A Carlsbad homeowner is fighting a multi-million dollar fine over beach access and a pickleball court

Carlsbad homeowner John Levy’s lawsuit against the Coastal Commission disputes penalties over two locked gates, native vegetation, a wedding site and pickleball court. It also challenges the commission’s authority to exact multi-million 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 shoreline, accused Levy of blocking public access to the beach, removing shorebird habitat and illegally installing the pickleball court. It fined him $2.4 million for those offenses.

Levy contends the two gates that the commission wants him to open have complex property rights issues. He said he has honored environmental protections, and while he built the court without proper permits, he’s working with the city to fix that.

Those are ordinary matters before the commission, concerning how the public can access coastal property and what gets built there. But Levy’s complaint goes further, arguing that the powerful commission violated his due process rights by imposing steep fines without court oversight, and collecting penalties that fund its own programs. 

“They’re the investigator, they’re the judge, they’re the jury and also they’re 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 period of time, Mr. Levy could have simply opened his gate and removed his padlock from another gate within the easements, and removed development from the wetland buffer, and avoided this entire proceeding,”   Moddelmog told commissioners. “But after all this time, and after considerable effort by your staff, he has chosen not to.”

Trouble in Levyland

Levy’s property sits at the corner of Buena Vista Lagoon in Carlsbad. He bought the land and obtained a coastal development permit to build the estate he calls “Levyland” in 1998. Almost immediately he began feuding with the commission over permit conditions.

Nearly all beaches in California are open to the public, and the commission can order property owners to provide beach access across their land. Levy says the permit requires “lateral access,” meaning visitors can enter the beach from adjacent parts of the shoreline. The commission argues that doesn’t accommodate disabled beachgoers, and says Levy must provide access from the street, Mountain View Drive.

There are two paths that could allow beachgoers to get across Levy’s property. One is a road to the beach along Levy’s property, which is owned by the neighboring homeowners association. The other is a foot trail on his land, which travels 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 this is why we are forced to bring this order to you today to compel Mr. Levy to finally address his violations.”

Levy says he’s willing to provide public access but is hamstrung by ownership and easement issues. When he built the home, Levy installed a gate at the road to the beach, with permission of the HOA. Now he said he needs the association’s permission to remove the gate from its land.

He also agreed to give the city of Carlsbad an easement over the footpath, so visitors could walk to the beach. The commission maintains that the easement is in place, so the gate must be open. But Levy and Carlsbad officials say the city never accepted it.

“That’s one of the fundamental questions underlying this is whether there’s truly an easement in place,” 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 didn’t comment for this story, citing pending litigation. But in a letter to the commission, Carlsbad community development director Jeff Murphy and city prosecutor Marissa Kaweki stated that Carlsbad questions the commission’s authority to require removal of the gate and said the city hasn’t approved the easement.

“The public currently cannot access this trail easement that has been offered because it has not been accepted by the city,” they wrote.

Levy is required to open the gate and provide trail access regardless of the city’s participation, commission staff argued. But without the city taking charge of safety and maintenance for the trail, it’s too much of a liability to let the public on his land, Levy said.

“If in fact I was guilty of blocking public access or not being compliant with my coastal permit, then I would have acquiesced, or settled,” he said. “But I didn’t.”

The commission also fined Levy for coastal development violations: unpermitted changes to his property.

His property fronts the lagoon on two sides, and provides habitat for the endangered light-footed Ridgeway’s rail, California least tern and light-footed clapper rail. He 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 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 didn’t necessarily oppose that, but would have recommended siting it further from the lagoon.

Levy said he didn’t operate a wedding venue, but allowed weddings at his rental property. And he said he cleared invasive plants from the shoreline and replaced them with native seed mix. A self-described “avid pickleball player,” he acknowledged it was a mistake to build the court without permission, but is working to obtain an “after-the-fact” permit.

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

“It is time to put a stop to these egregious coastal access and wetland habitat violations, once and for all,” Surfrider officials wrote.

But Talcott said these questions of property law should be decided in court, not by the same government body that investigated the matter and issued the notice of violation.

“I don’t think that’s the sort of question that can be resolved in a commission hearing,” he said. “There’s not a neutral adjudicator in that hearing. They’re not a judge. They’re a commission tasked with maximizing public access, and empowered to investigate, prosecute and judge 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 has also restricted housing construction in coastal areas and gained sweeping authority to impose steep fines.

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

The penalties lack the due process protections of criminal court proceedings, Levy argued in his complaint. For instance, commission hearings don’t include the right to testify under oath, authenticate evidence or subpoena and cross-examine witnesses, Talcott said.

“It has none of the procedures involved in a criminal hearing,” he said.

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

Mary Jo Wiggins, a law professor at University of San Diego who specializes in real estate and land use, said it’s not uncommon for regulatory agencies to administer costly 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 a matter of the scope of their power rather than whether they have the power to do this or not.”

For instance, the California Air Resources Board may rely on administrative law judges in lieu of civil court proceedings to impose fines totalling up to $100,000, or $300,000 for some fuel violations. In 2023 the legislature authorized the State Water Resources Control Board to fine water violators up to $10,000 per day plus $2,500 for every acre-foot of water taken.

Levy’s complaint argues that the seven-figure fines against him amount to “quasi-criminal” penalties that should receive judicial oversight. Wiggins said that’s a credible argument.

“They’re not just compensatory, they’re punitive,” she said. “That requires a higher level of review that the commission doesn’t provide because it’s reviewing its own fines.”

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

Case precedent may not be in Levy’s favor. In 2016 the Coastal Commission fined Warren and Henny Lent $4.185 million for coastal access violations at their Malibu home. In 2021 an appeals court upheld the penalty, and the state and federal Supreme Courts declined to review the case.

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

“I’m 74 and I don’t care how much I have to spend, but I’m going to bring this to the forefront of the U.S. and California,” he said.