Appellate Court Holds That Complying With, and Performing Work,

Allowed  by a Land Use Permit Prior to Resolution of Administrative Mandate

Proceedings Forfeits the Permittee’s Objections to the Permit’s Conditions

In Lynch, et al. v. California Coastal Commission, the homes of two (2) California property owners had been protected by a shared seawall and midbluff erosion control structure since 1986.  A shared stairway provided the only access from the blufftop to the beach below.  After winter storms significantly damaged the seawall, most of the midbluff structure, and the lower portion of the stairway, the property owners sought a coastal development permit from the California Coastal Commission (“Commission”) to demolish the old structure, construct a new tied-back seawall across both properties, and rebuild the lower stairway.  The Commission ultimately approved the coastal development permit allowing for the seawall demolition and reconstruction, as well as midbluff geogrid protection.  However, the permit was subject to several conditions, including that the permit would expire in twenty (20) years, after which the property owners were required to apply for a new permit to remove the seawall, change its size or configuration, or extend the permitted period.  Another condition prohibited the reconstruction of the lower stairway.

The property owners timely filed a petition for writ of administrative mandate challenging these conditions.  While the litigation proceeded, the property owners satisfied all other permit conditions, obtained the permit, and built the seawall.  Approximately a year later, the trial court granted the property owners’ motion for judgment on the mandate petition, finding the twenty (20) year expiration date was unconstitutional and beyond the Commission’s authority because it did not mitigate impacts of this particular project.  The Commission appealed.

The appellate court disagreed with the trial court, and found that the property owners forfeited their right to challenge the permit’s conditions by complying with all pre-issuance permit requirements, accepting the permit, and building the seawall.  In the land use context, the appellate court explained, 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.  “The crucial point is that [the property owners] went forward with construction before obtaining a judicial determination on their objections.  By accepting the benefits of the permit and building the seawall, plaintiffs effectively forfeited the right to maintain their otherwise timely objections.”  The appellate court also found that the Mitigation Fee Act, which established a procedure by which developers may proceed with a project and still protest the imposition of fees or a possessory interest in property, does not apply to land use restrictions. 

Further, the appellate court found that “[r]equiring that parties seek to invalidate permit conditions in administrative mandate proceedings before beginning a project ‘serves the salutary purpose of properly alerting the [agency] that its decision is being questioned,’ and allows the government to mitigate potential damages.”  Finally, regarding the property owners’ claim that they had no choice but to proceed with construction out of fear that their homes would collapse into the sea, the appellate court noted that property owners can address imminent dangers by obtaining an emergency permit.  Emergency permits generally authorize temporary improvements needed for immediate relief when loss or damage is threatened.  The property owners could have sought an emergency permit for a temporary seawall to protect their properties during the administrative mandate proceedings. 

Therefore, if property owners find themselves in a situation where they have been issued a land use permit, but object to the condition(s) of the permit, the property owners must initiate and conclude administrative mandate proceedings regarding the challenged condition(s) prior to complying with the permit and performing the work contemplated by the permit.  Otherwise, the property owner forfeits any objection(s) to said condition(s).

Nicholas D. Fine, Associate ndf@sbj-law.com