• Land Use Attorney Capitola

CASE UPDATE: Coastal Permit Condition Requiring Beach/Coastal Access Easement Lacked Rational Nexus With Inland Construction Project.

In Bowman v. California Coastal Commission, (2014) —Cal.Rptr.3d– (2014 WL 5390057), the court held that the Coastal Commission and the trial court erred in imposing a lateral coastal access easement as a condition of approval of a coastal development permit (CDP) for the reconstruction of a barn, the remodel of a house, and installation of a new septic system.  This case involved two, successive CDP applications to make certain improvements at a single, 400-acre coastal property in San Luis Obispo County.  

The first application, which the owner submitted in 2002, was to connect an existing well to an existing house, to replace an existing septic tank, and to rehabilitate the house by rebuilding the backside and remodeling the interior.  In 2004 (after the original applicant died), the County finally approved the 2002 CDP application conditional upon the new owner offering to dedicate a lateral easement for public access along the mile-long shorefront of the property.  The new owner did not appeal the conditions imposed on the approval, but neither did it commence any construction under the CDP.   However, nine months later the new owner applied for a new CDP to do essentially everything that was contained in the 2002 CDP, plus the construction of a new barn to replace to an existing barn that collapsed.

The County approved this second application as well, but without the coastal access easement condition.  Sierra Club, the Surfrider Foundation, and two coastal commissioners appealed the County’s decision arguing that the County improperly eliminated the coastal easement condition that was imposed on the 2002 CDP, and the Coastal Commission, and then the trial court, agreed.

The new owner appealed the trial court decision, arguing that the 2002 coastal easement condition was never valid because it constituted an unlawful “exaction” of its property (i.e., a type of government “taking” without just compensation.  Under the so-called “Nollan/Dolan” test, a public entity may require an uncompensated exaction, such as an easement, as a condition of a development permit, but only where there is rational connection between the project impact and the condition of approval (i.e., a “nexus”), and only where there is “rough proportionality” between the severity of the project impact on the public interest and the condition being imposed.

In this case, the Coastal Commission conceded that there was no rational nexus and rough proportionality between one-mile-long lateral public access easement and the work on the private residence, which was located a mile from the coast.  Instead, it took the simple position that the new owner’s failure to appeal the 2002 conditional approval rendered the coastal easement condition final and binding, and that under the equitable doctrine of collateral estoppel, it was too late for the new owner to challenge the condition.   The court of appeal refused to apply collateral estoppel under the facts of this case, considering that neither owner ever did any work on the property under the 2002 CDP, and considering that the easement amounted to an unconstitutional taking, which the court thought the County implicitly recognized in omitting the condition from the 2004 CDP.

©2014 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
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