Court Held that a Landowner Can Allow a Permit to Expire and then Challenge the Permit Conditions on a Later Replacement Permit

Because of a correction to the facts, California’s Second Appellate District reversed its previous decision in Bowman v. California Coastal Commission, and held that a landowner can allow a permit to expire and then challenge the permit conditions on a later replacement permit. The change in facts led the Court to conclude that collateral estoppel should not apply. This ruling will have important implications for any person who seeks permits to improve his or her real property and is dissatisfied with the conditions placed upon those permits.

What Happened in Bowman v. California Coastal Commission?

Walton Emmick owned about 400 acres of land in San Luis Obispo County. A single family home and a barn stood on the property when he purchased it. Both buildings were in bad shape. The land also included a mile of shoreline that was broken up by a parcel owned by someone else. Emmick applied for a coastal development permit (CDP) to connect an already existing well to the home on the land. He also obtained over-the-counter permits for dry-rot removal and roof and deck repairs.

About nine months later, Emmick amended his CDP application, asking additionally for approval for replacing a septic tank and “rehabilitat[ing] the existing residence.” Emmick started to do the work covered by the over-the-counter permits, but an inspector told him he had to stop until the county issued a CDP. So he stopped. Unfortunately, Emmick passed away shortly after stopping work. SDS Family Trust took over the property. Then, almost two years after the initial application, the county approved the CDP. The CDP was conditioned upon SDS’s offer to dedicate a lateral easement for public access along the property’s shoreline. SDS had 14 days to appeal the decision, but SDS did not appeal. Nine months later, SDS applied for another CDP.

The new CDP included requests for permission to do additional work. However, it also requested the removal of the condition about the coastal access easement. The county approved this new CDP, including the condition removal request. Third party groups and two coastal commissioners appealed this decision, and the Commission agreed. However, the appellate court did not.

The Court’s Reasoning

The Court decided that under these facts, applying collateral estoppel would give “primacy to a procedural rule that creates an unjust result and subverts the fair application of the California Coastal Act of 1976.” First of all, the original repairs Emmick wanted to make did not even require him to obtain a CDP. And he did not make those repairs. So the easement requirement was an unconstitutional taking. Once SDS took over the property, the only work that was done was the removal of dry-rot and repairs to the roof and deck, and that work was done under the over-the-counter permits. So neither SDS nor Emmick accepted any benefit from the first CDP that included the easement condition. Therefore, they were allowed to challenge the taking.

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