Feduniak v. California Coastal Commission

• Citation: 56 Cal.Rptr.3d 591,148 Cal.App.4th 1346
• Decision Date: 27 March 2007
• Docket Number: No. H028931.,H028931.
• Court: California Court of Appeals
• Parties: Robert FEDUNIAK et al., Plaintiffs and Respondents, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

56 Cal.Rptr.3d 591

148 Cal.App.4th 1346

Robert FEDUNIAK et al., Plaintiffs and Respondents, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

No. H028931.

Court of Appeal, Sixth District.

March 27, 2007.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, J. Matthew Rodriquez, Senior Assistant Attorney General, Joseph Barbieri, Supervising Deputy Attorney General, Christiana Tiedemann, Deputy Attorney General, for Defendant and Appellant, California Coastal Commission.

Noland, Hamerly, Etienne & Hoss, Myron E. Etienne, Monterey, Michael Masuda, for Plaintiffs and Respondents, Robert Feduniak et al.

James S. Burling, Sacramento, Lawrence G. Salzman, for Amicus Curiae, Pacific Legal Foundation.

RUSHING, P.J.

INTRODUCTION

In this case, we conclude that the doctrine of equitable estoppel does not bar the California Coastal Commission from ordering a coastal homeowner to remove a private three-hole golf course from around the house and restore the area to its native sand dune vegetation in accordance with applicable restrictions on landscaping.

STATEMENT OF THE CASE

In 2002, the California Coastal Commission (Commission) issued cease-and-desist and restoration orders, directing the plaintiffs Robert and Maureen Feduniak (the Feduniaks) to remove the three-hole, pitch-and-putt golf course that surrounded their house on the Monterey County coast and restore the grounds to the dune vegetation native to the area. The Feduniaks challenged the orders by filing a petition for a writ of administrative mandate. (Code of Civ. Proc., § 1094.5.) They claimed that the Commission's orders were invalid; and even if valid, the Commission was estopped from enforcing them. The trial court agreed with the second claim and granted the writ, estopping the Commission from enforcing its orders for as long as the Feduniaks owned the property.

The Commission appeals from the judgment and claims the court erred in applying estoppel.

We agree and reverse the judgment.

BACKGROUND

In the early 1980's, Bert and Bonnie Bonanno, James and Gail Griggs, and John and Marcia Miller were co-owners of a 1.67-acre parcel on the 17-Mile Drive in the Asilomar Dunes area of Pebble Beach in Monterey County. In May of 1983, the owners applied to the Commission for a development permit to demolish the existing house and build a larger one. In July 1983, the Commission granted the permit with conditions.

The Commission determined that the parcel is located within the Asilomar Dune complex, much of which is considered an "environmentally sensitive habitat area" (ESHA) because of the unique, indigenous flora that had evolved over time and provided stability for the dune environment. A survey of the parcel at the time revealed that "the site has been severely altered through previous home construction"; its "vegetation is mainly iceplant and other exotics with a few randomly occurring native plants"; and "[t]he native plants onsite as well as in the general area, are for the most part threatened by the spread of the aggressive iceplant." Consequently, the "site requires restoration rather than preservation."

In accordance with the general policy for new development, which required native landscaping and botanic easements to protect the undeveloped dune areas, the Commission limited the size of the proposed new home to 14 percent of the parcel "to prevent adverse impacts to the habitat." It further required the owners to dedicate and record an open-space "easement for the protection of the scenic and natural habitat values on the site" that would extend over the remaining 86 percent of the parcel and include provisions "to prohibit development; to prevent disturbance of native groundcover and wildlife; to provide for maintenance and restoration needs in accordance with the approved landscape plan; and to specify conditions under which non-native species may be planted or removed, trespass prevented, and entry for scientific research secured." ¹

In addition, the Commission required the owners to submit for review and approval a landscape and maintenance plan prepared by a professional botanist. "The plan shall show the removal of all ice plant and other exotics on the site and revegetation of the lot with dune vegetation native to the Asilomar dunes." (Italics added.) The permit further provided, "Unless waived by the Executive Director, a separate coastal permit shall be required for any additions to the permitted development."

The Commission found that "[i]mplementation of a native revegetation program will restore the site"; and, with the dedicated easement and restored landscape, "the proposed development can be found consistent both with previous Commission action in this area and with Section 30240(b) of the Coastal Act, as an adjacent environmentally sensitive habitat area will be protected."²

The owners of the property agreed to all of the conditions, at least on paper, and initially complied with them. They recorded an irrevocable offer to dedicate an open space easement, which incorporated by reference the specific provisions of the permit, in which they agreed "to restrict development on and use of the Property so as to preserve the open-space and scenic values present on the property and so as to prevent the adverse direct and cumulative effect on coastal resources and public access to the coast which could occur if the Property were not restricted...."³ The owners also submitted a landscape plan providing for the removal of non-native plants and restoration of the entire site to native dune plants and grasses. On October 28, 1983, the Commission issued the permit.

After receiving the permit, the Bonannos, who by this time had become the sole owners of the property, modified the original landscape plan to include a three-hole, pitch-and-putt golf course. They submitted the new plan to the Pebble Beach Company for its approval.⁴ However, they did not submit it to the Commission or seek a supplemental permit for additional development, as required by their permit. The Pebble Beach Company approved the golf course. By 1985, the new house was built, the golf course was installed, and the property became known as Fan Shell Greens.

In 1996, the Bonannos' architect, Eric Miller, applied to the Monterey County Planning and Building Inspection Department (Planning Department) for a permit to build a caretaker's house on the property.⁵ In the Bonannos' application, Miller represented that there were no easements on the property. The Planning Department approved the application, finding, among other things, that the property complied with "all rules and regulations pertaining to the use of the property, that no violations exist on the property and that all zoning abatement costs, if any[,] have been paid." No one appealed from the Department's decision to issue the permit.⁶

Early in 2000, the Feduniaks learned that Fan Shell Greens was for sale. Mr. Feduniak testified below that he and his wife had seen the property with its prominent golf course numerous times in the 1980s and had always liked its unique landscaping. Consequently, they made an offer, and the Bonannos accepted it.

In their real estate transfer disclosure statement, the Bonannos answered "Yes" concerning whether there were "encroachments, easements or similar matters that may affect [the Feduniaks'] interest in the subject property." However, they disclosed only a "fence encroachment" and did not also disclose the easement and permit restrictions.

The Feduniaks obtained a preliminary title report from Old Republic Title Company, but neither it nor the final report revealed the restrictions, although they were recorded. The Feduniaks did not consult with the Commission or check its files concerning the property or otherwise rely on any representations or information from the Commission in deciding to purchase the property. Based on the Bonannos' disclosure statement and the title report, they bought the property for $13,000,000. Mr. Feduniak testified below that they would not have bought the property if the golf course had not been there.

In August 2001, Steven Staub, a forester for the Del Monte Forest Foundation, Inc. (Foundation), wrote to the Feduniaks to arrange an inspection review of the property to ensure its compliance with the terms of the open-space easement, which he attached to his letter. The Feduniaks were bewildered because they had no knowledge of the easement. Moreover, Mr. Feduniak testified that it seemed to them "inconceivable" that there was a problem that had gone unnoticed for such a long time.

Staub and his colleagues inspected the property and met with the Feduniaks a few times. In July 2002, Staub wrote again and informed the Feduniaks that the current landscaping on the property did not comply with the open space easement. He acknowledged that the golf course was installed by the former owners and that the Feduniaks may not have known about the easement when they bought the property. Nevertheless, he attached a copy of the original landscape plan that the Bonannos had submitted to the Commission, which had been approved, and offered it as a reference and starting point for bringing the property into compliance. He also offered the assistance of experienced habitat consultants in helping them restore the easement area to native dune vegetation and create functional and aesthetically pleasing native landscaping.

In September 2002, the Commission staff learned from Staub about the compliance problem on the property. Staff reviewed the permit and visited the parcel. In December, the Commission notified the Feduniaks that the golf course violated the easement. Consequently, the Commission requested that the Feduniaks submit a removal and restoration plan.

The Feduniaks declined, and in February 2003, the Commission gave notice of its intent to issue cease-and-desist and restoration orders, and thereafter a formal proceeding was...