Edge/et al. Sue Coastal Commission over the Denial of His/Their Permits

• Lawsuits Argue Action Was a Taking Not an Ownership Issue

BY BILL KOENEKER

Four property owners, including David Evans better known as the Edge, a guitarist in the rock band U2, filed  lawsuits last week challenging the California Coastal Commission's decision turning down the four home subdivision planned high in the hills above Sweetwater Mesa.

The coastal agency on June 16 turned down the plans for the four adjacent homes. One application was withdrawn before the vote and is not involved in the lawsuits.

The commission majority, during deliberations, said the scale of the mansions planned for the steep hilly sites were too large.

However, a press release issued by Fiona Hutton and Associates, a public relations firm that says it speaks for the partners, focuses primarily on one aspect of some of the commissioner's deliberations.

The coastal commission staff suspected the project was one instead of four or five separate applications and appeared to have attempted to sway the panelists (see commission staff report) into believing that the Edge had control over the four or five separate applications and urged the commissioners to deny the applications on what Hutton calls an "unprecedented and unsubstantial legal theory so that it could evade the constitutional prohibition on the taking of property without just compensation."

Hutton notes that in the five months before the commission's vote, the CCC staff applied this "unity of ownership" theory and urged the commissioners to deny the project on those grounds.

"On the basis of this 'unity of ownership' theory, the Coastal Commission voted 8-4 to reject the four property owners' coastal development permit applications," Hutton wrote in her press release.

That is also apparently the thrust of the lawsuits. Hutton quotes from one of them, "No California court has every held that the commission or any other instrument of government may aggregate separate ownerships of adjacent land in order to evade a  constitutional mandate. The commission's theory is contrary to well established California law that exists to advance the important public policy of assuring certainty of property ownership."

However, commissioners, who voted against approval, seemed to have side-stepped the issue, saying it was going to be up to the courts to decide such a theory.

There were several commissioners, who talked at length about the "unity of ownership" theory. However, most of them, except for the Chair, were opposed to the idea and voted to approve the applications.

The majority of the commission, according to the videotape of the commission hearing, voted to deny the applications based on the size of the structures and the infrastructure needed to support them. They claimed that houses could be built on the sites, just not the large sizes that the applicants wanted where they wanted them.

Hutton indicates that if the applicants prevail in court, the property owners could return to the Coastal Commission to ask it to review each home plan separately.

Hutton and the property owners argue even the sizes of the homes should not be an issue.

"The proposed homes would have a small 'footprint' with each house occupying approximately 1 percent of the property owner's lands. To protect public views, portions of the proposed homes would be underground and none would be taller than 28 feet—well below the 35-foot county building code maximum," the press release states.

Commissioners talked about that but in the context of the road required to gain access to the houses and the amounts of land that would have to be cleared for grading and for fire protection plus the service road needed for the waterline to connect homes to a potable water supply.

Even though four or five separate homes are being planned, the size of the infrastructure is problematic, according to some panelists. The infrastructure, as one commissioner argued, would be needed whether one home or five were built on the vacant hilly parcels far from any other homes or services.