Carlsbad homeowner is fighting a multi-million dollar fine from the Coastal Commission

from Deborah BrennanCalMatters

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Carlsbad homeowner John Levy’s lawsuit against the Coastal Commission challenges penalties for two locked gates, native vegetation, a wedding venue and a pickleball court. He also challenged the commission’s authority to impose multimillion-dollar fines without judicial review.

The commission, which protects public access and environmental quality in the coastal zone, a strip of land that follows California’s coastline, accused Levy of blocking public access to the beach, removing shorebird habitat and illegally installing a pickleball court. He fined him $2.4 million for those crimes.

Levy claims the two gates the commission wants him to open have complicated property rights issues. He said he followed environmental protections, and even though he built the courthouse without the proper permits, he is working with the city to fix that.

These are common questions before the commission related to how the public can access waterfront property and what is being built there. But Levi complaint goes further, alleging that the powerful commission violated his due process rights by imposing high fines without judicial review and collecting fines that funded its own programs.

“They’re the investigator, they’re the judge, they’re the jury, and they’re also the treasurer,” Levy said.

Commission staff and members did not respond to questions from CalMatters, citing the pending litigation. At the October hearing, Rob Moddelmog, enforcement counsel for the Coastal Commission, said Levy could have avoided the years-long conflict by complying with the California Coastal Act.

“At any point in that time period, Mr. Levy could have simply opened his gate and removed his padlock from another gate within the easements and removed the development from the wetland buffer and avoided this entire procedure,” Moddelmog told commissioners. “But after all this time, and after considerable effort by your staff, he chose not to.”

Trouble in Levelland

Levy’s property is located on the corner of Buena Vista Lagoon in Carlsbad. He bought the land and obtained a waterfront development permit to build the estate he calls “Levyland” in 1998. Almost immediately, he began feuding with the commission over the terms of the permit.

Almost all beaches in California are open to the public, and the commission can order property owners to provide beach access throughout their land. Levy says the permit requires “side access,” meaning visitors can enter the beach from adjacent parts of the shoreline. The commission claims it does not accommodate beachgoers with disabilities and says Levy must provide access from the street, Mountain View Drive.

There are two trails that would allow beachgoers to pass through Levy’s property. One is a beach road past Levy’s property, which is owned by the neighboring homeowners association. The other is a footpath on his land that runs along the lagoon.

Both are blocked by gates that have been mostly closed for a quarter of a century, in violation of his permit, the commission said.

“We’ve been asking Mr. Levy to comply with the Coastal Act and his (coastal development permit) for years and he has refused,” Moddelmog said. “And that is why we are compelled to bring you this order today to force Mr. Levy to finally come to terms with his wrongdoing.”

Levy says he’s willing to provide public access, but is hampered by property and easement issues. When he built the home, Levy put a gate on the beach road with HOA permission. Now he said he needs the association’s permission to remove the gate from his land.

He also agreed to give the city of Carlsbad an easement over the boardwalk so visitors can walk to the beach. The commission argued that the easement was there, so the gate should be open. But Levy and Carlsbad officials say the city never accepted it.

“That’s one of the main issues at the heart of this is whether there really is an easement,” said Jeremy Talcott, an attorney with the Pacific Legal Foundation, a public interest law firm that advocates for property rights and is representing Levy in this case.

Carlsbad officials did not comment for this story, citing pending litigation. But in a letter to the commission, Carlsbad Community Development Director Jeff Murphy and City Attorney Marisa Kauecki said Carlsbad questioned the commission’s authority to require the gate’s removal and said the city had not approved the easement.

“Currently, the public does not have access to this trail easement, which was proposed because it was not accepted by the city,” they wrote.

Levy is required to open the gate and provide access to the trail regardless of the city’s involvement, commission officials said. But without the city taking responsibility for the trail’s safety and maintenance, it’s too much of a responsibility to let the public onto its land, Levy said.

“If I was actually guilty of blocking public access or failing to comply with my coastal permit, then I would have put up or settled,” he said. “But I didn’t.”

The commission also fined Levy for waterfront development violations: unauthorized alterations to his property.

His property is on both sides of the lagoon and provides habitat for the endangered Ridgeway’s Sandpiper, California Least Tern, and Sandpiper. It was required to provide a 100-foot buffer of native vegetation for shorebirds. The commission accused Levy, who now lives in New Zealand, of renting out his home as a wedding venue and removing native vegetation to clear a parking lot for events.

He also built a pickleball court on the property without permission. Moddelmog said commission staff aren’t necessarily opposed to it, but would recommend it be located further from the lagoon.

Levy said he does not operate a wedding venue, but does allow weddings at his rental property. And he said he cleared invasive plants from the shoreline and replaced them with a native seed mix. A self-described “keen pickleball player,” he admitted it was a mistake to build the course without a permit, but is working to get a permit “after the fact.”

Nonprofits including the Surfrider Foundation, Disability Rights California and Buena Vista Audubon urged the commission to approve penalties against Levy.

“It is time to end these spectacular violations of coastal access and wetland habitat once and for all,” Surfrider officials wrote.

But Talcott said those title issues should be decided in court, not by the same state agency that investigated the matter and issued the violation notice.

“I don’t think this is an issue that can be resolved in a committee hearing,” he said. “There is no neutral judge in this hearing. They are not a judge. They are a commission charged with maximizing public access and empowered to investigate, prosecute and adjudicate violations of the Coastal Act.”

Who should adjudicate coastal conflicts?

For more than half a century, the Coastal Commission has protected coastal ecosystems and kept beaches open to all Californians. Critics say it is, too limited residential construction in coastal areas and was given extensive powers to impose heavy fines.

The commission can property owners fined $11,250 per day for each violation – up to five years. In protracted disputes that can reach millions or even tens of millions of dollars. In Levy’s case, Moddelmog said staff “recommended a conservative approach” and grouped all of his alleged public access violations into one $1 million penalty and the coastal development violations into one $1.4 million fine.

The sanctions lack the due process protections of criminal court proceedings, Levy claims in his appeal. For example, committee hearings do not include the right to testify under oath, to certify evidence or a subpoena, and to cross-examine witnesses, Talcott said.

“There are none of the procedures involved in a criminal hearing,” he said.

The commission also has a conflict of interest in issuing its own penalties, the complaint alleges, because the money collected from those fines funds its own enforcement and other programs.

Mary Jo Wiggins, a San Diego State University law professor who specializes in real estate and land use, said it’s not unusual for regulatory agencies to impose expensive fines.

“Public bodies are making decisions that are similar in nature to what the California Coastal Commission is doing here,” she said. “It’s really more about the scope of their authority than whether they have the authority to do that or not.”

For example, on California Air Resources Board can rely on administrative law judges instead of civil lawsuits to impose fines totaling up to $100,000 or $300,000 for certain fuel violations. In 2023, the legislature allowed the State Water Resources Control Board to fine water violators to $10,000 a day plus $2,500 for each acre-foot of water taken.

Levy’s complaint alleges that the seven-figure fines against him constitute “quasi-criminal” sanctions that should receive judicial review. Wiggins said that’s a valid argument.

“They’re not just compensatory, they’re punitive,” she said. “It requires a higher level of review that the commission does not provide because it reviews its own fines.”

If the case is not resolved in their favor, Talcott said Levy and the foundation will appeal to the state or even federal Supreme Court.

Precedent may not be in Levy’s favor. In 2016, the Coastal Commission fined Warren and Henny Lent $4.185 million for waterfront access violations at their Malibu home. In 2021, an appeals court upheld the sentence, and the state and federal supreme courts declined to hear the case.

Levy said he’s willing to go as far as he can to challenge the Coastal Commission.

“I’m 74 years old and I don’t care how much I have to spend, but I’m going to bring this to the fore in the US and California,” he said.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.