• Land Use Attorney Capitola

CASE UPDATE: There Are No ‘Comply Under Protest’ Provisions For Coastal Permit Applications.

In Lynch v. California Coastal Commission, (2014) 229 Cal.App.4th 658, the court of appeal held that a coastal permit applicant could not submit to coastal permit conditions of approval and reserve the right to challenge them in court later. The plaintiffs owned neighboring bluff-top homes in Encinitas, and they applied to the City and the Coastal Commission for permits to reconstruct a seawall, a mid-bluff geogrid protection structure, and a private stairway.

While the application was pending, a severe storm caused the bluff below one of the owner’s houses to collapse and destroyed portions of the existing structures. The Commission granted the permit but with special conditions that precluded building the lower part of the stairway, limited the permit to 20 years, and required the owners to record deed restrictions consistent with these conditions. Instead of challenging the permit conditions right away, the owners submitted to the conditions and recorded the deed restriction.

The owners later challenged the permit conditions in court, and the Commission argued that the owners waived their rights to challenge the conditions by accepting the permit and recording the deed restrictions. The owners countered that they submitted to the conditions under duress and protest because of the imminent danger to their homes. The court first noted that the owners could have applied for an emergency permit from the Commission to stabilize their property but chose not to do so. The court then addressed the relevant protest rules. It held that the ‘pay under protest’ rule set forth in Government Code section 66020 only applies to conditions imposed by local agencies that “divest the developer of money [e.g., impact fees] or a possessory interest in property [e.g. street dedications], but it does not apply to conditions that restrict the manner in which a developer may use its property.” The court further held that the condition limiting the permit’s duration to 20 years was supported by substantial evidence for several reasons, including these: the seawall may not be needed to support the subject properties (or the current structures on the houses) in perpetuity; the seawall may have long-term impacts on other properties; and with climate change and sea level rise, the seawall may need to be augmented or changed in 20 years.

[Note:  As of 4/26/16, an appeal of this decision is pending before the California Supreme Court.]

©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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