• Land Use Attorney Capitola

California Supreme Court Holds That Landowners Forfeited Their Right to Bring A Lawsuit Challenging Coastal Development Permit Conditions Imposed By The Coastal Commission By Accepting The Permit And Constructing The Project.

In Lynch v. Coastal Commission, 5 Cal.5th 470 (2017), the California Supreme Court held that California residents who began construction of a cliffside seawall and stairway project, for which they had obtained the requisite coastal development and building permits, forfeited their right to challenge conditions imposed on the coastal development.

In 2009, the City of Encinitas (City) granted to Plaintiffs, Frick and Lynch, who were neighbors, permits to build a new seawall and to replace the lower portion of the private wooden stairway leading from their respective homes down to the beach.  Final approval for the project required a coastal development permit from the California Coastal Commission (Commission).

In 2010, while Plaintiffs’ application for a coastal permit was pending, a powerful storm caused the bluff below the Lynch’s home to collapse, and destroyed part of the existing seawall and the lower portion of the existing stairway.  After the storm, the Plaintiffs sought a new coastal development permit from the Commission allowing for seawall demolition and the construction of a new tied-back seawall across both properties, and allowing for reconstruction of the lower stairway.  The Commission approved the new application but with numerous conditions, three of which the Plaintiffs challenged by filing a writ of mandamus action against the Commission California Code Civ. Proc., § 1094.5.  Plaintiffs challenged Special Condition No. 1(a), which prohibited any subsequent reconstruction of the new lower stairway; Special Condition No. 2, providing that the seawall permit would expire in 20 years; and Special condition No. 3, requiring Plaintiffs, before expiration of the 20-year period, to apply for a new permit to remove the seawall, change its size or configuration, or extend the authorization period.  However, while this litigation proceeded, Plaintiffs accepted the coastal permit, satisfied all other permit conditions, and built the seawall.

The California Supreme Court ultimately held that the Plaintiffs waived their objections and right to maintain a legal challenge to the conditions imposed by the Commission by accepting the permit conditions and commencing construction.  The Court stated that, “in the land use context, a landowner may not challenge a permit condition if he has acquiesced to it either by specific agreement, or by failure to challenge the condition while accepting the benefits afforded by the permit….Generally, challenges to allegedly unlawful conditions must be litigated in administrative mandate proceedings.”  Citing the equitable maxim that, “he who takes the benefit must bear the burden,” the Court also explained that because the plaintiffs had obtained all the benefits of their permit when they built the seawall, they were no longer able to contest its burdens.

Finally, the Court rejected Plaintiffs arguments that they should be allowed to pay for their permit “under protest” and proceed with the project while reserving their legal challenges, similar to challenges to development fees under the Mitigation Fee Act.  The Court explained that, “[c]reating an under protest exception would also potentially swallow the general rule that landowners must take the burdens along with the benefits of a permit. Permit applicants frequently accept conditions they dislike in order to obtain a permit. ‘If every owner who disagrees with the conditions of a permit could unilaterally decide to comply with them under protest, do the work, and file an action in inverse condemnation on the theory of economic coercion, complete chaos would result in the administration of this important aspect of municipal affairs.’  (Citation.)  An exception allowing applicants to challenge a permit’s restrictions after taking all of its benefits would change the dynamics of permit negotiations and would foster litigation.”

©2017 Miles J. Dolinger.  This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

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