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Corona del Mar beachside barbecue and palapa must go, court rules [Updated]

A Corona del Mar couple must remove their barbecue, storage shed and thatched-roof palapa from a sandy area adjacent to a public beach, three Orange County appeals court judges have ruled, upholding the state Coastal Commission’s insistence that it was an illegal development.

The opinion, released Wednesday, was a defeat to retirees George and Sharlee McNamee’s decade-long crusade against the state agency.

The couple claimed that their property rights were under assault when the state in 2004 demanded that they tear out the amenities from the beach portion of their property, down a long staircase from their bluff-top home and next to Corona del Mar State Beach. It included an outdoor shower, picnic tables, benches and a flower garden.

The state agency has maintained that the 1976 Coastal Act gives it the power to regulate the use of shore-front property, public or private, to protect the environment and ensure public access.

“It is visually obvious that the Commission’s decision was reasonable,” Judge David G. Sills wrote in a seven-page opinion, which includes a file photograph of the improvements (pictured above), calling them “sheer bulky clutter” with “plain unsightliness.”

The ruling cited provisions of the Coastal Act that allows the state to consider the scenic and visual qualities of the coast, including ocean views, when approving developments, saying there was “substantial evidence of the ‘visual impact’ of the McNamees’ shed (and storage lockers and barbecue).”

Paul Beard, an attorney for the property rights group Pacific Legal Foundation that represents the McNamees, vowed Thursday to appeal the case to the state Supreme Court.

“The decision effectively grants the Coastal Commission unprecedented discretion to control how an individual uses and enjoys his private property on an utterly subjective basis: aesthetics,” he said.

Coastal Commission attorney Jamee Patterson said the lengthy ordeal over what is essentially a picnic site had been overblown; the unpublished opinion has no bearing on other cases.

“The commission didn't authorize any development on the sandy beach portion of their property," Patterson said. "But it appeared they can continue to use their property for picnics and barbecues. They just need to take their things back up the stairs.”

[For the record, 3:21 p.m. March 6: A previous version of this post identified Judge David G. Sills as P.J. Sills. P.J. is an abbreviation for presiding justice.]

--Tony Barboza

Photo: California Coastal Commission

Comments () | Archives (14)

Oh, and off we go to the Supreme Court. Enough already! The Appeals Court is right - that stuff is ugly. Get rid of it.

Anyone who has ever been to this beach can attest to the fact that this is NOT in his backyard as reported, but on the beach which is public. Why should one person be able to take over public beach for his own private use? Perhaps this reporter should more accurately investigate his facts.

1) I believe that the McNamees' property - and their property rights - extends to the mean high tide line. The palapa would seem to be above that point, and therefore not on public property, although William may be right.

2) The Coastal Commission does not seem to object to their use of the property for picnics and barbecues, only the way it looks like. Any architect will tell you that a property's visual and aesthetic character is a spiritual - and therefore religious - quality. The Coastal Commission's ruling would seem to violate the McNamee's rights to equal protection under the 14th Amendment and their First amendment rights to freedom of belief.

Pacific Legal, do you grok this? If not, reply here and I'll get back to you.

Lorelei, I'm sure if you were on America's Next Top Model, plenty of people would have something to call you ugly over, too.

Perhaps the best way to handle this would be for the Coastal Commission to condemn the property up to the bluff's edge.

Architect - you're full of wisdom aren't you, calling people ugly right after you claim aesthetics is a spiritual and religious quality. It's not a temple or place of worship; it's a thatched roof shelter for picnics - even you admit that. 1st and 14th amendment? Surely even you don't believe that.

You know what else? It's not about their property line. It may or it may not be on their property, but the point is that the Coastal Commission doesn't allow development on the sand. That thing sure looks like a permanent structure to me, especially if it's been litigated for a decade. The regulation is similar to a city that require a setback, for example: it may be your property, but you can't build a wall over 3 feet unless it's set back at least 20 feet from the sidewalk.

Feeling entitled? What an eyesore!

The Communist Coast Commission needs to remember they serve EVERYONE, not just noismakers from the left. When did State Government become a nest for tenured radicals?
The opinion is in error. In fact, if natural landscaping obscured the view of the familys' personal belongings, the ruling is completely invalidated.

Permanent structures do not belong on land that is naturally within the public domain. The aesthetic value of what the property owners' above have built on the beach is not relevant. While I personally think the appearance of these structures to be hideous, the real issue is the entitlement of the wealthy to what belongs to the public. Why can't the McNamees just be content with easy access to the beach? They can hire someone to haul their party supplies down the long flight of stairs.

It is certainly within the rights of the Pacific Legal Foundation - a group of conservative wealthy white men - to take this issue to the state Supreme Court. However, this case appears to be more about power and privilege than about the rights of an individual.

Clearly, 'Architect' is expressing an opinion that affects his self interest: 'I want the opportunity to provide more design services for these privileged coastal residents. They are my client base.' Shame on you for such pandering!

Fascism plain and simple

To correct some of the misinformation:

First, the McNamees' belongings are entirely on their own private property. Entirely. The Commission did not dispute this.

Second, the Commission does not have special regulatory powers to control use and enjoyment of private sandy beach. The Commission decided the belongings had to go on the basis that they were out of character with the area (never mind everyone else's developments and improvements, and never mind the State's 500-parking-space concrete lot just 500 feet away, with concession stands, picnic tables and benches. The Commission also said the belongings discourage use of the public beach. How so? They are all on private property.

This is just a power grab on the part of the COmmission. If the State can tell this couple what they can put in their own backyard based on these bogus grounds, is there anything the State cannot do to us?

Really? It's on their property? Can you point out to me where in that photograph the property line lies? Or do you need a tape measure to find it?

Nobody should be allowed to own any part of the beach. Period. If it wasn't for the Coastal Commission, we'd all live in a world where the "haves" would be able to fence off this place, not just build personal storage facilities and palapas.

Better get a dictionary, because I do not think the word 'fascist' means what you think it means.

No building permit!...Few places let you put in plumbing, electricity and structural improvements to property with out permits and inspections.

Getting building permits means that your neighbors need to sign off on the proposed improvements also.

These peoples could not be bothered with permits (a general disregard for municipal building code authority and/or they do not get along with their neighbors) , but now they have lots of money for lawyers.

Sorry, follow the rules and stop wasting taxpayer money in silly lawsuits.

The Costal Act is a law originally set in place by a referendum by the people of the state and ammended by the legislature. The Costal Commission has the obligastion to enforce the law. The McNamees appealed the Costal Commissions enforcement act to the trial and appeals court. Both courts found the Costal Commission acted correctly.

Both parties, the Commisssion and the McNamees agreed the improvements were on private property. Both parties agreed the improvements were built after the Costal Act was passed.
Both parties agreed the improvements were built without a permit.
1. McNamee argued that a permit was not necessary because the statute of limitations on obtaining a permit had run. Both courts disagreed.
2. McNamee argued that the costal act did not provide for regulations of the view from the beach towards the bluff. Both courts disagree citing case law and the language of the act.
3. When it became apparent that the Costal Commission was going to seek a court order to remove the improvemts, the McNamees applied for a permit from the Commission. The application was for the improvements in an "as is condition". McNamee argued that appearence of the improvements meet the reqwuirments of the costal act and should be approved. Both courts found that McNamee did not meet the legal standard necessasry to overturn the conclusion of the commission regarding the appearence of the improvements. As a matter of law, the legal standard required to get the court to overturn the conclusion of any state commission over this type of somewhat subjective decision is very difficult to meet. There is a great body of case law where courts have deferred to state commissions.Also if courts routinely become involved in these types of determinations they would be overwealmed with cases.
4. Although not directly referenced in the opinion, the courts recognize a legal tenant that use or enjoyment of a common public area (such as the beach)can be substantially adversly affected by a small enchrouchment by all of the propertys surrounding the common area. Therefore the court will generally consider that if the commission allows these improvements on McNamee property, it must allow them on all property adjoining the beach and this will have a substantial adverse impact which is not permitted by the costal act.
5. The Commission only denied the permit as presented. It did not argue that the McNamees could not even apply for a permit. The McNamees permit application was for the improvemtns as built. They did not make much effort to come up with a design solution which would mitigate the view of the improvements from the beach. It would be far less expensive to engage an architect to produce a plan which would satisfy the costal commission and modify the improvements than to go to the US Supreme Court.

And yet, just south, there is no public access whatsoever to Irvine Cove, Emerald Bay and Three Arch Bay. I work in these places and I can tell you that the residents genuinely believe that their beaches are entirely private.

@Non-Architect: You missed my point about ugly. That point is that everyone is entitled to their own opinion about what qualifies as 'ugly.' And Yes, I absolutely do believe that. Your argument is that its beauty depends on its use, in which case the very same palapa would look more beautiful it it were used, say, for prayers. There are a lot of mini-mall storefronts used for religious purposes, too. Would you call them ugly? Maybe, maybe not. Point is that the decision should be up to the guy who owns the property.

@ Landscape Architect - You misunderstand me also. I am not pandering for design services. To the contrary, I support the rights of *all* property owners to be free from aesthetic regulations. They should not have to hire anyone to 'beautify' their property by hiring either architects or landscape architects, who are basically licensed priests. If I am pandering, it is to help property owners who are routinely held ransom by the pompous blowhards in the American Institute of Architects, by force of law and the Coastal Commission. Got that?

@Steve - While the courts do not like getting involved in this type of dispute, the question would have to be "Why not?" Small Claims Courts deal with $50 disputes. The answer should be clear. If it isn't the court's business, it isn't the governing agency's business, either.

@ Pacific Legal - Alternately, a proper process might involve a) applying for and obtaining a permit that 'mitigates' the 'ugly' and then b) requesting a change back to the original 'ugly'. Then you would seem to have something to dispute, and you'd have a financial claim to argue equal protection. The owners of Penn Central (v. New York, 1972) never went through the motion of redesigning the office tower in the Beaux-Arts style, so they ended up arguing the wrong case. Which is why your client is where he is today. That's a very interesting study in a major Supreme Court screw-up, and should be read and studied for its errors.


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