California Coastal Commission Has No Jurisdiction Over A Fence Authorized By A Boundary Settlement With The State Lands Commission

In Burke v. California Coastal Commission, (— Cal.Rptr.3d —, Cal.App. 2 Dist., Dec. 1, 2008), a California Court of Appeal considered a property owner’s challenge to a California Coastal Commission denial of his request for a permit to replace a fence along a boundary between his property and public access to a state beach. The court ruled that because the boundary was the result of an agreement by the State Lands Commission to separate private from public land, and because the fence was not a “development” within the purview of the Coastal Commission, the Coastal Commission had no jurisdiction to prohibit the fence along the boundary.


Martin Burke owned property atop a bluff that dropped steeply to a state beach. His property included the bluff and a portion of the most landward part of the sandy beach. In 1988, Burke and neighboring property owners negotiated with the State Lands Commission to allow for public access to the beach area of their property, and to build a fence at the bottom of the bluff to keep beachgoers from ascending the bluff and approaching their homes.

By 2005, the fence had fallen into disrepair and Burke and other property owners sought to repair and replace it. The Coastal Commission informed Burke that he would require a coastal development permit, and Burke applied. In 2006, the Coastal Commission denied Burke’s permit finding the fence detracted from the aesthetic value of the beach.

Burke filed suit, asserting that the Coastal Commission had no jurisdiction to deny a permit for a fence that was part of an earlier agreement with the State Lands Commission. The trial court ruled for the Coastal Commission, and Burke appealed.


The Coastal Act gives the Coastal Commission jurisdiction over any “development” in the coastal zone. It further provides, in Section 30416(c), that “Boundary settlements between the State Lands Commission and other parties and any exchanges of land in connection therewith shall not be a development within the meaning of this division.”

The record showed that the construction of the fence was a key element of the 1988 agreement between property owners and the State Lands Commission to settle the boundary between private landowners and the state beach. With Section 30416(c), the Legislature specifically carved out an exemption from the Coastal Commission’s jurisdiction for such boundary settlements.

The Coastal Commission’s argument that the fence was not part of the boundary settlement because it did not sit on the actual property boundary was of no consequence, the court found, as the actual property boundary is the mean high tide line which is ambulatory rather than fixed. The fence marked the boundary of public access to the beach and the property owner’s exclusive access to their property and was an integral part of the State Lands Commission’s boundary settlement. “A physical boundary marker that is part of a boundary settlement executed by the State Lands Commission is exempt from Coastal Commission oversight because it is not a ‘development,'” within the meaning of the Coastal Act, the court concluded.

The trial court’s judgment was reversed, the trial court was directed to vacate the Coastal Commission’s denial of the permit to build the fence, and was further directed to enter judgment that the Coastal Commission lacks jurisdiction over the fence because of the 1988 boundary agreement.


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