Lynch v. Cal. Coastal Comm'n, D064120

• Court: California Court of Appeals
• Writing for the Court: McCONNELL
• Citation: 177 Cal.Rptr.3d 654
• Parties: Barbara LYNCH et al., Plaintiffs and Respondents, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.
• Decision Date: 09 September 2014
• Docket Number: D064120

177 Cal.Rptr.3d 654

Barbara LYNCH et al., Plaintiffs and Respondents,
v.
CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

D064120

Court of Appeal,
Fourth District, Division 1, California.

Filed September 9, 2014

See 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 861 et seq.

APPEAL from a judgment of the Superior Court of San Diego County, Earl H. Maas III, Judge. Reversed. (No. 37–2011–00058666–CU–WM–NC)

Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney General, Jamee J. Patterson and Hayley Peterson, Deputy Attorneys General, for Defendant and Appellant.

Axelson & Corn, Jonathan C. Corn; Pacific Legal Foundation, Paul J. Beard II and Jennifer F. Thompson, for Plaintiffs and Respondents.

McCONNELL, P.J.
INTRODUCTION

The California Coastal Commission (Commission) appeals from a judgment in a mandamus action directing the Commission to remove three conditions from a coastal development permit amendment (permit) issued to Barbara Lynch and Thomas Frick (collectively, respondents). The Commission contends respondents waived any challenge to these conditions by signing and recording documents agreeing to them and then accepting the benefit of the permit by completing their project. The Commission further contends the conditions were valid and supported by substantial evidence. We agree with both contentions and reverse the judgment.

BACKGROUND

Respondents own adjacent, bluff-top homes in Encinitas. For at least two decades, their homes were protected by a 100–foot wooden erosion control structure and a 100–foot mid-bluff wall. In addition, a private stairway along the bluff face provided them with beach access from their homes.

In 2003 respondents applied to the City of Encinitas (City) for authorization to replace the wooden erosion control structure and the mid-bluff wall. As part of the project, they also planned to remove and replace the lower section of the stairway.

In 2009 the City approved the project, finding the project would not adversely affect the City's general plan policies or its municipal code provisions. The City conditioned its approval on respondents obtaining a permit from the Commission.

The same year, respondents applied to the Commission for the required permit. While their application was pending, a severe storm caused the bluff below Lynch's home to collapse. The collapse destroyed portions of the wooden erosion control structure, mid-bluff wall, and stairway. By the time the Commission considered the permit application in 2011, respondents were seeking to demolish the remainder of the wooden erosion control structure, construct a new 100–foot long shotcrete seawall below both lots, install up to 75 feet of mid-bluff geogrid protection below Lynch's lot and part of Frick's lot, and reconstruct the lower section of the stairway.

The Commission approved a permit allowing only the demolition and reconstruction of the seawall and the installation of the mid-bluff geogrid protection. The permit included numerous special conditions. Among these conditions were special condition 1.a., which precluded reconstruction of the lower section of the stairway, and special conditions 2.1 and 3, which limited the permit's duration to 20 years. Respondents objected to these special conditions during the application process.

The permit also included a special condition requiring respondents to record deed restrictions in a form approved by the Commission's executive director. The deed restrictions stated the Commission approved the permit subject to the special conditions, and but for the imposition of the special conditions the project would not be consistent with the California Coastal Act of 1976 (Act) ( Pub. Resources Code, § 30000 et seq.) ¹ and the Commission would not have approved the permit. The deed restrictions also stated respondents elected to comply with the special conditions in order to undertake the development authorized by the permit and, in consideration for the permit's issuance, they irrevocably covenanted with the Commission that the special conditions constituted covenants, conditions and restrictions running with the land for the duration of the permit.

Respondents filed a petition for writ of mandate challenging the conditions precluding them from rebuilding the lower section of the stairway and limiting the permit's duration to 20 years. Meanwhile, respondents signed and recorded the required deed restrictions, satisfied the other prior-to-issuance permit conditions, obtained the permit, and constructed their project.

The Commission moved for judgment under Code of Civil Procedure section 1094, arguing respondents were barred from proceeding with their mandamus action because they agreed to the permit conditions and accepted the benefit of the permit. The superior court denied the motion, finding respondents had not specifically agreed to nor necessarily accepted the challenged conditions.

A few months later, respondents moved for judgment, arguing the condition precluding them from rebuilding the lower portion of the stairway was invalid because that portion of the project did not require a permit. In addition, respondents argued the conditions limiting the duration of the permit to 20 years were invalid because the conditions have no nexus to the seawall's impacts and the Commission had no other authority to impose them. The superior court substantially agreed with respondents' position. The court granted the motion and issued a writ directing the Commission to remove the challenged conditions from the permit.

DISCUSSION I
Waiver by Agreeing to Conditions and Accepting Permit Benefits

As it did below, the Commission contends on appeal respondents waived their right to challenge the permit conditions when they signed and recorded deed restrictions agreeing to the permit conditions and then accepted the permit's benefit by constructing their project. We agree.

Generally, a property owner may only challenge an allegedly unreasonable permit condition by refusing to comply with the condition and bringing a mandate action to have the condition declared invalid. (Building Industry Assn. v. City of Oxnard (1985) 40 Cal.3d 1, 3, fn. 1, 218 Cal.Rptr. 672, 706 P.2d 285 (Building Industry Assn ).) If the property owner complies with the condition, the property owner waives the right to legally challenge it. (Ibid.; see Hensler v. City of Glendale (1994) 8 Cal.4th 1, 19, fn. 9, 32 Cal.Rptr.2d 244, 876 P.2d 1043 (Hensler ); County of Imperial v. McDougal (1977) 19 Cal.3d 505, 510–511, 138 Cal.Rptr. 472, 564 P.2d 14; Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642, 653, 255 P.2d 772; Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1484, 28 Cal.Rptr.2d 734; Rossco Holdings Inc. v. State of California (1989) 212 Cal.App.3d 642, 654–655, 260 Cal.Rptr. 736; Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74, 78, 137 Cal.Rptr. 804, modified by statute as stated in Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193, 1200, 163 Cal.Rptr.3d 2, 310 P.3d 925.) The rule stems from the equitable maxim, “He who takes the benefit must bear the burden.” (Civ.Code, § 3521; Edmonds v. County of Los Angeles,supra, at p. 653, 255 P.2d 772; see Peers v. McLaughlin (1891) 88 Cal. 294, 299, 26 P. 119 [“[N]o person, whether minor or adult, can be permitted to adopt that part of an entire transaction which is beneficial, and reject its burdens. [¶] This commanding principle of justice is so well established, that it has become one of the maxims of the law.”].)

Respondents contend this rule does not apply to them because they did not, in fact, voluntarily agree to the conditions. They objected to the conditions during the proceedings before the Commission and then timely filed a petition challenging them. They completed the steps necessary to obtain the permit to save their homes. Essentially, they contend they submitted to the conditions under protest and duress.²

Although there are two recognized exceptions to the general waiver rule, neither applies here. The first exception, codified in Government Code section 66020, allows a developer to comply with a condition under protest and proceed with development while simultaneously challenging the condition. (Gov.Code, § 66020, subd. (a) & (d)(2); Hensler,supra, 8 Cal.4th at p. 19, fn. 9, 32 Cal.Rptr.2d 244, 876 P.2d 1043; Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 241, 1 Cal.Rptr.2d 818.) However, this exception applies only to conditions imposed by local agencies that “divest the developer of money or a possessory interest in property.” It does not apply to conditions imposed by state agencies or to conditions that restrict “the manner in which a developer may use its property.” (Sterling Park, L.P. v. City of Palo Alto,supra, 57 Cal.4th at p. 1207, 163 Cal.Rptr.3d 2, 310 P.3d 925; Trend Homes, Inc. v. Central Unified School Dist. (1990) 220 Cal.App.3d 102, 111, 269 Cal.Rptr. 349.)

The second exception applies when an agency imposes new conditions on a permit for a later phase of a project already underway. (Building Industry Assn.,supra, 40 Cal.3d 1, 3, fn. 1, 218 Cal.Rptr. 672, 706 P.2d 285; Rezai v. City of Tustin (1994) 26 Cal.App.4th 443, 450, 31 Cal.Rptr.2d 559; Laguna Village, Inc. v. County of Orange (1985) 166 Cal.App.3d 125, 127–128, 212 Cal.Rptr. 267; McLain Western #1 v. County of San Diego (1983) 146 Cal.App.3d 772, 777, 194 Cal.Rptr. 594.) In such circumstances, the developer has already commenced the project, made commitments, and incurred costs, which are typically irrevocable decisions. The developer, therefore, has no economically practicable option to elect not to accept the subsequent permit and its accompanying conditions. (McLain Western #1 v. County of San Diego,supra, at p. 777, 194 Cal.Rptr. 594.)

At least one appellate court has since limited the second exception to challenges to fee conditions,...