Agenda - Planning Commission - 12/04/2014

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Zoning Bulletin November 10, 2014 I Volume 8 I Issue 21 Landowners had urged the court to create an "under protest" exception for permit applicants who are opposed to nonfee conditions and desire to build their projects while simultaneously challenging the conditions. The court declined to adopt such an exception because: "the exception would effectively swallow the general rule as many, if not most, permit applicants are required to submit to conditions they view unfavorably in order to obtain a peiiuit"; "allowing permit applicants to accept the benefits of a permit while challeng- ing its burdens would foster litigation and create uncertainty in land use plan- ning decisions"; and "unlike an invalid fee condition, an invalid nonfee condi- tion is not readily quantified and remedied." The court also agreed that the Commission had lawfully limited the Land- owners' permit to 20 years. The court held that the Commission could impose conditions limiting the duration of the Landowners' permit (to a 20-year limitation) in order to ensure that the seawall's long-term impacts did not extend beyond the time period for which the seawall's existence could reason- ably be justified to protect the Landowners' homes (i.e., the remaining anticipated lifespan of the Landowners' existing homes). Moreover, the court found no authority precluding the Commission from imposing a condition limiting the duration of the permit; rather, the court noted that the Commis- sion had broad discretion to impose conditions to mitigate the seawall's impact. Finally, the court also found that the Commission had lawfully conditioned the Landowners' permit on the removal of the lower stairway from the project plans. The court found that the California Coastal Act of 1976 required a permit for reconstruction of a stairway where, as here, the reconstruction was on a coastal bluff edge involving placement of solid materials and the presence of mechanized equipment and construction material. See also: Sterling Park, L.P. v. City of Palo Alto, 57 Cal. 4th 1193, 163 Cal. Rptr. 3d 2, 310 P.3d 925 (2013). See also: Rezai v. City of Tustin, 26 Cal. App. 4th 443, 31 Cal. Rptr. 2d 559 (4th Dist. 1994). Case Note: At least one appellate court has limited the second exception to the general waiver rule to challenges to fee conditions only. Here, the court assumed without deciding that the second exception continued to apply to nonfee conditions, but still found it did not ap- ply in this case as this case did not involve new conditions imposed on a later phase of a project already underway. Zoning News from Around the Nation CALIFORNIA Recently signed into law by Governor Jerry Brown, Assembly Bill 1147 "substantially revises the state's regulation over the massage industry, includ- ing expanding cities' and counties' ability to regulate massage therapists and 2014 Thomson Reuters 11