>"No one need be concerned about us ordering a major demolition of historic
>beach landmarks. We are concerned only about the proliferation of trashy
fast
>food operations, tacky art deco hotels, and the like. . . We have an
>opportunity here, and we will vigorously pursue it before the coastline
>changes again."
-- A representative of the California Coastal Zone Commission
Subj: El Nino Coastal Changes Revise Coastal Zone - With a Vengeance
Date: 4/1/98 1:44:28 AM EST
From: [log in to unmask] (Brad Torgan)
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>Return-Path: <[log in to unmask]>
>Date: Tue, 31 Mar 1998 14:38:22 -0600
>From: "Patrick A. Randolph, Jr." <[log in to unmask]>
>Subject: DD 4/1 El Nino Coastal Changes Revise Coastal Zone - With a
Vengeance
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>Comments: Real Estate Lawyers Discussion Group
>
>Daily Development for
>Wednesday, April 1, 1998
>
>by: Patrick A. Randolph, Jr.
>Professor of Law
>UMKC School of Law
>[log in to unmask]
>
>Readers are urged to respond, comment, and argue with the daily development
or
>the editor's comments about it.
>
>ZONING AND LAND USE; COASTAL ZONE PROTECTION; JURISDICTION: Coastal Zone
>Commission's extension of its authority to properties within 1000 feet of
>newly created "coastline" following El Nino related erosion is valid and
>not a
>taking, even as applied to properties developed prior to such change in the
>coastline.
>
>Frolic v. McDonald's Restaurant 666, Inc., 333 Cal. Rptr. 3d 999 (Cal. App.
>1998)
>
>Plaintiff owned and operated a McDonald's Restaurant at a location just
>east of
>the Pacific Coast Highway. Prior to recent developments, this location was
>more than 1000 feet from the public ownership portion of the California
>coastline and outside the jurisdictional limits of California's Coastal Zone
>Commission as provided in California's Coastal Zone Management Act. During
El
>Nino related storms, however, there was substantial erosion of the
>coastline in
>the area of the restaurant, and a portion of the McDonald's parking lot now
>lies within 1000 feet of the eroded cliffs that now define the limits of the
>beach area.
>
>The California Coastal Zone Commission, aware that the Plaintiff also owned
>other properties on the coastline side of Pacific Coast Highway at that
point,
>issued a "show cause" order requiring that the owner produce a permit to
>continue operations.
>
>The landowner refused to comply with the requirement and brought an action
for
>a judicial decree that the Commission lacked jurisdiction to regulate the use
>of the property because (a) it was outside the Coastal Zone; and (b) in any
>event, its rights to operate had "vested" when it put its property to use at
a
>time that the property was farther away from the coastline than it now is.
>
>In affidavits filed with the court proceeding, the landowner alleged that
>Commission employees had stated that the Commission was likely to find that
>the
>McDonald's store constituted a "visual blight" impeding the public view of
the
>coastline, and to refuse to grant an operating permit, unless the landowner
>agreed to grant open space easements over the landowner's other properties on
>the west side of the Pacific Coast Highway.
>
>The trial court issued an order staying the actions of the Commission, and
the
>Commission brought an accelerated appeal under the Costal Zone Management Act
>to the Court of Appeals.
>
>Held: Reversed: The Coastal Zone Commission has the authority to require a
>permit for McDonalds to operate, has discretion to determine that the
>restaurant constitutes a visual blight, and the Commission's action, should
it
>exercise such discretion, would not constitute a taking.
>
>As to allegations that the landowner had a Constitutionally vested right to
>continue operations, and that shutting down the store would deprive the
>landowner of "investment backed expectations" in violation of the Due Process
>Clause, the court indicated that "anyone investing in property near the
>California shore knows that beach property is subject to erosion."
>Consequently, landowners are on notice of the possibility that the
>jurisdictional area of the Coastal Zone Commission may shift over time. The
>"vital interests of the community" in preserving the visual beauty of the
>California Coastline justify the Commission taking such severe steps as
>terminating uses that are inconsistent with that goal, even if those uses
were
>undertaken prior to a shift in the shoreline.
>
>The Court commented that "the Constitution provides no guarantee to sell
>hamburgers in the middle of a park, and California has declared its coastline
>to be a park. Any business activities therein are subject to public control
>and prohibition."
>
>Comment: In a study commissioned by McDonald's and filed with the court, an
>consulting firm estimated that, due to recent changes in the coastline caused
>by erosion, more than 300 square miles of property along the California coast
>have become subjected to the reach of the Commission. The study estimated
>improvements of such properties to have a market value is excess of $50
>billion.
>
>The study further pointed out that changes in the coastline in North
Carolina,
>South Carolina and Florida due to recent shifts in coastline have brought
more
>than 500 square miles of properties in those states within the reach of their
>coastline protection acts.
>
>A representative of the Coastal Zone Commission stated, following the ruling:
>"No one need be concerned about us ordering a major demolition of historic
>beach landmarks. We are concerned only about the proliferation of trashy
fast
>food operations, tacky art deco hotels, and the like. . . We have an
>opportunity here, and we will vigorously pursue it before the coastline
>changes
>again."
>
>Items in the Daily Development section generally are extracted from the
>Quarterly Report on Developments in Real Estate Law, published by the ABA
>Section on Real Property, Probate & Trust Law. Subscriptions to the
Quarterly
>Report are available to Section members only. The cost is nominal. This
>particular report, however, is an April Fool's Day Spoof, and should not be
>taken seriously. For the last six years, these Reports have been collated,
>updated, indexed and bound into an Annual Survey of Developments in Real
>Estate Law, volumes 16, published by the ABA Press. The Annual Survey
volumes
>are available for sale to the public. For the Report or the Survey, contact
>Stacy Woodward at the ABA. (312) 988 5260 or [log in to unmask]
>
>Items reported here and in the ABA publications are for general information
>purposes only and should not be relied upon in the course of representation
or
>in the forming of decisions in legal matters. The same is true of all
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>opinions expressed are the sole responsibility of the DIRT editor and are
>in no
>sense the publication of the ABA.
>
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