The decision for the removal of a BBQ, small water closet, and storage lockers from a section of private property along the coast was upheld in the COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE on March 3rd 2010.
A little background. The McNamee’s purchased a home along Ocean Avenue in Orange County in 1978. At the bottom of their private property adjacent to the beach, there was a storage shed, picnic table, a sand wash-off shower, a BBQ, and a some shelving for storage at the time of purchase. In the 80s, they completely remodeled the home and then in the 90s they renovated the amenities next to the beach. It wasn’t until 2000 that the city of Newport Beach received a complaint. The city passed this complaint to the California Coastal Commission.
The Commission was formed to protect the “Overall Visual Quality” of the coast, as noted in Section 30251 “The scenic and visual qualities of coastal areas shall be . . . considered and protected as a resource of public importance. Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas . . . .” (Italics added.) Basically, the amenities at the bottom of the McNamee’s stairs were not permitted along the beach, according to the Commission.
Define: In 1978 when they purchased the home, there clearly was amenities within their property line.
Defend: In the last 4-5 years, they have been fighting to defend their property right of the amenities.
Divest: The amenities can be taken away.
Given the recent decision of the appellate, the McNamee’s are left to two decisions. 1. Further appeal to the California Supreme Court or 2. Accept the court’s decision and remove the amenities for the public good. What does this do to future property rights?
http://www.courtinfo.ca.gov/opinions/nonpub/G041389.PDF
http://www.foxnews.com/politics/2010/03/03/california-man-fighting-backyard
March 11th, 2010 at 12:48 am
In essence this is an externality problem deriving from a conflict between private property and the public good. I see this situation as a slippery slide concerning the extent to which public good has power over the bundle of rights of private property owners. I don’t want to see private property law suits based on the subjective aesthetic opinion of some government organization’s ambiguous definition of “scenic and visual qualities.” Especially since the Mcnamee’s subjective aesthetic opinion of their own private property is that it looks just fine.
Sara Christie, legislative director for the CCC stated “If you have built something in the coastal zone without getting a permit either from your local government or the commission, you’ve broken the law.” By stating this she is implying the the Mcnamee’s private property is incorporated within the coastal zone under jurisdiction of the CCC. What is the coastal zone? From some of the picture’s I see on the Fox news website, it would be hard to determine exactly what the coastal zone is. Also, from my subjective view, there are a lot more ugly things to worry about that might be considered within the coastal zone, especially a shed and a BBQ.
The main problem is ambiguity and subjectivity defining the rights of the CCC and the geographic region of the coastal zone. If these were clearly defined, I believe any potential conflict would be easily appeased. As for the future of private property, it seems that there needs to be more specific definitions of the sticks a private property owner carries in his bundle. Also, particularly relating to this case, government needs to be more specific concerning what rights they reserve for themselves.
Then again, if the Mcnamee family would have simply given the $250,000 dollars used to fight the lawsuit directly to the California Coastal Commission to settle the disagreement, both sides of the party probably would be satisfied. We all know California could use the money.
March 12th, 2010 at 1:45 pm
This also seems to lend to our discussion on takings and eminent domain. If the government can devalue the property by removing items, or force the McNamee family to spend money to remove something on private property, it can be considered a governmental taking. While the supreme court may have said that unless the government takes 100% of the value of the house it is not under the takings clause, the government is still taking private property and deciding what can and what can not be done on it. After all, the government has just said that that area can not be used for what the McNamee’s want because it would hurt the visual aspect which the public enjoys. This is just a sneaky case of eminent domain. The only thing that I can think to do in order to curb the behavior of the government in situations like this is to somehow get a very strict definition of taking and eminent domain. Though, I do agree with Tyson. Just pay off the California government, make it a private transaction, and the problem would probably go away…
March 20th, 2010 at 1:35 pm
I am also a bit leery of the ambiguous definition of “scenic and visual qualities,” especially in this case where the government is claiming that there is a public interest in preserving how the coastline looks. Is there really a definition of what is “scenic” and what is not? If there is, should it be the government, the courts, or the people deciding what is scenic? What happens if the public perception of what is scenic changes? I think the root of the problem is that the law is vague, and does not specify who is to determine what exactly is scenic, and unless that role is defined, it is hard to determine what the efficient solution is.