BARBARA LYNCH et al. v. CALIFORNIA COASTAL COMMISSION
No. S221980
IN THE SUPREME COURT OF CALIFORNIA
July 6, 2017
Ct.App. 4/1 D064120; San Diego County Super. Ct. No. 37-2011-00058666-CU-WM-NC
I. BACKGROUND
Plaintiffs Barbara Lynch and Thomas Frick own adjacent oceanfront properties in Encinitas. Their homes sit on a coastal bluff that cascades
When the wooden poles showed significant decay, plaintiffs applied to the City of Encinitas (City) for authorization to replace the wooden seawall and midbluff structure with an integrated concrete wall. They also sought to rebuild the lower portion of the stairway, which would be attached to the new wall. The City approved the project in 2009, finding it consistent with the general plan and municipal code. Final approval required a coastal development permit from the Commission. While plaintiffs’ application for this permit was pending, unusually heavy winter storms caused the bluff below Lynch‘s home to collapse, destroying part of the seawall, most of the midbluff structure, and the lower portion of the stairway.
Plaintiffs sought a new permit to demolish the old structure, construct a new tied-back seawall across both properties, and rebuild the lower stairway. Commission staff recommended approving the proposed seawall, even though the existing support under Frick‘s property was adequate, because the new wall would provide greater stability and visual appeal. The proposed seawall would be located eight feet inland from its current location, providing additional beach area for recreation. But staff recommended disapproving the stairway, finding it inconsistent with local coastal plan requirements discouraging private access stairways on the bluff.
Ultimately, the Commission approved a coastal development permit1 allowing seawall demolition and reconstruction, with the addition of midbluff geogrid protection below Lynch‘s home. The permit was subject to several conditions, three of which are at issue here. Special condition No. 1(a) prohibits reconstruction of the lower stairway. Special condition No. 2 provides that the seawall permit will expire in 20 years and prohibits future blufftop redevelopment from relying on the seawall as a source of geologic stability or protection. Special condition No. 3 requires that, before expiration of the 20-year period, plaintiffs must apply for a new permit to remove the seawall, change its size or configuration, or extend the authorization period.
About a year later, the Commission moved for judgment on the mandate petition, arguing plaintiffs had waived their objections by accepting the permit conditions and constructing the project. The trial court denied the motion. Plaintiffs then moved for judgment, arguing the permit‘s 20-year expiration date was unconstitutional and beyond the Commission‘s authority because it did not mitigate impacts of this particular project. In addition, plaintiffs maintained the Commission could not prohibit reconstruction of the lower stairway because that activity did not require a permit. The trial court agreed with plaintiffs and issued a writ directing the Commission to remove the challenged conditions. The Court of Appeal reversed in a split decision. The majority determined that plaintiffs had waived their claims and, in any event, both conditions were valid. The dissenting justice disagreed with all of these conclusions.
We granted review. Because we determine plaintiffs’ claims have been forfeited, we do not decide the legality of the challenged conditions.
II. DISCUSSION
As we have explained in various contexts, ” ‘waiver’ means the intentional relinquishment or abandonment of a known right.” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1048; see Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) Waiver requires an existing right, the waiving party‘s knowledge of that right, and the party‘s “actual intention to relinquish the right.” (Bickel, at p. 1053.) ” ‘Waiver always rests upon intent.’ ” (City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107.) The intention may be express, based on the waiving party‘s words, or implied, based on conduct that is ” ‘so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.’ ” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 598; see Waller, at pp. 31, 33-34.)
Waiver differs from estoppel, which generally requires a showing that a party‘s words or acts have induced detrimental reliance by the opposing
Whether a waiver or forfeiture has occurred is often a factual question, typically reviewed for substantial evidence. (Bickel v. City of Piedmont, supra, 16 Cal.4th at pp. 1052-1053.) ” ‘When, however, the facts are undisputed and only one inference may reasonably be drawn, the issue is one of law and the reviewing court is not bound by the trial court‘s ruling.’ ” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196.) Moreover, the determination whether a party‘s actions constitute forfeiture is essentially legal in nature, and thus subject to independent review. (Cf. Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1136 [legal issues concerning administrative exhaustion are reviewed de novo].)
The relevant facts are not in dispute. During the review process, plaintiffs submitted written objections to the conditions they now challenge. After the Commission voted to approve a coastal development permit subject to the challenged conditions, plaintiffs timely filed for a writ of mandate. While the mandate action was pending, however, they satisfied all other conditions, obtained the permit, and built the seawall. The trial court concluded plaintiffs’ actions did not bar their petition. It explained that, “by proceeding with the repairs,” plaintiffs “have not necessarily accepted the conditions in question. No action has been taken as to the twenty year condition[,] which can be removed after review of the instant petition.” In addition, plaintiffs had “not undertaken any action as to the staircase.” Contrary to the trial court, we conclude plaintiffs forfeited their right to challenge the permit‘s conditions by complying with all pre-issuance requirements, accepting the permit, and building the seawall.
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. (County of Imperial v. McDougal (1977) 19 Cal.3d 505, 511 (County of Imperial); Rossco Holdings Inc. v. State of California (1989) 212 Cal.App.3d 642, 654.) Generally, challenges to allegedly unlawful conditions must be litigated in administrative mandate proceedings. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 19; see
In County of Imperial, supra, 19 Cal.3d at page 507, a conditional use permit allowed the commercial sale of water from a residential well but required that sales be kept within the county. The original property owner limited his sales accordingly but sold the property two years later. The new owner refused to comply with the restriction. (Id., at pp. 507-509.) We explained that, while the benefits of a permit run with the land, so too do its restrictions. (Id., at p. 510.) The original landowner waived any objection by voluntarily withdrawing his application to export water and accepting the permit‘s benefits. (Id., at pp. 510-511.) His successor in title was bound by this waiver. (Ibid.)
Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74 (Pfeiffer) reached a similar result. There, the city issued a building permit but required the property owners to grant an easement and construct a storm drain. The owners objected to the conditions but said they would comply ” ‘under protest and without waiving their rights to demand compensation.’ ” (Id., at p. 76) After completing the project, they sued the city for inverse condemnation, seeking compensation for the easement and the cost of constructing the storm drain. (Ibid.) The court held they could not state a cause of action for inverse condemnation because “a landowner who accepts a building permit and complies with its conditions waives the right to assert the invalidity of the conditions and sue the issuing public entity for the costs of complying with them.” (Id., at p. 78.)2 The property owners should have
challenged the conditions by a petition for writ of mandate, rather than complying and later suing for damages. (Ibid.) The court explained that
Plaintiffs
In general, permit holders are obliged to accept the burdens of a permit along with its benefits. (See Sports Arenas Properties, Inc. v. City of San Diego (1985) 40 Cal.3d 808, 815.) This rule stems from the equitable maxim, “He who takes the benefit must bear the burden.” (
Plaintiffs’ position is analogous to that of the landowners in Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642. The Edmonds family operated a large trailer court in violation of zoning regulations and state law. (Id. at p. 644.)
Local authorities agreed to grant an exception allowing additional trailers on the property, subject to a requirement that the nonconforming use be abandoned within three years. (Id. at pp. 645-646.) Edmonds protested this limitation when it was first proposed but ultimately accepted all the benefits afforded by the conditional exception. (Id. at pp. 646-650.) For three years the exception gave the Edmonds family “definite advantages to which they were not otherwise entitled.” (Id. at p. 650) Accordingly, they could not later challenge it. (Id. at pp. 650, 653.)3 Similarly, because plaintiffs here took advantage of their permit‘s benefits by building a seawall, they must now accept the permit‘s conditions.
Plaintiffs urge that because the objectionable permit conditions did not affect the design or construction of the seawall, it was possible to challenge the conditions while the project was being built. Noting the instability of the coastal bluffs, plaintiffs argue they should not have had to await the outcome of litigation before taking action to protect their homes. They essentially ask
When the Legislature addressed this subject, it authorized a narrow exception for challenges to permit conditions imposing a fee or similar exaction. The Mitigation Fee Act (
grounds for protest, local agencies cannot withhold project approval during litigation of the dispute. (
Before the Mitigation Fee Act, developers that wished to challenge the legality of a fee had to delay construction until mandamus proceedings ended. (See McLain Western #1 v. County of San Diego (1983) 146 Cal.App.3d 772, 776-777; Pfeiffer, supra, 69 Cal.App.3d at p. 78.) The Mitigation Fee Act authorized a simultaneous challenge, but only for “fees, dedications, reservations, or other exactions.” (
Creating 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.” (Pfeiffer, supra, 69 Cal.App.3d at p. 78.) 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.
Requiring that parties seek to invalidate permit conditions in administrative mandate proceedings before proceeding with a project “serves the salutary purpose of promptly alerting the [agency] that its decision is being questioned” and allows the government to mitigate potential damages. (California Coastal Com. v. Superior Court (1989) 210 Cal.App.3d 1488, 1496.) After a project has been built, it may be too late for agencies to propose alternative mitigation measures. They may be left with no practical means of addressing a project‘s significant impacts. Land use planning decisions entail a delicate balancing of interests. An under protest exception to the general waiver rule would upset this balance and inject uncertainty into the planning process.
One might argue the Commission could have avoided this problem by declining to issue the permit after plaintiffs filed their administrative mandate action. Plaintiffs do not stress this point, presumably because they would prefer a rule allowing projects to proceed under protest over one encouraging permits to be withheld if they have challenged conditions. Denial of the permit may not have been possible here. According to the Commission, once a landowner satisfies all pre-issuance conditions, including recording deed restrictions that expressly promise all permit conditions will be honored, issuance of the permit is a purely ministerial act that Commission staff are powerless to interrupt. Even assuming the Commission‘s authority could be broadened in this regard, however, we believe the better rule puts the onus on landowners to resolve their challenges before accepting the benefits of a permit. The landowner is in the best position to know how strongly he objects
Plaintiffs protest that imposing a forfeiture under these circumstances could put homeowners in a serious bind. The Commission approved the seawall because Lynch‘s blufftop home was in danger of collapsing into the sea.4 Postponing construction until mandate proceedings had concluded would have left plaintiffs’ homes at significant risk. If proceeding with a project constitutes a forfeiture, plaintiffs argue property owners under similar duress could be coerced to accept unlawful permit conditions, simply because they cannot wait months or years for litigation to conclude.
However, when safety is an issue, property owners can address imminent dangers by obtaining an emergency permit. (
Temporary erosion protection under an emergency permit would have preserved the status quo pending the outcome of litigation. Because administrative mandate proceedings are often streamlined and subject to local fast track requirements (see Smith-Chavez et al., 2 Cal. Civil Practice: Real Property Litigation (1st ed. 2005) Land Use and Zoning Litigation, § 14:42, p. 14-52 et seq.), delay of a project‘s construction may be minimized.6 Moreover, although it was likely impossible here, in some cases the parties may be able to reach an agreement allowing construction to proceed while a challenge to permit conditions is resolved in court. A clear agreement of this sort could prevent a finding of equitable forfeiture.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Lynch v. California Coastal Commission
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 229 Cal.App.4th 658
Rehearing Granted
Opinion No. S221980
Date Filed: July 6, 2017
Court: Superior
County: San Diego
Judge: Earl H. Maas III
Counsel:
Kamala D. Harris and Xavier Becerra, Attorneys General, Mark J. Breckler, Chief Assistant Attorney General, John A. Saurenman, Assistant Attorney General, Jamee Jordan Patterson and Hayley Peterson, Deputy Attorneys General, for Defendant and Appellant.
Janis L. Herbstman for California State Association of Counties, League of California Cities and International Municipal Lawyers Association as Amici Curiae on behalf of Defendant and Appellant.
Shute, Mihaly & Weinberger, Fran M. Layton and Catherine Malina for American Planning Association and American Planning Association California Chapter as Amici Curiae on behalf of Defendant and Appellant.
Ralph Faust; Environmental Law Clinic Mills Legal Clinic at Stanford Law School, Deborah A. Sivas, Alicia E. Thesing and Matthew J. Sanders for Surfrider Foundation as Amicus Curiae on behalf of Defendant and Appellant.
Axelson & Corn, Jonathan C. Corn; Pacific Legal Foundation, James S. Burling, John M. Groen, Paul J. Beard II and Jennifer F. Thompson for Plaintiffs and Respondents.
Briscoe Ivester & Bazel and Peter Prows for Beach and Bluff Conservancy, Protect the Beach.org, Seacoast Preservation Association and Coastal Property Owners Association of Santa Cruz County as Amici Curiae on behalf of Plaintiffs and Respondents.
Alston & Bird and Paul J. Beard II for California Association of Realtors and National Association of Realtors as Amici Curiae on behalf of Plaintiffs and Respondents.
Rutan & Tucker and David P. Lanferman for California Building Industry Association, California Cattlemen‘s Association and California Farm Bureau Federation as Amici Curiae on behalf of Plaintiffs and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Hayley Peterson
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2540
John M. Groen
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814
(916) 419-7111