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  The American Surveyor     

Victory in Burke v. California Coastal Commission Print E-mail
Written by Michael Pallamary   
Friday, 02 January 2009

December 01, 2008 - Today, the California Court of Appeal held, in a published opinion, that the California Coastal Commission lacked jurisdiction to deny a permit for a bluff boundary and safety fence erected long ago at the bottom of the bluffs at Torrance Beach. The fence was originally built at the base of the bluffs after several people died while trying to climb the unstable bluff faces. In 1988, the property owners entered into a settlement with the State under which the owners agreed to grant the public use of the sandy area at the toe of the bluff in return for the right to keep the fence to mark a new boundary between private and public property. Although the Fence had been in existence before the Coastal Commission was created, it never objected to the fence until 2005, at which time it demanded the owners apply for a permit. When they did, the Commission denied the permit. In today's opinion, the Court of Appeals held that the Commission never had jurisdiction to demand or deny a permit application because the fence was an integral part of the 1988 Settlement between the State and property owners and therefore outside the Commission's control.

Pallamary footnote:
Fifth Amendment, United States Constitution:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

A 39Kb PDF of the decision can be found HERE

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