Agenda - Planning Commission - 12/04/2014

Home

November 10, 2014 I Volume 8 I Issue 21 Zoning Bulletin 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 those 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. Landowners objected to these special conditions during the application pro- cess, and later filed a petition for writ of mandamus challenging the conditions. Meanwhile, however, Landowners also: signed and recorded deed restrictions (required by another special condition of the permit), which specifically stated that Landowners elected to comply with the special conditions in order to undertake the Project; obtained the permit; and constructed their Project. The superior court later granted judgment to Landowners on their writ of mandamus challenging the special conditions precluding the stairway construction and limiting the duration of the permit. The court agreed with Landowners' arguments, finding: (1) that the condition prohibiting Landown- ers from rebuilding the lower portion of the stairway was invalid because that portion of the project did not require a permit; and (2) that the conditions limiting the duration of the permit to 20 years were invalid because the condi- tions had no nexus to the seawall's impacts and the Commission had no other authority to impose them. The Commission appealed. On appeal, the Commission contended that Landowners had waived their right to challenge the permit conditions when they signed and recorded deed restrictions agreeing to the peinuit conditions and then accepted the permit's benefit by constructing their project. The Com- mission also contended that it lawfully limited the duration of Landowners' peiniit to 20 years, and that it lawfully conditioned the permit on the removal of the lower stairway from the Project plans. DECISION: Judgment of superior court reversed. The Court of Appeal, Fourth District, Division 1, California, agreed with the Commission. It concluded that Landowners waived their right to challenge the permit conditions. The court explained that "[g]enerally, 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." The court acknowledged that there were two recognized exceptions to the general waiver rule: First, pursuant to California Government Code § 66020, a developer may comply with a condition and proceed with develop- ment while simultaneously protesting and challenging the condition if it is one imposed by a local agency (but not those imposed by a state agency) that divests the developer of money or a possessory interest in the property. Second, a developer may accept and later challenge a new permit condition on a later phase of the project already underway. 10 ©2014 Thomson Reuters