Winter storms damaged a seawall which protected a blufftop, oceanfront home. The owners, not surprisingly, wanted to rebuild the wall to protect their home. The Coastal Commission, as is its wont, saw this as an opportunity to extract some goodies from the owners. So it granted a limited-term permit to rebuild the wall, conditioned on the owners not repairing a stairway leading from the top of the bluff to the private beach:
Ultimately, the Commission approved a coastal development permit 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.
The owners recorded these restrictions, as the were required to do, and "[a]round the same time," they objected to the conditions. While this case was being decided, they rebuilt the seawall.
In Lynch v. California Coastal Commission, No. S221980 (July 6, 2017), the unanimous California Supreme Court held that the owners waived their right to challenge the conditions, because they accepted the benefit of the permit:
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. Generally, challenges to allegedly unlawful conditions must be litigated in administrative mandate proceedings.
Slip op. at 5-6 (emphasis added) (citations omitted).
Why the court qualified the above statement with "in the land use context," the opinion does not explain. Is this not the same in other contexts? If not, all we can figure is that the court views land use regulations as some sort of super-duper exercise of government's police powers, or that property rights are not on equal footing with other civil rights.Does this mean that in other contexts that if you accept a permit to exercise your rights, you can accept and challenge simultaneously? For example, what if a city says "here’s your parade permit, granted only on the condition that you don’t speak ill of Donald Trump." So if you hold your parade despite this unconstitutional condition, have you waived your free speech challenge under Lynch, or does the italicized limitation on the holding show that land use regs are different in the California court's view?
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.” (Civ. Code, § 3521.) Plaintiffs obtained all the benefits of their permit when they built the seawall. They cannot now be heard to complain of its burdens.Slip op. at 7.
The court rejected the owners' arguments that they might lose their home was a reason to not apply the general waiver rule. We can't make exceptions to legislative acts (referring to the fact that the California legislature has, in the past, allowed simultaneous challenge to allegedly illegal exactions, even though the owner accepted a permit), that's not our role as a court. "If such an expansion is needed, the Legislature is the appropriate body to create it." Slip op. at 9.
Besides, "[a]n 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." Slip op. at 9. All we can say to that is "wow." So it's cool that your home may fall into the ocean if you want to challenge this condition on your exercise of your constitutional rights, but hey, that's your problem or the legislature's problem, not ours. The court's role is to save local government from litigation.
We can't say we were surprised by this ruling -- it is California, after all -- but to have the opinion lay out the court's disregard for anything but government power so starkly, with nary a nod towards the predicament that the owners found themselves in, is still shocking.
Lynch v. California Coastal Comm'n, No. S221980 (Cal. July 6, 2017)
