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Stairway to Heaven or Stairway to Government Overreach: Is Converting Private Stairways into Public Beach Access a Taking?

Stairway to Heaven or Stairway to Government Overreach: Is Converting Private Stairways into Public Beach Access a Taking?

Logan Harrell 

Residents of the City of Solana Beach enjoy the Southern California climate while sitting atop beautiful bluffs overlooking the Pacific Ocean.[1] This tranquil location creates prime real estate for seaside cottages and condominiums valued in the millions.[2] Taking advantage of their proximity to the ocean, private landowners build stairways along the bluff face so they can gain access to the beaches below.[3]

Currently a battle between public and private property interests is taking place in the City of Solana Beach after the city adopted a Local Coastal Program in 2013.[4] The city created the Local Coastal Program––a requirement of the California Coastal Act (the Act)[5]––after consulting with the California Coastal Commission (Commission) for thirteen long years.[6] Consistent with the Act, the program aspires to maximize public beach access with several land use policies.[7] Immediately after the adoption, residents brought legal challenges against the program.[8] Represented by the Pacific Legal Foundation––an “organization [that] specializes in coastal property rights”––the Beach & Bluff Conservancy has lead the charge in challenging the program’s policies, describing the policies as “draconian.”[9] One particularly controversial policy is land use policy 2.60.5 (stairway access policy) that converts private beach access stairways into public access under three scenarios.[10] Although city council members defend the policy’s language to allow current private access to remain, the Beach & Bluff Conservancy still challenge the policy under the Fifth Amendment Takings Clause.[11]

This Note analyzes the City of Solana Beach’s stairway access policy under the Takings Clause. First, the Note introduces the takings doctrine and presents the process for distinguishing among the variety of takings claims. Second, it discusses the historical conflict between the Commission and private property owners to balance private and public rights. Specifically, this section will address the importance of public beach access in California and how the Commission traditionally uses permit conditions as the vehicle to maximize access. Third, the Note analyzes whether the stairway access policy results in a taking under the Nollan/Dolan standard. This section addresses how the policy’s language divides the policy by creating one scenario that does not violate the Takings Clause while the other two scenarios are likely takings that require compensation. The City will need to amend the language in the stairway access policy if it wants to pursue maximizing public beach access by converting private stairways without compensation. Finally, the Note provides conclusions on the effects to public beach access in Solana Beach and makes recommendations to salvage policy language for other municipalities to maximize public beach access without a taking.

Questions and inquiries regarding this Note may be forwarded to the author at


[1] General Information for Visitors, City of Solana Beach, (last visited Oct. 9, 2015).

[2] Phil Diehl, Bluff Maintenance Planned for Solana Beach, San Diego Union Trib. (Aug. 28, 2015, 5:18 PM),

[3] Id.

[4] David Ogul, Bluffs plan OK’d, but residents furious: Sea wall battle still raging in Solana Beach, San Diego Union Trib. (May 23, 2013, 12:59PM), (one resident describing the new land use policies as “unconscionable and unconstitutional taking of property,” despite council members trying to re-assure residents that their private property rights will not be impermissibly invaded).

[5] California Coastal Act of 1976, Pub. Res. Code § 30500 (2014) [hereinafter CCA].

[6] Ogul, supra note 4. 

[7] CCA § 30500(a).

[8] Stacy Brandt, New lawsuit challenges Solana Beach seawall, bluff restrictions, (Apr. 29, 2013, 3:02PM), (challenging the “unlawful anti-seawall policies” and policies that make maintaining private stairways difficult).

[9] Id.

[10] City of Solana Beach, Local Coastal Plan, ch. 2, § C, subsec. 3, Policy 2.60.5 (2014).

[11] Bianca Kaplanek, City Oks changes to land-use plan, Coast News Group (May 30, 2013); Second Amended Complaint at 12, Beach & Bluff Conservancy v. City of Solana Beach, No. 37-2013-00046561-CU-WM-NC (Ca. Super. Ct. filed Oct. 3, 2014).

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