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No Collateral Estoppels Defense to Removal of Unconstitutional Condition Says California Appellate Court

Beach sceneBowman v. California Coastal Commission, 2014 WL 5390057 (Cal. App.), involved a now-deceased landowner’s attempt to rehabilitate and improve real property within the California coastal management zone.  The landowner applied to the local County for an “over-the-counter” permit for repairs (which were exempt from Coastal Commission review under the California Coastal Act of 1976), but later added a septic tank repair and rehabilitation of a dilapidated house to that permit application, which were subject to such review.  After beginning the work on the over-the-counter permits, the landowner was told by the County to stop work until a final permit had issued.  He did so but had not done any work on the septic tank or the rehabilitation of the house.  He then passed away and a family trust assumed ownership.

Much later, the County approved the permit but added a condition of approval to require a lateral easement along the shorefront of the property, stating that the building had not been in use for some years and the occupation facilitated by the permit would increase the intensity of the use.  Later that year, the family trust applied for an amended approval and requested removal of the condition, which the County did.  However, the amended permit was appealed to the Defendant Commission under California law regarding the removal of the condition.  The Commission ultimately determined that the condition was binding and its removal would violate a public policy in favor of public access to coastal resources and took action to restore the condition.  A co-trustee of the family trust appealed that determination.

The court said it would review the Commission’s order for abuse of discretion.  Plaintiff contended the exaction was unlawful under Nollan and Dolan, because there was no “rough proportionality” between the impacts of the development and the condition imposed.  Defendant Commission argued that it did not create the condition and that it was final and binding.  The court responded that normally the failure to appeal a condition gives rise to collateral estoppel in a subsequent challenge.  However, the court recognized an exception to this rule:

"But under the facts here, application of collateral estoppel gives primacy to a procedural rule that creates an unjust result and subverts the fair application of the California Coastal Act of 1976.  (Pub Resources Code, § 30000 et seq.) Inherent in collateral estoppel are met when its application comports with fairness and sound public policy."

In this case, the court noted that the repairs that were made were exempt from the Coastal Act and were done on an “over-the-counter” basis and could not be the subject of a rough proportionality analysis, noting that the County recognized that fact by removing the condition from its permit.  Moreover, the facts also belie the Commission’s acquiescence argument as neither the land owner nor the family trust took the benefits of a permit.  The court reversed the Commission’s action and struck the condition.

The use of equitable principles in review of the land use decision is fraught with peril.  However, the lack of the constitutionality of the condition left the court with an all-or-nothing proposition in which the unconstitutionality of the condition weighed more heavily then the stability of the decision making process.

Bowman v. California Coastal Commission, 2014 WL 5390057 (Cal. App.)

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