California Court of Appeals, Fourth District, First Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2011-00058666- CU-WM-NC Earl H. Maas III, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney General, Jamee J. Patterson and Hayley Peterson, Deputy Attorneys General, for Defendant and Appellant.
Axelson & Corn, Jonathan C. Corn; Pacific Legal Foundation, Paul J. Beard II and Jennifer F. Thompson, for Plaintiffs and Respondents.
McCONNELL, P. J.
The California Coastal Commission (Commission) appeals from a judgment in a mandamus action directing the Commission to remove three conditions from a coastal development permit amendment (permit) issued to Barbara Lynch and Thomas Frick (collectively, respondents). The Commission contends respondents waived any challenge to these conditions by signing and recording documents agreeing to them and then accepting the benefit of the permit by completing their project. The Commission further contends the conditions were valid and supported by substantial evidence. We agree with both contentions and reverse the judgment.
Respondents own adjacent, bluff-top homes in Encinitas. For at least two decades, their homes were protected by a 100-foot wooden erosion control structure and a 100-foot mid-bluff wall. In addition, a private stairway along the bluff face provided them with beach access from their homes.
In 2003 respondents applied to the City of Encinitas (City) for authorization to replace the wooden erosion control structure and the mid-bluff wall. As part of the project, they also planned to remove and replace the lower section of the stairway.
In 2009 the City approved the project, finding the project would not adversely affect the City's general plan policies or its municipal code provisions. The City conditioned its approval on respondents obtaining a permit from the Commission.
The same year, respondents applied to the Commission for the required permit. While their application was pending, a severe storm caused the bluff below Lynch's home to collapse. The collapse destroyed portions of the wooden erosion control structure, mid-bluff wall, and stairway. By the time the Commission considered the permit application in 2011, respondents were 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 these 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. Respondents objected to these special conditions during the application process.
The permit also included a special condition requiring respondents to record deed restrictions in a form approved by the Commission's executive director. The deed restrictions stated the Commission approved the permit subject to the special conditions, and but for the imposition of the special conditions the project would not be consistent with the California Coastal Act of 1976 (Act) (Pub. Resources Code, § 30000 et seq.) and the Commission would not have approved the permit. The deed restrictions also stated respondents elected to comply with the special conditions in order to undertake the development authorized by the permit and, in consideration for the permit's issuance, they irrevocably covenanted with the Commission that the special conditions constituted covenants, conditions and restrictions running with the land for the duration of the permit.
Respondents filed a petition for writ of mandate challenging the conditions precluding them from rebuilding the lower section of the stairway and limiting the permit's duration to 20 years. Meanwhile, respondents signed and recorded the required deed restrictions, satisfied the other prior-to-issuance permit conditions, obtained the permit, and constructed their project.
The Commission moved for judgment under Code of Civil Procedure section 1094, arguing respondents were barred from proceeding with their mandamus action because they agreed to the permit conditions and accepted the benefit of the permit. The superior court denied the motion, finding respondents had not specifically agreed to nor necessarily accepted the challenged conditions.
A few months later, respondents moved for judgment, arguing the condition precluding them from rebuilding the lower portion of the stairway was invalid because that portion of the project did not require a permit. In addition, respondents argued the conditions limiting the duration of the permit to 20 years were invalid because the conditions have no nexus to the seawall's impacts and the Commission had no other authority to impose them. The superior court substantially agreed with respondents' position. The court granted the motion and issued a writ directing the Commission to remove the challenged conditions from the permit.
Waiver by Agreeing to Conditions and Accepting Permit Benefits
As it did below, the Commission contends on appeal respondents waived their right to challenge the permit conditions when they signed and recorded deed restrictions agreeing to the permit conditions and then accepted the permit's benefit by constructing their project. We agree.
Generally, 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. (Building Industry Assn. v. City of Oxnard (1985) 40 Cal.3d 1, 3, fn. 1 [218 Cal.Rptr. 672, 706 P.2d 285] (Building Industry Assn).) If the property owner complies with the condition, the property owner waives the right to legally challenge it. (Ibid.; see Hensler v. City of Glendale (1994) 8 Cal.4th 1, 19, fn. 9 [32 Cal.Rptr.2d 244, 876 P.2d 1043] (Hensler); County of Imperial v. McDougal (1977) 19 Cal.3d 505, 510-511 [138 Cal.Rptr. 472, 564 P.2d 14]; Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642, 653 [255 P.2d 772]; Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1484 [28 Cal.Rptr.2d 734]; Rossco Holdings Inc. v. State of California (1989) 212 Cal.App.3d 642, 654-655 [260 Cal.Rptr. 736]; Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74, 78 [137 Cal.Rptr. 804], modified by statute as stated in Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193, 1200 [163 Cal.Rptr.3d 2, 310 P.3d 925].) The rule stems from the equitable maxim, "He who takes the benefit must bear the burden." (Civ. Code, § 3521; see Edmonds v. County of Los Angeles, supra, at p. 653; see Peers v. McLaughlin (1891) 88 Cal. 294, 299 [26 P. 119] ["[N]o person, whether minor or adult, can be permitted to adopt that part of an entire transaction which is beneficial, and reject its burdens. [¶] This commanding principle of justice is so well established, that it has become one of the maxims of the law."].)
Respondents contend this rule does not apply to them because they did not, in fact, voluntarily agree to the conditions. They objected to the conditions during the proceedings before the Commission and then timely filed a petition challenging them. They completed the steps necessary to obtain the permit to save their homes. Essentially, they contend they submitted to the conditions under protest and duress.
Although there are two recognized exceptions to the general waiver rule, neither applies here. The first exception, codified in Government Code section 66020, allows a developer to comply with a condition under protest and proceed with development while simultaneously challenging the condition. (Gov. Code, § 66020, subds. (a) & (d)(2); Hensler, supra, 8 Cal.4th at p. 19, fn. 9; Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 241 [1 Cal.Rptr.2d 818].) However, this exception applies only to conditions imposed by local agencies that "divest the developer of money or a possessory interest in property." (Sterling Park, L.P v. City of Palo Alto, supra, 57 Cal.4th at p. 1207.) It does not apply to conditions imposed by state agencies or to conditions that restrict "the manner in which a developer may use its property." (Ibid.; see Trend Homes, Inc. v. Central Unified School Dist. (1990) 220 Cal.App.3d 102, 111 [269 Cal.Rptr. 349].)
The second exception applies when an agency imposes new conditions on a permit for a later phase of a project already underway. (Building Industry Assn., supra, 40 Cal.3d 1, 3, fn. 1; Rezai v. City of Tustin (1994) 26 Cal.App.4th 443, 450 [31 Cal.Rptr.2d 559]; Laguna Village, Inc. v. County of Orange (1985) 166 Cal.App.3d 125, 127-128 [212 Cal.Rptr. 267]; McLain Western #1 v. County of San Diego (1983) 146 Cal.App.3d 772, 777 [194 Cal.Rptr. 594].) In such circumstances, the developer has already commenced the project, made commitments, and incurred costs, which are typically irrevocable decisions. The developer, therefore, has no economically practicable option to elect not to accept the subsequent permit and its accompanying conditions. (McLain Western #1 v. County of San Diego, supra, at p. 777.)
At least one appellate court has since limited the second exception to challenges to fee conditions, making it largely indistinguishable from the first exception. (Rezai v. City of Tustin, supra, 26 Cal.App.4th at p. 451; see Hensler, supra, 8 Cal.4th at p. 19, fn. 9 [suggesting after the enactment of Government
Code, § 66020 the first exception is the only exception to the general rule].) Assuming without deciding the second exception continues to apply to nonfee conditions, it still does not apply in this case as this case does not involve new conditions imposed on a later phase of a project already underway.
Nonetheless, respondents believe there is or should be an "under protest" exception for permit applicants who are opposed to nonfee conditions like those at issue in this case and desire to build their projects while simultaneously challenging the conditions. We decline to adopt such an exception for several reasons. First, 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 permit. Second, allowing permit applicants to accept the benefits of a permit while challenging its burdens would foster litigation and create uncertainty in land use planning decisions. Finally, unlike an invalid fee condition, an invalid nonfee condition is not readily quantified and remedied. If an agency learns a nonfee condition is invalid before a project is built, the agency may be able to address the impacts underlying the condition in an alternate manner. However, if an agency learns a nonfee condition is invalid after a project is built, the agency may have no practical means of addressing the underlying impacts. Given these policy considerations, we conclude the need for or desirability of an under protest exception of the type advocated by respondents is a matter best left for legislative resolution.
The dissent adopts respondents' position without discussing the general waiver rule, the currently recognized exceptions, or the wisdom of judicially recognizing a new exception for respondents' situation. In addition, the dissent suggests it was appropriate for respondents to sign and record documents purporting to establish covenants running with the land when respondents did not actually intend to establish such covenants. In the dissent's view, the documents' severability clauses not only allow respondents' subterfuge, but require us to disregard the documents' contents because the Commission did not establish by clear and convincing evidence respondents' actually meant what they said in the documents.
Absent clear, supporting authority, which the dissent has not identified, we are unwilling to condone deliberate subterfuge in recorded documents as doing so would subvert the documents' noticing function. It is also unnecessary for us to condone such conduct as respondents had a reasonable option short of deliberate subterfuge to address any immediate danger to their properties pending the outcome of this litigation. (See fn. 2, ante.)
Moreover, we disagree with the dissent's view that respondents' deliberate subterfuge amounted to a failure of proof on the Commission's
part. The rules governing the interpretation of deed restrictions are the same as the rules governing the interpretation of contracts. We are required to interpret them in a way that is both reasonable and carries out their intended purpose. We are also required to ascertain the parties' intent solely from the language of the documents whenever possible. (Costa Serena Owners Coalition v. Costa Serena Architectural Com. (2009) 175 Cal.App.4th 1175, 1199 [97 Cal.Rptr.3d 170]; Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1378 [89 Cal.Rptr.3d 659].) As the language of the documents is not ambiguous regarding respondents' intent to establish covenants running with the land in favor of the Commission, the language of the documents controls and provides ample evidence of respondents' waiver.
Validity of 20-Year Duration Condition
Even if respondents had not waived their right to challenge the permit conditions, the Commission contends it lawfully limited the duration of respondents' permit. We agree with this contention as well.
The court's role in reviewing Commission decisions is to determine " 'whether (1) the [Commission] proceeded without, or in excess of, jurisdiction; (2) there was a fair hearing; and (3) the [Commission] abused its discretion.' " (Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900, 921 [133 Cal.Rptr.3d 107] (Ross).) The Commission abuses its discretion if it does not proceed in the manner required by law, its order or decision is not supported by the findings, or its findings are not supported by substantial evidence. (Ibid.)
In determining whether the Commission's findings are supported by substantial evidence, we examine the whole record and consider all relevant evidence, including evidence detracting from the Commission's decision. While we engage in some weighing to fairly estimate the worth of the evidence, we do not conduct an independent review of the record where we substitute our own findings and inferences for those of the Commission. It is the Commission's role to weigh the preponderance of conflicting evidence
and we may reverse the Commission's decision only if no reasonable person could have reached the same conclusion based on the same evidence. (Ross, supra, 199 Cal.App.4th at pp. 921-922.)
Chapter 3 of the Act contains the standards for determining the permissibility of development projects subject to the Act. (§ 30200, subd. (a).) We must liberally construe these standards to achieve the Act's purposes and objectives. (§ 30009.)
Included within the standards is a requirement the Commission find a proposed project conforms to the applicable certified local coastal program. (§ 30604 (b).) Here, the City's local coastal program policies and implementing regulations applicable to seawalls require that a seawall be necessary to protect the principal bluff top structure; not cause, promote, or encourage bluff erosion or failure; be visually compatible with the character of the surrounding area; and not unnecessarily restrict or reduce the use of or access to existing beach width. (Encinitas General Plan and Local Coastal Program Land Use Plan, Resource Management Element, Policy 8.5; Encinitas Mun. Code, §30.34.020, subd. C.2.b.(2)-(5).)
In addition, for projects such as respondents, which are located between the nearest public road and the sea shoreline, the Act requires that the Commission find the project conforms to the Act's public access and public recreation policies. (§ 30604, subd. (c).) For seawalls, the Act further requires that the Commission find the seawall is: (1) required to serve coastal-dependent uses or to protect existing structures or public beaches from erosion; and (2) designed to eliminate or mitigate adverse impacts on local shoreline sand supply. (§ 30235.)
Here, the Commission imposed the condition limiting the permit's duration because it found: (1) the seawall is only required to protect respondents' existing homes and is not intended to be a permanent structure accommodating any future redevelopment of the homes; (2) the seawall will have
long-term impacts on adjacent properties to the north and may have long-term impacts on other adjacent properties which are not yet fully addressable; (3) shoreline protection strategies are evolving, particularly in light of climate change and sea level rise; and (4) notwithstanding its theoretical lifespan, the seawall will likely need augmentation, replacement, or substantial changes within 20 years because of sea level rise and the seawall's location in a high hazard area. Essentially, the duration limit allows the Commission to revisit the need for the seawall or require further mitigation for its impacts based on a lifespan corresponding to, but not exceeding, the remaining anticipated lifespan of respondents' existing homes.
The Commission's findings are presumed to be supported by substantial evidence (Ross, supra, 199 Cal.App.4th at p. 921) and respondents have not directed us to any record evidence undermining these findings. While there may be, as respondents and the dissent suggest, other means of satisfactorily addressing the project's long-term impacts, we may not substitute our judgment for the Commission's. It is the Commission's role to weigh the preponderance of any conflicting evidence before it and ...