed by Policy 4.19 is an unconstitutional exaction because there is no logical connection or nexus between the waiver requirement and any identified adverse public impact of new development.

The doctrine of unconstitutional conditions limits the government’s power to require one to surrender a constitutional right in exchange for a discretionary benefit.  In the takings context, under Nollan and Dolan, the U.S. Supreme Court has held the government may impose such a condition only when the government demonstrates there is an “essential nexus” and “rough proportionality” between the required dedication and the projected impact of the proposed land use.  A predicate for any unconstitutional conditions claim is that the government could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure that person into doing.

To date, under settled U.S. Supreme Court and California Supreme Court case law, the two-part Nollan and Dolan test developed for use in land exaction takings litigation applies only in the case of individual adjudicative permit approval decisions, not to generally applicable legislative general zoning decisions.  Thus, the Court held that the unconstitutional conditions doctrine does not apply to facial challenges such as those raised by the Beach and Bluff Conservancy.

The Court reasoned that Policy 2.60.5’s permit condition requiring conversion of a private stairway to a public accessway cannot be deemed on its face to conflict with constitutional principles in general or in the great majority of cases because it does not inevitably require a property owner to convert a private stairway to a public stairway when the owner replaces or repairs the stairway.  Whether the policy effects an exaction or physical invasion of private property for which the City must pay just compensation under Nollan and Dolan can be determined only on a case-by-case basis as individual property owners subject to the policy’s permit condition apply for permits to repair or replace their beach stairways.

Finally, the Court reasoned that Policy 4.19 does not inevitably pose a present and total conflict with the constitution because the group has a “heavy burden” to show the LUP amendment is unconstitutional in all or most cases and cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise regarding the particular application of the amendment.  The Court also reasoned that the condition requiring a property owner to waive the right to new or additional bluff retention devices does not constitute a physical invasion of property or deprive blufftop property owners of all economically viable use of their properties.  Finally, the Court noted that the unconstitutional conditions doctrine does not apply where the government simply restricts the use of property without demanding the conveyance of some identifiable protected property interest (i.e., a dedication of property or the payment of money) as a condition of approval.


Beach and Bluff Conservancy shows the importance of timely filing land use challenges under the correct procedures as well as the difficulty in bringing successful facial takings challenges.  The blufftop homeowner group’s constitutional challenges failed because they are not ripe for adjudication until there has been a final, definitive, position regarding how the City will apply the challenged enactment in a given case; only then can it be determined whether a taking under the unconstitutional conditions doctrine has occurred.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.