Lindstrom v. Cal. Coastal Commission ( 2019 )


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  • Filed 9/19/19
    CERTIFIED FOR PUBLICATION
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    JAMES LINDSTROM et al.,                          D074132
    Plaintiffs and Appellants,
    v.                                       (Super. Ct. No. 37-2016-00026574-
    CU-WM-NC)
    CALIFORNIA COASTAL COMMISSION,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County, Ronald F.
    Frazier, Judge. Reversed and remanded with directions.
    Xavier Becerra, Attorney General, Daniel A. Olivas, Assistant Attorney General,
    Jamee Jordan Patterson and Hayley Peterson, Deputy Attorneys General, for Defendant
    and Appellant.
    Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Molly
    Loughney Melius, Thomas Miller and Annelise Corriveau as Amicus Curiae on behalf of
    Defendant and Appellant.
    The Jon Corn Law Firm, Jonathan C. Corn, Anders T. Aannestad, Arie L.
    Spangler and Lee M. Andelin, for Plaintiffs and Appellants.
    This case concerns an appeal and cross appeal from the trial court's ruling on a
    petition for writ of administrative mandate that James and Karla Lindstrom (the
    Lindstroms) filed against the California Coastal Commission (the Commission)
    challenging certain special conditions that the Commission placed on its approval of the
    Lindstroms' plan to build a house on a vacant oceanfront lot on a bluff in Encinitas. The
    Commission's appeal challenges the trial court's disapproval of the special conditions
    requiring (1) the home to be set back 60 to 62 feet from the edge of the bluff, instead of
    the 40-foot setback approved by the City of Encinitas (the City); and (2) a waiver by the
    Lindstroms of any right to construct a shoreline protective device, such as a seawall, to
    protect the home from damage or destruction from natural hazards at any time in the
    future. The Lindstroms cross-appeal from the trial court's approval of the special
    conditions requiring (1) removal of the home from the parcel if any government agency
    orders that it not be occupied due to a natural hazard; and (2) performance of remediation
    or removal of any threatened portion of the home if a geotechnical report prepared in the
    event the edge of the bluff recedes to within 10 feet of the home concludes that the home
    is unsafe for occupancy.
    On our de novo review of the trial court's decision, we conclude that with one
    exception the Commission's imposition of the special conditions identified by the parties
    was within its discretion. Specifically, the condition requiring removal of the home from
    the parcel if any government agency orders that it not be occupied due to a natural
    2
    hazard, including erosion or a landslide, as currently drafted, is overbroad, unreasonable
    and does not achieve the Commission's stated purpose in drafting it. Therefore, we will
    reverse the judgment and direct the trial court to enter a new judgment ordering the
    Commission to either delete the special condition or to revise it to more narrowly focus
    on its intended purpose.
    I.
    FACTUAL AND PROCEDURAL BACKGROUND
    A.     The Lindstroms' Application to the City for a Coastal Development Permit
    The Lindstroms own a vacant 6,776 square foot lot on an approximate 70 foot-
    high ocean-top bluff in Encinitas north of Moonlight State Beach (the Lot). In December
    2012, the Lindstroms filed with the City an application for a coastal development permit
    to build a two-story 3,553 square foot home with a 1,855 square foot underground
    basement and a 950 square foot garage. The seaward side of the structure would be set
    back 40 feet from the edge of the bluff.
    Coastal development in the City is governed by the City's Local Coastal Program
    (LCP), which was certified by the Commission in the mid-1990s.1 The City's LCP
    requires that permit applications for development in the Coastal Bluff Overlay Zone,
    where the Lot is located, be accompanied by a geotechnical report prepared by "a
    certified engineering geologist." (Encinitas Mun. Code, ch. 30.34, § 30.34.020D.) "The
    1       Although the record does not contain documents reflecting the Commission's
    certification of the City's LCP, the parties agree that it was certified by the Commission
    in 1994 or 1995.
    3
    review/report shall certify that the development proposed will have no adverse [e]ffect on
    the stability of the bluff, will not endanger life or property, and that any proposed
    structure or facility is expected to be reasonably safe from failure and erosion over its
    lifetime without having to propose any shore or bluff stabilization to protect the structure
    in the future." (Encinitas Mun. Code, § 30.34.020D.) The City's LCP lists certain
    aspects of bluff stability that the geotechnical report shall consider.2 It further states that
    "[t]he report shall also express a professional opinion as to whether the project can be
    designed or located so that it will neither be subject to nor contribute to significant
    geologic instability throughout the life span of the project." (Encinitas Mun. Code,
    § 30.34.020D.11, 1st par.)
    2       The City's LCP specifically states, "Each review/report shall consider, describe
    and analyze the following: [¶] 1. Cliff geometry and site topography, extending the
    surveying work beyond the site as needed to depict unusual geomorphic conditions that
    might affect the site. [¶] 2. Historic, current and foreseeable cliffs erosion, including
    investigation or recorded land surveys and tax assessment records in addition to land use
    of historic maps and photographs where available and possible changes in shore
    configuration and sand transport. [¶] 3. Geologic conditions, including soil, sediment and
    rock types and characteristics in addition to structural features, such as bedding, joints
    and faults. [¶] 4. Evidence of past or potential landslide conditions, the implications of
    such conditions for the proposed development, and the potential effects of the
    development on landslide activity. [¶] 5. Impact of construction activity on the stability of
    the site and adjacent area. [¶] 6. Ground and surface water conditions and variations,
    including hydrologic changes caused by the development (e.g., introduction of irrigation
    water to the groundwater system; alterations in surface drainage). [¶] 7. Potential
    erodibility of site and mitigating measures to be used to ensure minimized erosion
    problems during and after construction (i.e., landscaping and drainage design). [¶] 8.
    Effects of marine erosion on sea cliffs and estimated rate of erosion at the base of the
    bluff fronting the subject site based on current and historical data. [¶] 9. Potential effects
    of seismic forces resulting from a maximum credible earthquake. [¶] 10. Any other
    factors that might affect slope stability. [¶] 11. Mitigation measures and alternative
    solutions for any potential impacts." (Encinitas Mun. Code, § 30.34.020D.1-11.)
    4
    As centrally relevant in this case, the City's LCP states, "In addition to the above,
    each geotechnical report shall include identification of the daylight line behind the top of
    the bluff established by a bluff slope failure plane analysis. This slope failure analysis
    shall be performed according to geotechnical engineering standards, and shall: [¶]
    a. Cover all types of slope failure. [¶] b. Demonstrate a safety factor against slope failure
    of 1.5. [¶] c. Address a time period of analysis of 75 years." (Encinitas Mun. Code,
    § 30.34.020D.11, 1st par. a-c.)
    As required by the City's LCP, the Lindstroms submitted a geotechnical report by
    Geotechnical Exploration, Inc. (GEI) as part of their permit application to the City, which
    addressed, among other things, erosion and bluff stability over the next 75 years.
    Addressing the rate of expected erosion, the GEI report opined that the bluff would erode
    a total of approximately 10 feet in 75 years, based on an annual erosion rate of 0.125
    feet.3 Addressing the issue of bluff stability to arrive at a safety factor of 1.5 as required
    by the City's LCP, the GEI report concluded that "the coastal bluff at the site is
    considered grossly stable against deep-seated failures with a setback of 18.3 feet."4 The
    3      The GEI report acknowledged that for other portions of the Encinitas coast, GEI
    had used a historical bluff recession rate of 0.49 feet per year. However, the report
    concluded that a recession rate of 0.49 was not warranted in this case because the bluff at
    issue was "much more stable than other areas to the north" and historical data from 1953
    showed that the bluff at issue had not eroded significantly since that time. If applied
    here, an erosion rate of 0.49 feet per year would result in erosion of 36.75 feet over 75
    years.
    4      The Commission's decision in this case contains a clear explanation of what is
    involved in performing a slope stability analysis to arrive at a safety factor of 1.5.
    "Assessing the stability of slopes against landsliding is undertaken through a quantitative
    5
    GEI report then combined the 10 feet of erosion expected over 75 years with the 18.3 foot
    setback needed to achieve a bluff stability safety factor of 1.5 to arrive at a total setback
    distance of 28.3 feet (rounded to 29 feet) for the construction on the Lot.5 As the City's
    LCP provides that construction on coastal bluffs shall be set back a minimum of 40 feet
    (Encinitas Mun. Code, § 30.34.020B.1),6 the GEI report concluded that based on its
    analysis showing a recommended setback of approximately 29 feet, "a 40-foot foundation
    slope stability analysis. In such an analysis, the forces resisting a potential landslide are
    first determined. These are essentially the strength of the rocks or soils making up the
    bluff. Next, the forces driving a potential landslide are determined. These forces are the
    weight of the rocks as projected along a potential slide surface. The resisting forces are
    divided by the driving forces to determine the 'factor of safety.' A value below 1.0 is
    theoretically impossible, as the slope would have failed already. A value of 1.0 indicates
    that failure is imminent. Factors of safety at increasing values above 1.0 lend increasing
    confidence in the stability of the slope. The industry-standard for new development is a
    factor of safety of 1.5. A slope stability analysis is performed by testing hundreds of
    potential sliding surfaces. The surface with the minimum factor of safety will be the one
    on which failure is most likely to occur. Generally, as one moves back from the top edge
    of a slope, the factor of safety against landsliding increases. Therefore, to establish a safe
    setback for slope stability from the edge of a coastal bluff, one needs to find the distance
    from the bluff edge at which the factor of safety is at least equal to 1.5."
    5      Specifically, the GEI report stated, "Bluff recession rates suggest a minimum
    setback of 10 feet from the bluff edge. We have assigned an additional 18.3 feet to
    accommodate surficial failure from bluff face deterioration. When combined, we would
    recommend a bluff setback of approximately 29 feet." (Italics added.) In later
    correspondence prior to the City's approval of the application, the authors of the GEI
    report made clear that they had combined the factors of erosion over 75 years and the
    required safety factor of 1.5 to arrive at their recommended setback: "We have
    confirmed the appropriate setback distance from the bluff edge with a 1.5 factor of safety
    plus 75 years of estimated erosion. . . . When combined we would recommend a bluff
    setback of 29 feet."
    6      The City's LCP states that, with certain exceptions not applicable here, "no
    principal structure, accessory structure, facility or improvement shall be constructed,
    placed or installed within 40 feet of the top edge of the coastal bluff." (Encinitas Mun.
    Code, § 30.34.020.B.1.)
    6
    setback should allow for a project life of 75 years, without the need for toe-of-bluff
    protection."
    The City's planning commission approved the application on May 2, 2013. As
    part of the approval, the planning commission made findings that the project is consistent
    with the City's LCP. As one of the conditions for the permit, the City required the
    Lindstroms to provide a letter stating that " 'the building as designed could be removed in
    the event of endangerment, and the property owner agreed to participate in any
    comprehensive plan adopted by the City to address coastal bluff recessions and shoreline
    erosion problems in the City.' "7
    B.     The Commission's Consideration of the Appeal
    In June 2013, the City's approval of the Lindstroms' coastal development permit
    was appealed to the Commission by two of the Commission's members.8 As relevant
    here, one ground of the commissioners' appeals was that the City's approval "appears
    inconsistent with the policies of the LCP relating to the requirement that new
    7      This condition was required pursuant to the portion of the City's LCP concerning
    the Coastal Bluff Overlay Zone, which states, "Any new construction shall be specifically
    designed and constructed such that it could be removed in the event of endangerment and
    the property owner shall agree to participate in any comprehensive plan adopted by the
    City to address coastal bluff recession and shoreline erosion problems in the City."
    (Encinitas Mun. Code, § 30.34.020B.1.a.)
    8     The California Coastal Act of 1976 (Pub. Resources Code, § 30000, et seq.) (the
    Coastal Act) provides that for certain types of coastal development permits, the local
    government's decision may be appealed by, among others, any two members of the
    Commission. (Id., §§ 30603, subd. (a), 30625.)
    7
    development be sited in a safe location that will not require shoreline protection in the
    future."
    On May 28, 2013, which was after the City's approval of the permit, but prior to
    the filing of the appeal by the two commissioners, the authors of the GEI report sent a
    letter to the Commission setting forth a revised geotechnical analysis, presumably for
    consideration during the commissioners' decision on whether to file an appeal.9 The GEI
    letter stated that upon review of other materials, the authors concluded that the erosion
    rate of 0.125 per year was in error, and it set forth a revised erosion rate of 0.40 per year,
    for total erosion of 30 feet in 75 years. The GEI letter also revised the bluff stability
    analysis, concluding that a safety factor of 1.5 would be achieved at a setback of 42.25
    feet from the edge (instead of 18.3 feet). GEI explained that if it combined the expected
    erosion of 30 feet over 75 years with the 42.25 foot setback required to achieve a safety
    factor of 1.5, the construction would have to be set back a total of 72.25 feet from the
    edge of the bluff. However, in the letter, GEI proposed an alternative to a bluff failure
    analysis that did not depend on achieving a safety factor of 1.5. Specifically, GEI
    proposed that a bluff stability analysis be based on the "natural angle of repose" of the
    materials making up the bluff. In that analysis, GEI concluded that a "9.7-foot angle of
    repose setback" was required in addition to the 30-foot setback required for the expected
    rate of erosion, for a total setback of 39.7 feet, which was less than the City's minimum
    40-foot setback for bluff top construction.
    9    The letter states it is in response to a discussion with Commission staff members
    on May 9, 2013.
    8
    As the appeal proceeded in the Commission, the Lindstroms decided to obtain a
    different geotechnical report and requested that the Commission delay its decision on the
    appeal while the new report was being prepared. The new geotechnical report, dated
    October 23, 2015, was prepared by TerraCosta Consulting Group (TCG) and signed by
    two authors: a registered civil/geotechnical engineer and a certified engineering
    geologist.10
    The TCG report concluded that the predicted bluff erosion rate was 0.40 per year,
    so that in 75 years the bluff could erode 30 feet. TCG explained that its erosion rate was
    based on "our review of documents and experience along this reach of the coastline,"
    including "our in-house files, along with available published and unpublished
    documents." With respect to the bluff stability analysis, the TCG report concluded that
    the bluff was stable at a safety factor of 1.5 "between 23 and 25 feet from the top of [the]
    bluff."11 However, TRG rejected the approach employed by GEI, in which the amount
    of erosion over 75 years was added to the setback required for a safety factor of 1.5 to
    arrive at the total required setback to ensure the continued stability, over 75 years, of the
    10    The Lindstroms base their current arguments on the content of the TCG report and
    no longer advocate the approach set forth in the GEI report or the GEI letter.
    11      The setback required for a slope stability safety factor of 1.5 ranges between 23
    feet to 25 feet because of slightly differing bluff configurations in the two cross-sections
    examined by TCG.
    9
    structure to be constructed on the bluff.12 Instead, TCG concluded that construction on
    the bluff would be safe at the end of 75 years even if it did not have a safety factor of 1.5
    throughout the entire period:
    "If we were to now assume 30 feet of erosion essentially translating the
    existing coastal bluff profile to 30 feet landward . . . this would mean that in
    75 years, the actual computed factor of safety 1 foot westerly of the 40-foot
    setback would be 1.29, and slightly greater when calculated at the existing
    40-foot set back.
    "In our opinion, the proposed structure will be perfectly safe for at least 75
    years, and will not require a seawall or other bluff stabilization structure
    during this time. Structures are stable as long as the factor of safety is 1.0 or
    greater. A 1.29 factor of safety implies a 29 percent safety margin against
    collapse. It is for this reason that the Coastal Commission does not
    typically approve seawalls unless the factor of safety at the structure is less
    than 1.2 and other instability factors are present. There is no engineering
    reason that a 75-year-old structure near the end of its useful life would be
    required to have a factor of safety in excess of 1.29 in order to be
    considered safe. For this reason, we certify without hesitation that the
    proposed structure will be reasonably safe from failure and erosion over its
    lifetime without having to propose any shore or bluff stabilization to protect
    the proposed structure in the future."
    The Commission heard the appeal on July 13, 2016. The Commission's staff
    geologist Dr. Mark Johnsson made a presentation to the Commission at the hearing.
    Among other things, Johnsson did not take issue with TCG's analysis that a safety factor
    of 1.5 was achieved at a distance of 23 to 25 feet from the edge of the bluff. However,
    Johnsson disputed TCG's erosion rate of 0.40, as he believed "a more appropriate future
    erosion rate for this site is 0.49 feet per year, or 37 feet over 75 years" based on a 1999
    12     Based on the erosion expected over 75 years and the setback required to achieve a
    safety factor of 1.5 as determined in the TCG report, if TCG had taken the approach of
    adding those two figures together, as GEI did, the required setback would be 53 to 55 feet
    from the edge of the bluff.
    10
    peer-reviewed FEMA funded study showing the highest long-term erosion rate in the
    area.13 Johnsson further pointed out that "the city's certified LCP requires that not only
    must an adequate factor of safety of 1.5 be shown under present conditions, but it must
    also demonstrate an adequate factor of safety of 1.5 will be maintained over 75 years and
    cover all types of slope failure."14 He explained that for "assuring an adequate factor of
    safety for the expected life of the development" it was necessary to calculate the total
    setback as "equal to the sum of the bluff retreat setback and the slope stability setbacks."
    Therefore, in Johnsson's opinion, the setback required in this instance was the 37 foot
    setback required to account for erosion over 75 years, plus the 23 to 25-foot setback
    required to achieve a safety factor of 1.5, for a total setback of 60 to 62 feet.
    In the presentation made by the Lindstroms' counsel at the Commission hearing,
    counsel argued that the Commission should rely on the TCG report to approve the permit
    at a setback of 40 feet. According to counsel, the City's LCP did not state that a safety
    factor of 1.5 had to exist over the entire course of 75 years. Counsel argued that the
    City's LCP did not "require precise methodology" to determine that the structure would
    be stable over the course of 75 years, so that the TCG report provided a sufficient basis to
    determine, under the terms of the City's LCP, that a home constructed at a setback of 40
    13      Johnsson explained that because of expected sea-level rise the predicted future
    erosion rate of 0.49 is based on the highest historic erosion rate shown in the 1999 study.
    We note that consistent with Johnsson's 0.49 erosion rate, GEI's original report noted that
    it had used a 0.49 erosion rate for other locations in Encinitas.
    14     As we have explained, the GEI report also took the approach of demonstrating a
    safety factor of 1.5 over the course of 75 years, taking into account the effect of expected
    erosion over that time period.
    11
    feet would be stable over its lifetime and not require a seawall or other bluff stabilization
    device.
    In its decision, the Commission explained, "In order to find the appropriate
    geologic setback for the bluff top home, the Certified LCP requires not only that a long-
    term erosion rate be adequately identified but also that the geotechnical report
    demonstrate an adequate factor of safety against slope failure (i.e., landsliding) of 1.5 will
    be maintained over 75 years (See [Encinitas Mun. Code, §] 30.34.020(D) . . .). The
    applicant's geotechnical report of October 23, 2015 identified that a 1.5 factor of safety
    under present conditions is located at approximately 23 to 25 ft. from the bluff edge.
    Thus, applying the estimated 37 ft. of erosion over the next 75 years to the 23 to 25 ft.
    location of the current 1.5 factor of safety would establish a minimum setback for new
    development at approximately 60 to 62 ft. (37 ft.+ (23 to 25 ft.)) from the coastal bluff."
    The Commission explained that the building footprint resulting from a 60 to 62 foot
    setback from the bluff edge would still allow the Lindstroms to construct a 3500 square
    foot home, not including a basement, and that if the Lindstroms obtained a variance from
    the City reducing the frontyard setback, the building footprint would be even larger.15
    Rejecting the approach proposed in the TCG report, the Commission stated, "The
    applicant also contends that the new home, as proposed to be located 40 ft. from the bluff
    edge, is expected to result in a Factor of Safety of 1.29 after 75 years of erosion
    15     Further, the City's LCP permits a structure to include a cantilevered portion that
    extends beyond the footprint of the structure, which the Commission noted would allow
    that portion of the structure to extend seaward an additional 12 feet.
    12
    (assuming an erosion rate of 0.40 ft./yr.). The applicants argue that with a 1.29 Factor of
    Safety the home will be safe throughout its 75 year economic life and will not require
    protection from shoreline armoring. However, the LCP requires a Factor of Safety of 1.5
    at 75 years. Thus the applicants' argument is not consistent with the requirements of the
    LCP. In addition, if the erosion rate recommended by the Commission geologist were
    used in the applicants' stability analysis, the resulting factor of safety would be
    significantly lower than 1.29 and after 75 years the home would most likely require
    shoreline armoring. The industry standard for new development is a Factor of Safety of
    1.5. Therefore, to establish a safe setback from slope stability from the edge of a coastal
    bluff, a new home must be sufficiently set back from the bluff edge to ensure that the 1.5
    Factor of Safety is maintained throughout the economic life of the structure."
    The Commission therefore approved the coastal development permit, but with
    several conditions, including that the structure be set back 60 to 62 feet from the edge of
    the bluff.16 Specifically, the conditions required by the Commission that are relevant to
    the issues presented in the Commission's appeal and the Lindstroms' cross-appeal are as
    follows:
    "[1.a] The foundation of the proposed home and the proposed basement
    and shoring beams shall be located no less than 60 to 62 ft. feet landward of
    16      On the date of the hearing, the Commission also made the preliminary
    determination that the appeal presented a substantial issue meriting full consideration of
    the appeal. (See Pub. Resources Code, § 30625, subd. (b)(2) [the Commission shall hear
    an appeal unless it determines "[w]ith respect to appeals to the commission after
    certification of a local coastal program, that no substantial issue exists with respect to the
    grounds on which an appeal has been filed"].)
    13
    the existing upper bluff edge on the northern and southern portions of the
    site, respectively. [¶] . . .
    "[3.a] By acceptance of this Permit, the applicants agree, on behalf of
    themselves and all successors and assigns, that no bluff or shoreline
    protective device(s) shall ever be constructed to protect the development
    approved pursuant to Coastal Development Permit No. A-6-ENC-13-0210
    including, but not limited to, the residence and foundation in the event that
    the development is threatened with damage or destruction from waves,
    erosion, storm conditions, bluff retreat, landslides, or other natural hazards
    in the future. By acceptance of this Permit, the applicants hereby waive, on
    behalf of themselves and all successors and assigns, any rights to construct
    such devices that may exist under Public Resources Code Section 30235.
    "[3.b] By acceptance of this Permit, the applicants further agree, on behalf
    of themselves and all successors and assigns, that the landowner shall
    remove the development authorized by this Permit, including the residence
    and foundation, if any government agency has ordered that the structures
    are not to be occupied due to any of the hazards identified above. In the
    event that portions of the development fall to the beach before they are
    removed, the landowner shall remove all recoverable debris associated with
    the development from the beach and ocean and lawfully dispose of the
    material in an approved disposal site. Such removal shall require a coastal
    development permit."
    "[3.c] In the event the edge of the bluff recedes to within 10 feet of the
    principal residence but no government agency has ordered that the
    structures not be occupied, a geotechnical investigation shall be prepared by
    a licensed coastal engineer and geologist retained by the applicants, that
    addresses whether any portions of the residence are threatened by wave,
    erosion, storm conditions, or other natural hazards. The report shall
    identify all those immediate or potential future measures that could stabilize
    the principal residence without shore or bluff protection, including but not
    limited to removal or relocation of portions of the residence. The report
    shall be submitted to the Executive Director and the appropriate local
    government official. If the geotechnical report concludes that the residence
    or any portion of the residence is unsafe for occupancy, the permittee shall,
    within 90 days of submitting the report, apply for a coastal development
    permit amendment to remedy the hazard, which shall include removal of
    the threatened portion of the structure.
    C.   The Trial Court's Decision on the Petition for Writ of Mandate
    14
    In August 2016, the Lindstroms filed a petition for writ of mandate against the
    Commission in the trial court. The writ of mandate challenged several of the special
    conditions imposed by the Commission, including special conditions 1.a, 3.a, 3.b, and 3.c
    set forth above.17
    After considering the administrative record and the parties' arguments, the trial
    court partially granted the relief sought by the Lindstroms.
    First, the trial court ruled that the Commission abused its discretion in requiring a
    setback of 60 to 62 feet from the bluff edge in special condition 1.a. The trial court
    explained that a setback of that distance was not required by the City's LCP, and that the
    imposition of the condition was not supported by substantial evidence because it was not
    based on a report prepared by a certified engineering geologist, but by staff geologist
    Johnsson's presentation to the Commission.
    In concluding that the City's LCP did not require a setback of 60 to 62 feet, the
    trial court relied primarily on a letter included by the Lindstroms in the administrative
    record that provided evidence of the City's interpretation of its LCP in 2006 when
    corresponding with the Commission about two other applications for coastal development
    permits. That letter, written by a city planner, stated that the City interpreted its LCP as
    follows: "The current practice for determining bluff setback accepted by the City of
    Encinitas requires that the geotechnical consultants perform two separate calculations to
    17      The petition for writ of mandate also challenged other special conditions that are
    not at issue in this appeal and which were not pursued in the Lindstroms' trial court
    briefing.
    15
    determine the appropriate bluff setback. First, the consultant is to determine the amount
    of erosion, based upon current published and accepted studies that will take place in 75
    years. Secondly, the geotechnical consultant, based upon site specific testing, is to
    perform a slope stability analysis and determine a setback distance that defines a 1.5
    safety factor for the slope. The larger of the two setback determinations is then utilized
    as the minimum required bluff setback; in no case can the bluff setback be less than 40
    feet." (Italics added.) The trial court concluded that contrary to the Commission's
    interpretation, the City's LCP did not require that the total required setback be determined
    by adding together the amount the bluff was expected to recede over 75 years due to
    erosion to the setback required to achieve a safety factor of 1.5.
    Second, the trial court concluded that the Commission abused its discretion in
    imposing special condition 3.a, which requires the Lindstroms to waive any right to build
    a bluff or shoreline protective device, such as a seawall, in the future. The trial court
    explained that the requirement was contrary to the language of the City's LCP and the
    Coastal Act because neither of them "contain such a waiver."
    Finally, the trial court approved both special condition 3.b, which requires removal
    of the residence and foundation if a government agency orders the structures are not to be
    occupied due to a natural hazard; and special condition 3.c, which requires the
    Lindstroms to obtain and follow the recommendations in a geotechnical report if the bluff
    recedes to within 10 feet of the principal residence. The trial court concluded that the
    special conditions were permissible because they were not inconsistent with the LCP.
    D.     The Instant Appeal and Cross-Appeal
    16
    The Commission filed a notice of appeal from the trial court's judgment and the
    Lindstroms filed a cross-appeal. The Commission contends that the trial court erred with
    respect to special conditions 1.a and 3.a. The Lindstroms contend the trial court erred
    with respect to special conditions 3.b and 3.c.
    II.
    DISCUSSION
    A.     Statutory Background and Standard of Review
    "The Coastal Act 'was enacted by the Legislature as a comprehensive scheme to
    govern land use planning for the entire coastal zone of California. The Legislature found
    that "the California coastal zone is a distinct and valuable natural resource of vital and
    enduring interest to all the people"; that "the permanent protection of the state's natural
    and scenic resources is a paramount concern"; that "it is necessary to protect the
    ecological balance of the coastal zone" and that "existing developed uses, and future
    developments that are carefully planned and developed consistent with the policies of this
    division, are essential to the economic and social well-being of the people of this
    state. . . ." ([Pub. Resources Code,] § 30001, subds. (a) and (d).)' [Citation] The Coastal
    Act is to be 'liberally construed to accomplish its purposes and objectives.' (Pub.
    Resources Code, § 30009.)" (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los
    Angeles (2012) 
    55 Cal. 4th 783
    , 793-794 (Pacific Palisades).)
    "The Coastal Act expressly recognizes the need to 'rely heavily' on local
    government '[t]o achieve maximum responsiveness to local conditions, accountability,
    and public accessibility. . . .' (Pub. Resources Code, § 30004, subd. (a).) As relevant
    17
    here, it requires local governments to develop [LCPs], comprised of a land use plan and a
    set of implementing ordinances designed to promote the act's objectives of protecting the
    coastline and its resources and of maximizing public access." (Pacific 
    Palisades, supra
    ,
    55 Cal.4th at p. 794.) "The Coastal Act provides that a local government must submit its
    [land use plan] to the [Commission] for certification that the [land use plan] is consistent
    with the policies and requirements of the Coastal Act. ([Pub. Resources Code,]
    §§ 30512, 30512.2.) After the Commission certifies a local government's [land use plan],
    it delegates authority over coastal development permits to the local government. (Pacific
    Palisades, at p. 794, citing [Pub. Resources Code,] §§ 30519, subd. (a), 30600.5,
    subds. (a), (b), (c).)" (Beach & Bluff Conservancy v. City of Solana Beach (2018) 28
    Cal.App.5th 244, 252 (Beach & Bluff Conservancy).)
    After a local government grants a coastal development permit, certain types of
    permit decisions may be appealed to the Commission by the applicant, any aggrieved
    person, or two members of the Coastal Commission (Pub. Resources Code, §§ 30603,
    30625, subd. (a)). As relevant here, an appeal to the Commission is authorized for
    "[d]evelopments approved by the local government between the sea and the first public
    road paralleling the sea or within 300 feet of the inland extent of any beach or of the
    mean high tideline of the sea where there is no beach, whichever is the greater distance."
    (Id., § 30603, subd. (a)(1).) " 'If the Commission determines that an appeal presents a
    substantial issue, the permit application is reviewed de novo; in effect, the Commission
    hears the application as if no local governmental unit was previously involved, deciding
    for itself whether the proposed project satisfies legal standards and requirements.' "
    18
    (McAllister v. California Coastal Com. (2008) 
    169 Cal. App. 4th 912
    , 920, fn. 3; see also
    Pub. Resources Code, §§ 30621 [de novo hearing on appeal]; 30625, subd. (b)(2)
    [substantial issue required].) The Commission's jurisdiction on appeal, however, is
    limited. (Schneider v. California Coastal Com. (2006) 
    140 Cal. App. 4th 1339
    , 1344
    (Schneider).) Specifically, "[t]he grounds for an appeal . . . shall be limited to an
    allegation that the development does not conform to the standards set forth in the certified
    local coastal program or the public access policies set forth in [the Coastal Act]." (Pub.
    Resources Code, § 30603, subd. (b)(1).)18 In addition, the Commission's jurisdiction on
    appeal includes imposing reasonable terms and conditions on the permit, as the Coastal
    Act provides "[a]ny permit that is . . . approved on appeal, . . . shall be subject to
    reasonable terms and conditions in order to ensure that such development or action will
    be in accordance with the provisions of this division." (Pub. Resources Code, § 30607.)
    As our Supreme Court has observed, " '[u]nder the Coastal Act's legislative
    scheme, . . . the [LCPs] and the development permits issued by local agencies pursuant
    to the Coastal Act are not solely a matter of local law, but embody state policy.' [Citation]
    'In fact, a fundamental purpose of the Coastal Act is to ensure that state policies prevail
    over the concerns of local government.' " (Pacific 
    Palisades, supra
    , 55 Cal.4th at p. 794.)
    18 The Coastal Act's right of public access is set forth, inter alia, in Public Resources
    Code, section 30211, which states that "[d]evelopment shall not interfere with the public's
    right of access to the sea where acquired through use or legislative authorization" and
    section 30212, subdivision (a), which states that with certain exceptions, "[p]ublic access
    from the nearest public roadway to the shoreline and along the coast shall be provided in
    new development projects." The public access policies of the Coastal Act are not at issue
    in this appeal.
    19
    To obtain judicial review of a decision or action of the Commission, any aggrieved
    person has the right to file a petition for writ of mandate pursuant to section 1094.5 of the
    Code of Civil Procedure. (Pub. Resources Code, § 30801.) " ' "The inquiry in such a
    case shall extend to the questions of whether the [Commission] has proceeded without, or
    in excess of jurisdiction; whether there was a fair trial; and whether there was any
    prejudicial abuse of discretion.' " [Citation] An abuse of discretion is established if the
    Commission failed to proceed in the manner required by law, its order or decision is not
    supported by the findings, or its findings are not supported by substantial evidence.
    [Citation] [¶] The trial court presumes that the agency's decision is supported by
    substantial evidence, and the party challenging that decision bears the burden of
    demonstrating the contrary. [Citation] In reviewing the agency's decision, the court
    examines the whole record and considers all relevant evidence, including that evidence
    which detracts from its decision. [Citation.] 'Although this task involves some weighing
    to fairly estimate the worth of the evidence, that limited weighing does not constitute
    independent review where the court substitutes its own findings and inferences for that of
    the Commission. Rather, it is for the Commission to weigh the preponderance of
    conflicting evidence, as [the court] may reverse its decision only if, based on the evidence
    before it, a reasonable person could not have reached the conclusion reached by it.' "
    (Ocean Harbor House Homeowners Assn. v. California Coastal Com. (2008) 
    163 Cal. App. 4th 215
    , 226-227 (Ocean Harbor).)
    "On appeal . . . our role is identical to that of the trial court." (Ocean 
    Harbor, supra
    , 163 Cal.App.4th at p. 227.) " 'Thus, the conclusions of the superior court, and its
    20
    disposition of the issues in this case, are not conclusive on appeal.' " (Eskeland v. City of
    Del Mar (2014) 
    224 Cal. App. 4th 936
    , 941.)
    B.     The Commission Did Not Abuse Its Discretion By Imposing Special Condition
    1.a, Which Requires the Structure to Be Set Back 60 to 62 Feet from the Bluff
    Edge
    We first consider the Commission's challenge to the trial court's conclusion that
    the Commission abused its discretion by imposing special condition 1.a, which requires a
    60 to 62-foot setback from the edge of the bluff. As we have explained, the Commission
    concluded that to meet the requirement in the City's LCP that the proposed structure be
    safe from bluff failure and erosion over the course of 75 years using a safety factor of 1.5,
    the Lindstroms' house had to be set back 60 to 62 feet from the bluff edge.
    As they did in the trial court, the Lindstroms contend that the Commission abused
    its discretion because the City's LCP does not require the method applied by the
    Commission in determining the required setback. Specifically, the Lindstroms contend
    that the City's LCP requires only that the structure will be reasonably safe over its
    lifetime, not that the structure be set back a total distance determined by combining the
    setback required by 75 years of predicted erosion with the setback required to achieve a
    safety factor of 1.5. The Lindstroms contend that "the Commission advances a strained
    interpretation of the LCP as requiring the two distances (i.e., the 75-year erosion line and
    the 1.5 factor of safety line) to be added together to reach the required setback."19
    19     The Lindstroms attempt to characterize their dispute with the Commission's
    interpretation of the City's LCP as a claim that "the Commission exceeded its jurisdiction
    by applying an incorrect legal interpretation of the City's certified LCP." We disagree
    21
    "The construction of an ordinance is a pure question of law for the court, and the
    rules applying to construction of statutes apply equally to ordinances." (H.N. & Frances
    C. Berger Foundation v. City of Escondido (2005) 
    127 Cal. App. 4th 1
    , 12.) "Where, as
    here, the issue presented is one of statutory construction, our fundamental task is 'to
    ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.'
    [Citations] We begin by examining the statutory language because it generally is the
    most reliable indicator of legislative intent. [Citation] We give the language its usual
    and ordinary meaning, and '[i]f there is no ambiguity, then we presume the lawmakers
    meant what they said, and the plain meaning of the language governs.' [Citation] . . .
    Ultimately we choose the construction that comports most closely with the apparent
    intent of the lawmakers, with a view to promoting rather than defeating the general
    purpose of the statute. [Citation] Any interpretation that would lead to absurd
    consequences is to be avoided." (Allen v. Sully-Miller Contracting Co. (2002) 
    28 Cal. 4th 222
    , 227.)
    Before turning to the interpretation of the City's LCP, we note that the parties
    disagree as to whether the Commission's interpretation of the City's LCP is entitled to
    deference. "An agency interpretation of the meaning and legal effect of a statute is
    entitled to consideration and respect by the courts," although the agency's "power to
    with the characterization. Even were the Commission's interpretation of the City's LCP
    ultimately determined to be erroneous, it is fully within the jurisdiction of the
    Commission on appeal to interpret and apply the requirements of a local government's
    LCP in carrying out its role of determining whether "the development does not conform
    to the standards set forth in the certified local coastal program." (Pub. Resources Code,
    § 30603, subd. (b)(1).
    22
    persuade is both circumstantial and dependent on the presence or absence of factors that
    support the merit of the interpretation." (Yamaha Corp. of America v. State Bd. of
    Equalization (1998) 
    19 Cal. 4th 1
    , 7 (Yamaha).)20
    Applying this rule, the Lindstroms contend that the City's planning commission is
    the applicable agency in this instance and that we should defer to it in interpreting the
    LCP because the City's planning commission applies the LCP when acting on coastal
    development permits. Specifically, the Lindstroms advocate that we look to the
    interpretation set forth in the 2006 letter that a city planner sent to the Commission,
    which purported to describe the City's approach, at the time, to determining required
    bluff-top setbacks under its LCP.21
    20     "Where the meaning and legal effect of a statute is the issue, an agency's
    interpretation is one among several tools available to the court. Depending on the
    context, it may be helpful, enlightening, even convincing. It may sometimes be of little
    worth." 
    (Yamaha, supra
    , 19 Cal.4th at pp. 7-8.) "Whether judicial deference to an
    agency's interpretation is appropriate and, if so, its extent—the 'weight' it should be
    given—is . . . fundamentally situational. A court assessing the value of an interpretation
    must consider a complex of factors material to the substantive legal issue before it, the
    particular agency offering the interpretation, and the comparative weight the factors
    ought in reason to command." (Id. at p. 12.)
    21      We note however, that the record does not contain any official statement of the
    City's current interpretation of its LCP regarding bluff-top setbacks, and it is possible that
    the City's view has changed since 2006. Significantly, the GEI report submitted to the
    City with the Lindstroms' application for a coastal development permit employed the
    same methodology that the Commission believes is required by the City's LCP, in that it
    combined the setback required by the expected bluff erosion over 75 years with the
    setback required to achieve a safety factor of 1.5. The City approved the application and
    made no comment either endorsing or disapproving the particular methodology used by
    GEI. Further, the City is not a participant in this appeal, and it has taken no position on
    whether it would approve a 40 foot setback based on TRG's new calculations for the 75-
    year erosion setback and the safety factor setback. The only indication in the record that
    23
    In contrast, the Commission argues that we should defer to its interpretation of the
    City's LCP, as it was involved in certifying it, and it applies the City's LCP in reviewing
    appeals from the City's approval of coastal development permits. Further, as the
    Commission points out, published case law states that a court should defer to the
    Commission's interpretation of a local government's LCP. (Alberstone v. California
    Coastal Com. (2008) 
    169 Cal. App. 4th 859
    , 864 ["we grant broad deference to the
    Commission's interpretation of the [Malibu] LCP since it is well established that great
    weight must be given to the administrative construction of those charged with the
    enforcement and interpretation of a statute"]; Hines v. California Coastal Com. (2010)
    
    186 Cal. App. 4th 830
    , 849 ["we grant broad deference to the Commission's interpretation
    of the [Sonoma County LCP] since it is well established that great weight must be given
    to the administrative construction of those charged with the enforcement
    and interpretation of a statute."]; Reddell v. California Coastal Com. (2009) 
    180 Cal. App. 4th 956
    , 968 [in disagreement with project applicant as to whether building
    height and setbacks should be calculated using the city's general laws or the city's LCP,
    "we must defer to the Commission's interpretation because it is reasonable and in keeping
    with the purposes of the LCP"].) We note, however, that those cases have limited
    persuasive value here because they did not involve a purported disagreement between the
    the City may possibly still adhere to the interpretation in the 2006 letter is an email from
    the City's outside geotechnical consultant in February 2013, to someone at GEI, restating
    the position that the city planner expressed in the 2006 letter. Thus, it is possible that,
    had the City been presented with the TCG report rather than the GEI report it would not
    have approved a 40 foot setback and would have required an analysis that combined the
    erosion setback and the safety factor setback.
    24
    Commission and the local government as to how the local government's LCP should be
    interpreted, and thus did not decide which, if any, interpretation should be given
    deference in the case of a conflict.22
    Here, as we will explain, because the meaning of the relevant provisions of the
    City's LCP is plain, we need not resolve the issue of whether it is more appropriate to
    defer to the Commission or the City when interpreting the City's LCP, or what degree of
    deference, if any, would be appropriate. (Sustainability, Parks, Recycling & Wildlife
    Defense Fund v. Department of Resources Recycling & Recovery (2019) 34 Cal.App.5th
    676, 701, citation omitted ["While in exercising our independent judgment regarding the
    construction of a statute we may give deference to an agency's interpretation . . . , no
    such deference is required here given the plain language of the statute.].)
    22      The Lindstroms contend that we also should not defer to the Commission's
    interpretation of the City's LCP because the Commission "interpreted and applied [the
    LCP] in the exact same manner as the City for many years." However, the record does
    not support the Lindstroms' contention. As the Commission points out, the record
    contains documents from as far back as 2002 showing that the Commission interpreted
    the City's LCP in the same manner as in this case. The Lindstroms have not identified
    any document in the record in which the Commission applied the interpretation of the
    LCP that the City advanced in the 2006 letter. Although the Lindstroms claim that
    "between 1995 and 2001, the Commission either expressly or tacitly approved [permits]
    for sixteen blufftop homes in Encinitas, all with a 40-foot setback," they do not cite to
    documents in the record to establish that assertion other than an unhelpful summary chart
    prepared by the Lindstroms for the Commission hearing that is not accompanied by any
    supporting record citations. Further, even if the Lindstroms were able to show that
    several homes with 40-foot setbacks were approved by the Commission between 1995
    and 2001, they have not established that in evaluating the appropriate setbacks in those
    cases the Commission used a methodology different than it applied here. It is quite
    possible that in those cases the combination of the 75-year erosion setback and the safety
    factor setback did not exceed 40 feet.
    25
    With the rules of statutory interpretation in mind, we turn to the relevant language
    of the City's LCP. As we have explained, the LCP lists a number of issues that a
    geotechnical report in support of a coastal development permit in the Coastal Bluff
    Overlay Zone must address including the "potential landslide conditions," "estimated rate
    of erosion at the base of the bluff fronting the subject site," and "[a]ny other factors that
    might affect slope stability." (Encinitas Mun. Code, § 30.34.020D.4, 8 & 11.) The LCP
    also specifically requires the applicant to submit "a bluff slope failure plane analysis"
    which "shall be performed according to geotechnical engineering standards, and shall:
    [¶] a. Cover all types of slope failure. [¶] b. Demonstrate a safety factor against slope
    failure of 1.5. [¶] c. Address a time period of analysis of 75 years." (Encinitas Mun.
    Code, § 30.34.020D.11, 1st par. a-c.) However, the general standard that the applicant is
    required to meet is set forth as follows: "The review/report shall certify that the
    development proposed will have no adverse [e]ffect on the stability of the bluff, will not
    endanger life or property, and that any proposed structure or facility is expected to be
    reasonably safe from failure and erosion over its lifetime without having to propose any
    shore or bluff stabilization to protect the structure in the future." (Encinitas Mun. Code,
    § 30.34.020D, italics added.)
    The foregoing provisions establish several principles. First, a structure must be
    reasonably safe from both "failure and erosion" over its lifetime. (Encinitas Mun. Code,
    § 30.34.020D, italics added.) Second, an analysis of bluff slope failure must demonstrate
    a "safety factor against slope failure of 1.5." (Encinitas Mun. Code, § 30.34.020D.11, 1st
    26
    par. b.)23 Third, the designated lifetime of a structure, over which safety from failure
    and erosion must be demonstrated, is 75 years. (Encinitas Mun. Code, § 30.34.020D.11,
    1st par. c [requiring "a time period of analysis of 75 years"].) Finally, the safety from
    failure and erosion must be obtained "without having to propose any shore or bluff
    stabilization to protect the structure in the future." (Ibid.)
    The Lindstroms contend that the provisions of the LCP we have quoted above
    "require[] applicants to submit a geotechnical review or report that certifies simply that
    the structure be 'reasonably safe from failure and erosion over its lifetime,' not that a 1.5
    factor of safety will be absolutely maintained over a period of 75 years." According to
    the Lindstroms, "[t]he Commission's interpretation would require applicants to determine
    a bluff edge setback by adding the distance from bluff edge to the 1.5 factor of safety line
    to the distance from the bluff edge to the 75-year erosion line, resulting in a far greater
    setback distance than the LCP's requirement that the 'development proposed will have no
    adverse effect on the stability of the bluff, will not endanger life or property, and that any
    proposed structure . . . is expected to be reasonably safe from failure and erosion over its
    lifetime without having to propose any shore or bluff stabilization to protect the structure
    in the future.' [Citation] That is not a correct, or even reasonable, interpretation of the
    LCP." As the Lindstroms interpret the LCP, "the plain language" "does not require the
    engineer to certify a 1.5 factor of safety through the entire 75 years." As we will explain,
    we disagree.
    23     The parties agree that a safety factor of 1.5 is the industry standard for new
    construction on slopes.
    27
    Importantly, the LCP requires a structure to "be reasonably safe from failure and
    erosion over its lifetime." (Encinitas Mun. Code, § 30.34.020D, italics added.) Further,
    the LCP specifically provides that the geotechnical report must "[d]emonstrate a safety
    factor against slope failure of 1.5" and must "[a]ddress a time period of analysis of 75
    years." (Encinitas Mun. Code, § 30.34.020D.11, 1st par. b & c.) When read together, the
    plain meaning of these provisions is that, taking into account the erosion that will occur
    over 75 years, the geotechnical report must demonstrate a safety factor of 1.5 at the end
    of 75 years. The Lindstroms' proposed interpretation, in which a safety factor of 1.5 must
    be shown only at the present time, not taking into account predicted erosion over the
    lifetime of the structure, defies the plain language of the LCP as well as common sense.
    A layman does not need special geotechnical training to understand the self-evident
    concept that for a structure to "be reasonably safe from failure and erosion over its
    lifetime" (Encinitas Mun. Code, § 30.34.020D), the combined effect of expected erosion
    and bluff instability must be considered.24 A structure that is reasonably safe today
    24      The Lindstroms contend that Johnsson's approach of combining the 75-year
    erosion setback with the safety factor setback should not have been followed by the
    Commission because that methodology "has not been peer reviewed and is not generally
    accepted by the geotechnical engineering community." We reject the argument for two
    reasons. First, the Lindstroms support their argument with a statement by TCG's
    engineer, Walter Crampton, who spoke at the Commission hearing. Crampton stated,
    "With regards to Dr. Johnsson's approach, I frankly disagree with it. And an important
    thing, it's not generally accepted by the technical community. It's not been peer reviewed
    by the geotechnical community." However, Crampton was ambiguous as to what he was
    referencing in criticizing Johnsson's approach, and in context it appears he may have
    been criticizing Johnsson's approach to determining the predicted rate of erosion.
    Specifically, in Crampton's next sentence he describes a paper he wrote "to address the
    effects of sea level rise on coastal bluff erosion." Second, although Johnsson read the
    28
    because it is located 40 feet from the edge of the bluff will not be reasonably safe at the
    end of its lifetime when the bluff has eroded 37 feet, meaning that the structure is only
    three feet from the edge of the bluff.25
    The TCG report contended that a structure that was set back 40 feet from the bluff
    edge would be reasonably safe after 75 years with a safety factor of 1.29.26 However,
    City's LCP as requiring that the 75-year erosion setback be combined with the safety
    factor setback, that understanding does not depend on any special geotechnical
    conclusion that requires peer review but is, instead, a matter of statutory interpretation.
    As we have explained, the plain language of the LCP requires that a safety factor of 1.5
    be demonstrated over the course of 75 years.
    25      The predicted erosion of 37 feet over 75 years is based on Johnsson's presentation
    to the Commission, which assumed an annual erosion rate of 0.49 feet premised on the
    greatest rate of historical erosion identified in a 1999 peer-reviewed study. Even were we
    to employ TCG's assumption that the bluff will erode only 30 feet over 75 years (at an
    annual rate of 0.40 feet), at the end of 75 years, a structure built with a 40-foot setback
    would be only 10 feet from the bluff edge, which is far less than the 23 to 25 feet of
    setback that TCG concluded was necessary to achieve a safety factor of 1.5. On appeal,
    although the Lindstroms do not directly challenge the 0.49-foot annual rate of erosion
    identified by Johnsson, they generally attempt to discredit Johnsson by pointing out that
    the City's LCP requires a report prepared by "a certified engineering geologist who has
    been pre-qualified as knowledgeable in City standards, coastal engineering and
    engineering geology." (Encinitas Mun. Code, § 30.34.020D.) In the trial court, the
    Lindstroms argued that Johnsson was a "staff geologist, who had no training as an
    engineer, neither civil nor geotechnical." In their appellate brief, the Lindstroms argue
    that Johnsson should not have been credited because he "is not a geotechnical engineer"
    and "did not perform any independent analysis of the project" and instead "simply
    reviewed the reports submitted by the Lindstroms' consultants." We are not persuaded
    that the Commission improperly relied on Johnsson's opinion. For one thing, a document
    in the record indicates that Johnsson identifies himself as a certified engineering geologist
    (i.e., "C.E.G,"), which is the exact qualification required by the City's LCP. Further,
    Johnsson amply supported his opinions, including explaining that his decision to use an
    annual erosion rate of 0.49-feet was based on a published peer-reviewed study regarding
    the Encinitas coast, which he specifically identified.
    29
    based on the plain language of the City's LCP, a safety factor of 1.29 does not meet bluff
    stability requirements. Rather than leaving open for debate the issue of what constitutes a
    structure that is reasonably safe from failure, the City's LCP expressly states that the
    geotechnical report must "[d]emonstrate a safety factor against slope failure of 1.5."
    (Encinitas Mun. Code, § 30.34.020D.11, 1st par. b.) In light of that language, the
    Commission reasonably concluded that, even accepting all of TCG's underlying
    assumptions, the TCG report simply did not meet the requirements set forth in the LCP
    because TCG acknowledged that the safety factor at the end of 75 years would be 1.29,
    not 1.5.27
    We therefore conclude that the trial court erred in granting relief to the Lindstroms
    on special condition 1.a. The Commission did not abuse its discretion by requiring that
    the Lindstroms' house be set back 60 to 62 feet from the edge of the bluff.
    C.     The Commission Did Not Abuse Its Discretion By Requiring in Special Condition
    3.a That the Lindstroms Waive Any Right to Build a Seawall or Other Bluff
    Protection Device
    26     We note that if, as Johnsson opined, the annual rate of erosion is assumed to be
    0.49 rather than 0.40 as determined by TCG, the safety factor would be less than 1.29 at
    the end of 75 years.
    27      The Lindstroms contend that the Commission is improperly attempting to amend
    the City's LCP by interpreting it as requiring a setback combining the 75-year erosion
    setback and the safety factor of 1.5 setback. As the Lindstroms correctly point out, after
    an LCP is certified, the Commission may not unilaterally amend a local government's
    LCP and is limited to recommending that the local government adopt certain
    amendments. (Pub. Resources Code, §§ 30514, 30519, 30519.5; City of Malibu v.
    California Coastal Com. (2012) 
    206 Cal. App. 4th 549
    , 563; Security National Guaranty,
    Inc. v. California Coastal Com. (2008) 
    159 Cal. App. 4th 402
    , 421-422.) However,
    because we conclude that the Commission's interpretation is supported by the plain
    language of the City's LCP, its interpretation does not effect an amendment to the LCP.
    30
    We next consider the Commission's challenge to the trial court's ruling that the
    Commission abused its discretion in imposing special condition 3.a, which requires the
    Lindstroms to agree that "no bluff or shoreline protective device(s) shall ever be
    constructed to protect the development approved pursuant to" the permit and to "waive,
    on behalf of themselves and all successors and assigns, any rights to construct such
    devices that may exist under Public Resources Code Section 30235."28
    The Commission argues that it has the authority to impose reasonable special conditions
    when making a de novo decision on a coastal development permit. The Lindstroms, in
    contrast, argue (1) the City's LCP does not allow the imposition of a requirement that the
    Lindstroms waive any future right to build a seawall; and (2) the imposition of special
    condition 3.a is an unconstitutional taking without compensation.
    1.     The Commission's Authority to Impose Special Conditions
    In considering the Lindstroms' contention that the City's LCP does not authorize
    the Commission to impose special condition 3.a, we begin with the provision in the
    Coastal Act that authorizes the Commission to impose reasonable terms and conditions
    on any permit that it approves on appeal to ensure that the development is in accordance
    with the Coastal Act's provisions. Specifically, the Coastal Act provides that "[a]ny
    permit that is issued or any development or action approved on appeal, pursuant to this
    chapter, shall be subject to reasonable terms and conditions in order to ensure that such
    28      For the sake of convenience, we will use the shorthand term "seawall" to refer to
    all types of bluff or shoreline protective devices at issue in special condition 3.a.
    31
    development or action will be in accordance with the provisions of this division." (Pub.
    Resources Code, § 30607, italics added.)
    Much of the case law discussing the Commission's broad authority to impose
    permit conditions has arisen in cases where the permit application was made directly to
    the Commission rather than where the Commission was considering an appeal from a
    local government's issuance of a permit. (Ocean 
    Harbor, supra
    , 163 Cal.App.4th at
    p. 242 [in a case arising after the Commission approved an application for a permit to
    build a seawall made to the Commission, but imposing mitigation-related conditions, the
    court observed that the Commission has "broad discretion" to impose conditions in
    granting the permit]; La Costa Beach Homeowners' Assn. v. California Coastal
    Com. (2002) 
    101 Cal. App. 4th 804
    , 817 [approving the Commission's imposition of
    offsite mitigation as a condition for a permit application made directly to the
    Commission]; Whaler's Village Club v. California Coastal Com. (1985) 
    173 Cal. App. 3d 240
    , 261 [in a direct application to the Commission for a revetment permit, the
    imposition of a condition requiring dedication of an easement for public access was
    within the Commission's authority]; Liberty v. California Coastal Com. (1980) 
    113 Cal. App. 3d 491
    , 498 [in a challenge to the Commission's imposition of parking condition
    to a development permit made directly to the Commission, the court observed that the
    Commission "can impose reasonable terms and conditions in order to ensure a
    development will be in accordance with the provisions of the law"].)
    The central authority considering the Commission's authority to impose special
    conditions when deciding an appeal from a local government's approval of a coastal
    32
    development permit is 
    Schneider, supra
    , 
    140 Cal. App. 4th 1339
    . In Schneider, on the
    Commission's de novo review of a local government's approval of a permit to build a
    coastal residence, the Commission imposed 15 special conditions, several of which were
    targeted at preserving the character of the view that a boater would have of the coastline
    from offshore. (Id. at pp. 1342-1343.) Although Schneider did not question the
    Commission's authority to impose special conditions on appeal, it required that those
    conditions be consistent with the Coastal Act and the local government's LCP. (Id. at
    pp. 1345-1348.) Because neither of those bodies of law contained a basis for protecting a
    boater's right to a view of the coastline from offshore, Schneider held that the
    Commission exceeded its authority in imposing those special conditions. (Id. at p. 1348)
    2.     Special Condition 3.a is Consistent With the City's LCP
    According to the Lindstroms, the Commission's requirement that they waive any
    future right they might have to build a seawall is impermissible because it "directly
    contradicts the express language of the LCP, which allows for bluff repair and erosion
    control measures when necessary to protect existing principal structures in danger from
    erosion." Specifically, the City's Resource Management Element of the General Plan,
    Policy 8.5 provides, "Construction of structures for bluff protection shall only be
    permitted when an existing principal structure is endangered and no other means of
    protection of that structure is possible." (Encinitas General Plan and Local Coastal
    Program Land Use Plan, Resource Management Element, Policy 8.5 (Policy 8.5), italics
    33
    added.)29 The Coastal Act contains a similar provision. "Revetments, breakwaters,
    groins, harbor channels, seawalls, cliff retaining walls, and other such construction that
    alters natural shoreline processes shall be permitted when required to serve coastal-
    dependent uses or to protect existing structures or public beaches in danger from erosion
    and when designed to eliminate or mitigate adverse impacts on local shoreline sand
    supply." (Pub. Resources Code, § 30235, italics added.) In essence, the Lindstroms
    argue that after their home is built, it will become an "existing principal structure"
    covered by Policy 8.5, which permits a seawall if the structure becomes endangered.
    Therefore, according to the Lindstroms, the Commission's imposition of special condition
    3.a conflicts with Policy 8.5 and with the Coastal Act's provision allowing seawalls
    "when required . . . to protect existing structures." (Pub. Resources Code, § 30235.)
    However, as the Commission points out, special condition 3.a implements a
    different provision in the City's LCP, which is directly applicable here because it pertains
    to the construction of new development on ocean bluffs. Specifically, the City's LCP
    states that a geotechnical report in support of a coastal development permit in the Coastal
    Bluff Overlay Zone must demonstrate "that any proposed structure or facility is expected
    to be reasonably safe from failure and erosion over its lifetime without having to propose
    any shore or bluff stabilization to protect the structure in the future." (Encinitas Mun.
    29     Similarly, the Public Safety Element of the City's General Plan states that bluff
    repair and erosion control measures "shall be permitted only when required to serve
    coastal-dependent uses or to protect existing principal structures or public beaches in
    danger from erosion." (Encinitas General Plan and Local Coastal Program Land Use
    Plan, Public Safety Element, Policy 1.6(e), italics added.)
    34
    Code, § 30.34.020D, italics added.)30 This provision in the City's LCP is similar to the
    Coastal Act's requirement that "[n]ew development shall . . . [¶] (b) Assure stability and
    structural integrity, and neither create nor contribute significantly to erosion, geologic
    instability, or destruction of the site or surrounding area or in any way require the
    construction of protective devices that would substantially alter natural landforms along
    bluffs and cliffs." (Pub. Resources Code, § 30253, italics added.)
    The Commission explains that it "imposed the condition in order to harmonize the
    sections of the LCP addressing new development, which must in no way require a
    shoreline protective device[], and existing development, which may be entitled to such a
    device." Specifically, the Commission states that "[i]n order to avoid 'new' construction
    from arguably being considered 'existing' and thereby circumventing the LCP's restriction
    on shoreline devices, the Commission included special condition 3(a)."
    Focusing on the portion of the City's LCP identified by the Commission pertaining
    to new development, we conclude that special condition 3.a is fully consistent with the
    City's LCP. The City's LCP establishes that new development may be approved only if
    "over its lifetime" the new development is not expected to require a "future" proposal to
    build "any shore or bluff stabilization to protect the structure." (Encinitas Mun. Code,
    § 30.34.020D, italics added.) By requiring the Lindstroms to agree that no seawall will
    30     The Public Safety Element of the City's General Plan similarly states that "[t]he
    City will rely on the Coastal Bluff . . . Overlay Zone[] to prevent future development or
    redevelopment . . . which may require structural measures to prevent destructive erosion
    or collapse." (Encinitas General Plan and Local Coastal Program Land Use Plan, Public
    Safety Element, Policy 1.3.)
    35
    ever be built to protect the home they propose to construct, special condition 3.a simply
    enforces the LCP's requirements for new development.31
    3.     Special Condition 3.a Does Not Constitute an Unconstitutional Taking
    The Lindstroms also contend that special condition 3.a is impermissible because it
    constitutes an unconstitutional taking under the takings clause of the Fifth Amendment of
    the United States Constitution. "The Takings Clause of the Fifth Amendment, made
    applicable to the States through the Fourteenth, [citation], provides that private property
    31      The Lindstroms' appellate brief contains extensive discussion aimed at rebutting a
    statutory argument that they perceive the Commission to have made in its opening brief.
    As the Lindstroms characterize the Commission's position, it believes that Public
    Resources Code, section 30235 allows construction of sea walls or other protective
    devices only for structures that were " 'existing' " at the time the Coastal Act took effect
    in 1977. However, the Commission's reply brief clarifies that it is not taking such a
    position. Instead, the Commission states that regardless of the definition of "existing" in
    Public Resources Code, section 30235, "it is entitled to impose the condition requiring
    [the Lindstroms] to waive any rights to build a seawall in the future as a condition of
    approving their new development." The Lindstroms have filed a respondents' appendix in
    support of their cross-appeal, which contains several documents that the Lindstroms
    contend are relevant to rebutting their perceived, but incorrect, understanding of the
    Commission's statutory interpretation argument. Specifically, the documents consist of
    (1) the original text of the Coastal Act; (2) the Commission's brief and the opinion in an
    unpublished 2006 appellate case; (3) the text of an unpassed 2017 Assembly bill. The
    Commission argues that all of the documents in the respondents' appendix are improperly
    included in the record, as they were not part of the administrative record (Bunnett v.
    Regents of University of California (1995) 
    35 Cal. App. 4th 843
    , 853), and to the extent
    any of the documents may be subject to judicial notice to assist in statutory interpretation,
    the Lindstroms have not filed a request for judicial notice. The Commission contends
    that we should strike the respondents' appendix on procedural grounds or should at least
    decline to consider the documents. Because the Commission has not filed a formal
    motion to strike the respondents' appendix, we decline to issue such an order. However,
    because the documents were not accompanied by a request for judicial notice and
    because they pertain to an issue that is not relevant to our resolution of this appeal, we
    accordingly decline to consider them.
    36
    shall not 'be taken for public use, without just compensation.' " (Lingle v. Chevron U.S.A.
    Inc. (2005) 
    544 U.S. 528
    , 536-537.).)
    One instance in which a violation of the takings clause may occur is "[u]nder the
    well-settled doctrine of 'unconstitutional conditions,' " under which "the government may
    not require a person to give up a constitutional right—here the right to receive just
    compensation when property is taken for a public use—in exchange for a discretionary
    benefit conferred by the government where the benefit sought has little or no relationship
    to the property." (Dolan v. City of Tigard (1994) 
    512 U.S. 374
    , 385.) Although the
    Lindstroms' takings clause argument is not well focused, they appear to rely mainly on
    the unconstitutional conditions doctrine for their attack on special condition 3.a.
    Specifically, the Lindstroms contend that special condition 3.a "unreasonably compels
    the complete and total forfeiture of the right to shoreline protection as a condition to
    using and developing property."
    " 'The doctrine of unconstitutional conditions limits the government's power to
    require one to surrender a constitutional right in exchange for a discretionary benefit.'
    [Citations.] In the takings context, the United States Supreme Court has held 'the
    government may impose such a condition only when the government demonstrates that
    there is an "essential nexus" [citation] and "rough proportionality" [citation] between the
    required dedication and the projected impact of the proposed land use.' ([California
    Building Industry Assn. v. City of San Jose (2015) 
    61 Cal. 4th 435
    ,] 458 citing Nollan v.
    Cal. Coastal Com. (1987) 
    483 U.S. 825
    . . . and Dolan v. City of Tigard (1994) 
    512 U.S. 374
    . . . .) This test for determining whether a condition is unconstitutional is commonly
    37
    referred to as the 'Nollan/Dolan test' [citations] and is viewed as a type of 'heightened
    scrutiny.' " (Beach & Bluff 
    Conservancy, supra
    , 28 Cal.App.5th at p. 266.)
    " ' "[A] predicate for any unconstitutional conditions claim is that the government
    could not have constitutionally ordered the person asserting the claim to do what it
    attempted to pressure that person into doing." [Citation.] Or, in other words, the
    condition is one that would have constituted a taking of property without just
    compensation if it were imposed by the government on a property owner outside of the
    permit process.' (California 
    Building, supra
    , 61 Cal.4th at pp. 459-460.) The
    unconstitutional conditions doctrine applies only where the condition at issue constitutes
    an 'exaction' in the form of either the conveyance of a property interest or the payment of
    money; the doctrine does not apply where the government simply restricts the use of
    property without demanding an exaction. (Id. at pp. 457, 460.)" (Beach & Bluff
    
    Conservancy, supra
    , 28 Cal.App.5th at p. 266.)32
    32      We note that as a premise of their unconstitutional conditions argument, the
    Lindstroms appear to assume that they possess a right to build a seawall to protect
    structures on their property, and that the Commission is improperly requiring them to
    surrender that right as condition for obtaining a permit. Specifically, they argue that the
    special condition improperly compels "forfeiture of the right to shoreline protection."
    (Italics added.) However, that premise fails because "[i]n general, an individual has no
    'vested right to protect property in a particular manner where the method chosen is one
    that is regulated by government . . . .' " (Barrie v. California Coastal Com. (1987) 
    196 Cal. App. 3d 8
    , 15 [upholding Commission permit condition for seawall construction that
    required removal of a temporary seawall].) There is no question that the construction of a
    seawall is a highly regulated area covered, at a minimum, by the Coastal Act and the
    City's LCP. There is no guarantee that any future application to build a seawall would be
    approved to protect the Lindstroms' property, even if they did not agree to the waiver
    required by special condition 3.a. Moreover, as the Commission points out, the
    Lindstroms' real property does not even extend all the way down the face of the bluff to
    38
    The Lindstroms argue that the Commission's imposition of special condition 3.a
    violates the unconstitutional conditions doctrine because it "has no relationship or nexus
    to any impacts, identified or not, associated with the development of the property" and
    thus fails the essential nexus requirement of the Nollan/Dolan test. The Lindstroms'
    argument lacks merit because special condition 3.a is not the type of permit condition that
    is subject to unconstitutional conditions doctrine. As we have discussed, "[t]he
    unconstitutional conditions doctrine does not apply 'where the government
    simply restricts the use of property without demanding the conveyance of some
    identifiable protected property interest (a dedication of property or the payment of
    money) as a condition of approval.' (California Building, 61 Cal.4th at p. 460, italics
    added.)" (Beach & Bluff 
    Conservancy, supra
    , 28 Cal.App.5th at p. 271.) In Beach &
    Bluff Conservancy this court specifically considered a requirement in Solana Beach's
    LCP that all permits for ocean front development on a bluff " 'shall require the property
    owner [to] record a deed restriction against the property that expressly waives any future
    right that may exist pursuant to Section 30235 of the Coastal Act to new or additional
    bluff retention devices.' " (Id. at p. 270.) We concluded that the unconstitutional
    conditions doctrine did not apply because no conveyance of a property interest or
    payment of money was involved. We explained, "[the provision in Solana Beach's LCP]
    does not require a conveyance of money or property; it requires the property owner to
    the public beach where a seawall would likely be constructed. Thus, a permit to build a
    seawall would likely involve obtaining permission to undertake construction on a public
    beach—a complicated matter that likely would require additional government
    involvement and approval.
    39
    record a deed restriction against the property that expressly waives any future right under
    [Public Resources Code,] section 30235 to new or additional bluff retention devices.
    Because [the provision] simply restricts the use of property without demanding an
    exaction of a property interest or money as a condition of approval, the unconstitutional
    conditions doctrine does not apply." (Beach & Bluff Conservancy, at p. 271.) The same
    reasoning applies here. Special condition 3.a does not require a conveyance of a property
    interest or the payment of money; it simply requires an agreement that no seawall will
    ever be constructed to protect the structure that the Lindstroms propose to build on the
    bluff.
    Even without reliance on the unconstitutional conditions doctrine, an
    unconstitutional taking may occur in certain instances when the government imposes a
    land use regulation. As the Supreme Court has explained, " 'while property may be
    regulated to a certain extent, if regulation goes too far it will be recognized as a taking.' "
    (Lucas v. South Carolina Coastal Council (1992) 
    505 U.S. 1003
    , 1014 (Lucas).)
    Although " 'regulatory takings' jurisprudence [has] generally eschewed any ' "set
    formula" ' for determining how far is too far, preferring to 'engag[e] in . . . essentially ad
    hoc, factual inquiries' " there are "at least two discrete categories of regulatory action as
    compensable without case-specific inquiry into the public interest advanced in support of
    the restraint. The first encompasses regulations that compel the property owner to suffer
    a physical 'invasion' of his property." (Id. at p. 1015.) "The second situation . . . is where
    regulation denies all economically beneficial or productive use of land." (Ibid.)
    40
    Apparently referring to the foregoing takings clause jurisprudence, the Lindstroms
    argue that special condition 3.a constitutes a taking because "if it ultimately becomes
    necessary to protect the . . . home from danger of erosion" the special condition "would
    effectively take their property for public use, as dangerous conditions would prevent the
    Lindstroms (or their successors) from continuing to reside in their home, and they would
    be barred from any opportunity to stabilize the bluff." This possible scenario, the
    Lindstroms argue, "constitutes the imposition of an unconstitutional taking, without
    compensation, at some point in the unknown future."
    However, neither situation that the Supreme Court has identified as categorically
    establishing an unconstitutional taking based on government regulation of land is present
    here. 
    (Lucas, supra
    , 505 U.S. at p. 1015.)
    First, special condition 3.a does not involve any physical invasion of the
    Lindstroms' property by the government. 
    (Lucas, supra
    , 505 U.S. at p. 1015.) Although
    the bluff may eventually recede without the construction of a seawall, that condition
    would be caused by forces of nature, not by governmental intrusion.
    Second, the Lindstroms cannot establish that special condition 3.a would deny
    them all economically beneficial or productive use of their land. 
    (Lucas, supra
    , 505 U.S.
    at p. 1015.) As the Commission observed, the Lindstroms will be able to build a
    significant size home on the Lot. Although the structure on the bluff may eventually, as
    the years progress, become uninhabitable due to bluff failure, the Lindstroms or their
    successors will still own the real property. At an appropriate time in the distant future
    after the bluff recedes, it is possible that the structure the Lindstroms built could be
    41
    replaced and located on a more stable part of the Lot. At that time, the appropriate
    governmental authorities can make a decision about what use of the real property is safe
    and appropriate under existing conditions and in consideration of the property owners'
    rights under the takings clause to make economically beneficial use of their land.
    Therefore, the Lindstroms cannot establish that special condition 3.a deprives them of all
    economically beneficial use of their real property.33
    In sum, we conclude that the Commission did not abuse its discretion or violate
    the takings clause in imposing special condition 3.a. The trial court accordingly erred in
    granting relief to the Lindstroms on special condition 3.a.
    33      We note that in addition to the two categorical types of regulatory takings
    resulting from land use restrictions, the Supreme Court has also described a multifactor
    approach. "Where a regulation places limitations on land that fall short of eliminating all
    economically beneficial use, a taking nonetheless may have occurred, depending on a
    complex of factors including the regulation's economic effect on the landowner, the
    extent to which the regulation interferes with reasonable investment-backed expectations,
    and the character of the government action." (Palazzolo v. Rhode Island (2001) 
    533 U.S. 606
    , 617, italics added, citing Penn Central Transp. Co. v. City of New York, 
    438 U.S. 104
    , 124.) The Lindstroms make no attempt to show that special condition 3.a
    constitutes a taking under this multifactor approach. Moreover, we do not attempt to
    undertake such an analysis here as it is not ripe in that it depends on many future
    variables and contingencies regarding the possible condition of the bluff after years of
    erosion and the extent of the economically beneficial use that could be made of the Lot at
    that time. " ' "It follows from the nature of a regulatory takings claim that an essential
    prerequisite to its assertion is a final and authoritative determination of the type and
    intensity of development legally permitted on the subject property. A court cannot
    determine whether a regulation has gone 'too far' unless it knows how far the regulation
    goes." ' " (Dryden Oaks, LLC v. San Diego County Regional Airport Authority (2017) 16
    Cal.App.5th 383, 396.)
    42
    4.     Special Condition 3.b Is Overbroad and Therefore Unreasonable As
    Currently Drafted
    In their cross-appeal, the Lindstroms challenge the Commission's imposition of
    special condition 3.b, which states,
    "[3.b] By acceptance of this Permit, the applicants further agree, on behalf
    of themselves and all successors and assigns, that the landowner shall
    remove the development authorized by this Permit, including the residence
    and foundation, if any government agency has ordered that the structures
    are not to be occupied due to any of the hazards identified above. In the
    event that portions of the development fall to the beach before they are
    removed, the landowner shall remove all recoverable debris associated with
    the development from the beach and ocean and lawfully dispose of the
    material in an approved disposal site. Such removal shall require a coastal
    development permit."
    The Lindstroms argue that this special condition is impermissible because the
    City's LCP does not give the Commission the authority to impose it. In advancing this
    argument, the Lindstroms acknowledge that the City's LCP touches upon the subject of
    the removal of unsafe structures built on a coastal bluff. Specifically, the LCP states that
    "[a]ny new construction shall be specifically designed and constructed such that it could
    be removed in the event of endangerment . . . ." (Encinitas Mun. Code,
    § 30.34.020B.1.a.)34 However, the Lindstroms point out that this provision "has only to
    do with building design and construction" and "does not state or imply that the
    homeowners must remove their home" when certain conditions arise.
    34      Similarly, another provision in the City's LCP states with respect to coastal bluffs:
    "In all cases, all new construction shall be specifically designed and constructed such that
    it could be removed in the event of endangerment." (Encinitas General Plan and Local
    Coastal Program Land Use Plan, Public Safety Element, Policy 1.6(f).)
    43
    The unstated premise of the Lindstroms' argument is that the Commission is not
    entitled to impose special conditions unless those conditions are expressly authorized by
    the City's LCP. However, that premise fails, because, as we have explained, the Coastal
    Act gives the Commission authority to impose "reasonable terms and conditions" on
    "[a]ny permit that is . . . approved on appeal, . . . in order to ensure that such
    development or action will be in accordance with the provisions of this division." (Pub.
    Resources Code, § 30607.) Although the permit conditions imposed by the Commission
    on appeal must not be inconsistent with the local government's LCP and the Coastal Act
    (
    Schneider, supra
    , 140 Cal.App.4th at pp. 1345-1348), and must be reasonable, they need
    not be expressly authorized by the LCP.
    Here, special condition 3.b is consistent with the City's LCP. As we have quoted
    above, the City's LCP requires that blufftop construction be designed so that can be
    removed in the event of endangerment. Special condition 3.c is consistent with this
    provision, as it furthers the apparent intent behind it. There would be little reason for a
    coastal development permit to require that a structure be designed so that it can be
    removed in the event of endangerment if the permit does not also contain a provision to
    effectuate the removal when endangerment arises.
    A special condition imposed by the Commission must also be reasonable. (Pub.
    Resources Code, § 30607.) The Lindstroms argue that special condition 3.b is not
    reasonable for two reasons, although they frame the argument in terms of due process.
    First, focusing on the breadth of the language in special condition 3.b, the
    Lindstroms argue that it violates their right to procedural due process because "(1) it
    44
    allows 'any government agency' —regardless of what substantive standards and
    procedural rules do or do not apply to such unknown agency—to order the Lindstroms to
    vacate and remove their home; (2) it does not require such agency to provide any legal or
    factual basis for its order; (3) it does not require any prior notice to the Lindstroms; (4) it
    does not require any sort of individualized hearing; and (5) it does not provide for any
    means of reviewing or contesting the agency's order."35
    Second, also focusing on the breadth of the language in special condition 3.b, the
    Lindstroms contend that the condition violates their right to substantive due process
    because "it does not require the government to assert any justification for the removal of
    the house." According to the Lindstroms,
    "Though the condition requires the presence of one or more 'hazards'
    as a prerequisite for removal, it does not require the government to provide
    proof that such hazards exist or to find that such hazards are an imminent
    threat to cause serious injury to the house, its occupants, neighboring
    properties, or the public. Thus, under Special Condition 3(b), 'any
    government entity' could order the house 'not to be occupied' without any
    justification, or with unsupported claims about the impact of projected sea-
    level rise and future erosion of the bluff. Such an order would trigger the
    requirement that the Lindstroms remove their house and foundation, even if
    they were not likely to be affected for many decades into the future.
    Moreover, Special Condition 3(b) does not require the government to find
    that a purported hazard is permanent and unavoidable; the condition could
    theoretically be triggered by a temporary, or even minor, 'hazard.'
    35       "The federal and state Constitutions prohibit the government from depriving
    persons of property without due process of law. (U.S. Const., 5th Amend.; Cal. Const.,
    art. I, § 7, subd. (a).) Adjudicative governmental actions that implicate significant or
    substantial property deprivation generally require the procedural due process protections
    of reasonable notice and an opportunity to be heard." (Venice Coalition to Preserve
    Unique Community Character v. City of Los Angeles (2019) 31 Cal.App.5th 42, 49.)
    45
    "Indeed, the 'hazards' that would trigger Special Condition 3(b) are
    defined extremely vaguely and overbroadly. The condition references 'any
    of the hazards identified above' but does not specify which hazards they
    are. . . . The previous paragraph describes threats of 'damage or
    destruction from waves, erosion, storm conditions, bluff retreat, landslides,
    or other natural hazards in the future.' . . . Assuming these are the hazards
    that the Commission has in mind, such 'hazards' are always present in a
    coastal environment. Special Condition 3(b) thus is overbroad. As noted,
    it would allow any government entity to declare at any time that, due to
    projected sea-level rise, the Lindstroms' home should not be occupied
    because it is threatened with potential 'damage or destruction from waves,
    erosion, storm conditions, bluff retreat, landslides, or other natural hazards
    in the future.' . . . The Lindstroms would then be forced to remove their
    home and foundation—presumably at their own expense."36
    In response to the Lindstroms' procedural due process and substantive due process
    arguments, the Commission argues that the Lindstroms have misapprehended the purpose
    of special condition 3.b. According to the Commission, "the condition addresses only
    what happens after the [C]ity condemns the home." The Commission contends that the
    procedures and standards that the City must follow in condemning a home and
    determining it to be uninhabitable are set forth in separate laws and ordinances, and that
    those laws provide the Lindstroms with the required procedural and substantive due
    process protections. Implicit in the Commission's argument is an assumption that special
    condition 3.b is intended to apply only when the appropriate governmental agency makes
    36      " 'Substantive due process protects against "arbitrary legislative action, even
    though the person whom it is sought to deprive of his right to life, liberty or property is
    afforded the fairest of procedural safeguards." [Citation.] ' ". . . Even where state
    officials have allegedly violated state law or administrative procedures, such violations
    do not ordinarily rise to the level of a constitutional deprivation." ' [Citation] Rather,
    '[a] substantive due process violation requires some form of outrageous or egregious
    conduct constituting a "true abuse of power." ' " (Bottini v. City of San Diego (2018) 27
    Cal.App.5th 281, 315.)
    46
    a valid order under existing law, after all possible appeals or writ proceedings regarding
    the agency's decision are final, that the Lindstroms' home is currently and permanently
    uninhabitable due to bluff instability caused by natural forces. Indeed, the Commission's
    findings and declarations in its administrative decision suggests this more narrow focus:
    "Should the blufftop residence become unstable or structurally unsound, without
    construction of new shoreline armoring, or if any government agency orders that the
    structure is not to be occupied due to failure and erosion of the bluff, the applicants must
    agree to remove the subject structure, in part or entirely and remove and dispose of any
    debris that fall to the beach."
    In response, the Lindstroms state that although they understand the Commission's
    position, "[i]f, as the Commission suggests, the purpose of the condition is simply to
    ensure that the structures do not become a nuisance after they have been condemned
    according to law, then the Commission should have drafted the language much more
    narrowly and precisely." We agree with the Lindstroms that in light of the Commission's
    intent in requiring special condition 3.b, the language of the special condition is not well
    drafted and does not reasonably achieve what the Commission intended. As we will
    explain, in two respects the language of special condition 3.b could be interpreted to
    require the Lindstroms to remove the home from the Lot under circumstances that are not
    reasonable and are not related to any concern for bluff stability.
    First, although the Commission states that special condition 3.b is meant to apply
    if the home is made uninhabitable "due to failure and erosion of the bluff," the special
    condition, when read literally, could apply much more broadly. Specifically, special
    47
    condition 3.b requires the Lindstroms to agree that "the landowner shall remove the
    development authorized by this Permit, including the residence and foundation, if any
    government agency has ordered that the structures are not to be occupied due to any of
    the hazards identified above." (Italics added.) The "hazards identified above" appear in
    special condition 3.a, which refers to "damage or destruction from waves, erosion, storm
    conditions, bluff retreat, landslides, or other natural hazards in the future." (Italics
    added.) Because the hazards at issue are broadly and inclusively defined to include
    "other natural hazards," and are not limited to natural hazards relating to bluff instability,
    when read literally, special condition 3.b could require the Lindstroms to remove their
    home from the Lot even if it is determined to be uninhabitable due to natural hazards that
    have nothing at all to do with bluff instability or its blufftop location. For example,
    special condition 3.b might be interpreted to require removal of the home if it became
    uninhabitable from strong winds, fire, damage from a falling tree, toxic mold or rodent
    infestation, as each of those problems might be described as a "natural hazard."
    Second, special condition 3.b, when read literally, would require the Lindstroms to
    remove their home from the Lot even if a government agency determines that the
    Lindstroms' home is only temporarily uninhabitable, and even if the dangerous condition
    can be remedied in some manner (not including any bluff or shoreline protective device
    that is prohibited by special condition 3.a.), without tearing down and removing the
    home. Specifically, the special condition states that "the landowner shall remove the
    development authorized by this Permit, including the residence and foundation, if any
    government agency has ordered that the structures are not to be occupied . . . ," but it
    48
    does not require that the government make a determination that the structures are
    permanently uninhabitable and must be condemned because they cannot be made
    habitable through any means short of constructing bluff or shoreline protective devices.37
    We therefore conclude that based on the two considerations set forth above, as
    currently drafted special condition 3.b is not a reasonable special condition that the
    Commission is authorized to impose under Public Resources Code section 30607.
    Accordingly, a writ of mandate should issue requiring that special condition 3.b be
    deleted unless it is revised to clarify that the landowner is required to remove the
    development authorized by the permit if the City or any other government agency with
    legal jurisdiction has issued a final order, after any appeal or writ proceedings,
    determining that the structures are currently and permanently unsafe for occupancy due to
    bluff failure or erosion of the bluff, and that there are no measures that could make the
    structures suitable for habitation without the use of bluff or shoreline protective devices.
    5.     The Commission Did Not Abuse Its Discretion in Imposing Special
    Condition 3.c
    Finally, the Lindstroms' cross-appeal also challenges special condition 3.c, which
    provides,
    "[3.c] In the event the edge of the bluff recedes to within 10 feet of the
    principal residence but no government agency has ordered that the
    structures not be occupied, a geotechnical investigation shall be prepared by
    a licensed coastal engineer and geologist retained by the applicants, that
    37     In addition, the Commission acknowledges that the government agency decision
    referred to in special condition 3.b is intended to be a final agency decision after any
    possible writs or appeals are resolved. The language in special condition 3.b should
    therefore be revised to more expressly reflect that position.
    49
    addresses whether any portions of the residence are threatened by wave,
    erosion, storm conditions, or other natural hazards. The report shall
    identify all those immediate or potential future measures that could stabilize
    the principal residence without shore or bluff protection, including but not
    limited to removal or relocation of portions of the residence. The report
    shall be submitted to the Executive Director and the appropriate local
    government official. If the geotechnical report concludes that the residence
    or any portion of the residence is unsafe for occupancy, the permittee shall,
    within 90 days of submitting the report, apply for a coastal development
    permit amendment to remedy the hazard, which shall include removal of
    the threatened portion of the structure.
    In challenging this special condition, the Lindstroms incorporate arguments that
    we have already considered and rejected in connection with other special conditions.
    Specifically, we have determined that the Commission may require the Lindstroms to
    waive any future right to build a seawall to protect the structure they propose to build on
    the Lot, and we have determined that the Commission has the authority to impose special
    conditions even though they are not expressly required by the City's LCP, as long as they
    are not inconsistent with the LCP or the Coastal Act and are otherwise reasonable.38
    In their reply brief to their cross-appeal, the Lindstroms also make a cursory
    argument that special condition 3.c is generally unreasonable and would force the
    Lindstroms to "sacrifice their constitutional rights to substantive and procedural due
    process." However, the argument is not developed, and we do not perceive any of the
    problems with the wording of special condition 3.c that are present in special condition
    3.b. Indeed, unlike special condition 3.b, special condition 3.c acknowledges that
    38      Special condition 3.c is not inconsistent with the City's LCP. Like special
    condition 3.b, special condition 3.c relates to the requirement in the City's LCP that bluff
    top construction "be specifically designed and constructed such that it could be removed
    in the event of endangerment . . . ." (Encinitas Mun. Code, § 30.34.020B.1.a.)
    50
    measures short of removal of the structure may be feasible to make it habitable if it is
    threatened by bluff failure.
    DISPOSITION
    The judgment is reversed and the trial court's writ of administrative mandate is
    vacated. We remand with directions for the trial court to issue a new writ of
    administrative mandate ordering the Commission to either delete special condition 3.b or
    to revise it to provide that the landowner is required to remove the development
    authorized by the permit if the City or any other government agency with legal
    jurisdiction has issued a final order, after any appeal or writ proceedings, determining
    that the structures are currently and permanently unsafe for occupancy due to bluff failure
    or erosion of the bluff, and that there are no measures that could make the structures
    suitable for habitation without the use of bluff or shoreline protective devices. In all
    other respects, the special conditions set forth in the Commission's
    decision may remain in effect.
    51
    IRION, J.
    WE CONCUR:
    HALLER, Acting P. J.
    GUERRERO, J.
    52