I’ve written frequently in my blog about the practical effects and critical function of land use laws and the dire consequences that can result when even the smallest details get overlooked. Thorny legal issues can arise when those regulations cross the shadowy line between permissible restrictions and impermissible takings. In a decision that highlights this continuing opacity, the California Supreme Court has ruled that two property owners who filed timely objections to construction mitigation conditions, but who complied with those restrictions and built their projects anyway, forfeited their right to challenge those requirements by proceeding.
The two homeowners in this case owned adjacent land in the City of Encinitas, atop a coastal bluff in an area subject to earth movement, and shared a seawall built in 1986. This seawall consisted of wooden poles dug into the base of the bluff and an erosion control structure located at mid-bluff, along with a common stairway that served as the sole access to the beach. The California Coastal Commission approved a retroactive coastal development permit for the construction of the seawall and stairway in 1989.
Nearly 20 years later, the two owners applied to the city for permission to replace the deteriorating seawall and mid-bluff structure with an integrated concrete wall, and to replace the lower part of the stairway. Subject to the issuance of a coastal development permit by the commission, the city approved the project in 2009. While this permit was pending, however, the bluff below one of the owner’s homes collapsed due to severe weather, resulting in the destruction of parts of the seawall, mid-bluff structure, and stairway.
The commission ultimately granted the permit, but imposed a number of conditions, and required the owners to record the conditions against their property as covenants, conditions and restrictions on the use and enjoyment of their land before the permit could be issued. The owners objected to three of the conditions that the commission imposed:
- The lower stairway could not be rebuilt.
- The permit would expire in 20 years, and barred future development at the top of the bluff from relying on the seawall for stability or protection.
- Before the end of the 20-year period, the owners would have to apply for a new permit to either remove the seawall, change its size or its configuration, or extend the authorization period.
The owners filed a petition for administrative mandamus challenging these conditions, but then proceeded to satisfy all of the other permit conditions, obtain the permit, and build the seawall.
The trial court sided with the owners and issued a writ directing the commission to remove the challenged conditions. On appeal, a divided Fourth District panel reversed, with a majority ruling that the owners had waived their claims and that the permit conditions were valid. The California Supreme Court granted review, and concluded that the owners had forfeited their claims, thus rendering it unnecessary to address the legality of the challenged conditions.
The Court determined that the two owners effectively forfeited the right to pursue their objections, despite having initially been properly asserted, by accepting the benefits of the permit and building the seawall. In reliance on the equitable maxim, “He who takes the benefit must bear the burden,” the Court cited a line of cases dealing with challenges to permit conditions in which the protesting parties were found to have waived their disputes. For the Court, the critical issue was that the two owners proceeded with the project without first getting a court to rule on their objections; the owners reaped the benefits of the permit when they built the seawall, and cannot now grumble about its burdens.
Finally, the owners argued that they should be allowed to challenge the permit conditions during construction of the seawall because those conditions did not impact its design or construction. In response, the Court characterized the owners’ position as essentially a request to extend the scope of the Mitigation Fee Act beyond monetary exactions to these types of “non-construction” land use restrictions. The Court reasoned that such an extension would end up creating a new exception to the forfeiture rule, virtually swallowing the general rule, and concluded that such a decision was best left to the legislature.
In considering the Court’s reasoning in this case, it is worth noting the distinctions that the Court acknowledged between different types of land use restrictions and the proper means of challenging those various limitations prescribed by statute and by case law. While monetary exactions will fall squarely under the Mitigation Fee Act, other types of impositions may be more difficult to address, and should be carefully analyzed to ensure that the proper remedy is pursued. Otherwise, disaster can ensue.
With regard to permit conditions, project proponents should review such conditions closely and work with local building and planning staff to resolve their issues, if possible, prior to finalizing a permit. If these issues cannot be settled prior to permit issuance, project proponents may wish to seek agreement with local authorities to ensure that they have preserved their right to challenge the conditions while the project is being built. Lacking such an agreement, the objections must be litigated before proceeding with the project, or they risk being forfeited by the courts.
The case is Lynch v. California Coastal Commission, California Supreme Court Case No. S221980, decided July 7, 2017.