Legal Alerts Jul 10, 2017

Property Owner Forfeited Right to Challenge Coastal Commission Permit by Constructing Seawall

California Supreme Court Decision Applies to Other Development Permits

Property Owner Forfeited Right to Challenge Coastal Commission Permit by Constructing Seawall

A property owner who obtains a development permit will forfeit his right to challenge conditions imposed on that permit by proceeding with the development, the California Supreme Court said Thursday. Although the case involves a coastal development permit, issued by the California Coastal Commission, the holding would apply equally to other development permits issued by local agencies, such as cities and counties.
At issue in the case, Lynch v. California Coastal Commission, was a coastal development permit that the Commission issued to property owners Barbara Lynch and Thomas Frick. The property owners sought to re-build a wooden seawall and mid-bluff erosion control structure with an integrated concrete wall. The permit was also sought to allow the rebuilding of a lower portion of a stairway, leading from the sea bluff down to the beach area.
The Commission granted the permit, over the objections of Commission staff. However, the Commission also imposed several conditions on the permit. The conditions prohibited any further reconstruction of the lower stairway beyond what was allowed by the permit. The Commission’s conditions also provided that the permit would expire in 20 years and prohibited future bluff-top redevelopment from relying on the seawall as a source of geologic stability. Finally, the permit required that, prior to the expiration of the 20-year period, the property owners would need to apply for a new permit to remove the seawall, change its size or configuration, or extend the authorization period.
After the permit was issued, the property owners filed suit to challenge the 20-year expiration conditions and the condition prohibiting reconstruction of the lower stairway. However, at the same time, the property owner satisfied all of the other permit conditions and proceeded to build the seawall.
The California Supreme Court concluded that the property owners, by constructing the seawall, obtained the benefits of the permit. Relying on a maxim of jurisprudence, “He who takes the benefits must bear the burden,” the Court concluded that the property owners had forfeited their right to challenge the permit conditions in court.
This ruling protects cities and counties in their land use permitting processes by ensuring that property owners are not able to obtain the benefits of a land use permit, then chip away at the conditions that are imposed by the city or county through court actions. The Court also noted that this ruling will help limit litigation in the land use context. Ultimately, the Court stated that “the landowner is in the best position to know how strongly he objects to a particular condition, and to weigh the change a challenge will succeed against the costs of delaying a project.”
In support of the California Coastal Commission, the League of California Cities and the International Municipal Lawyers Association filed an amicus curiae brief.
For more information on how this decision may impact your public agency, please contact the attorney author of this Legal Alert listed at right in the Municipal Law practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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