Court holds property owners waived right to challenge Coastal Commission permit by building seawall

By Jeff Ballinger, Best Best & Krieger.

Municipalities will have greater protection against land-use litigation after the California Supreme Court’s unanimous ruling last month that property owners who proceed with permitted development projects will forfeit the right to challenge conditions imposed on their permits.

At issue in the case, Lynch v. California Coastal Commission, was a coastal development permit issued to Encinitas neighbors who proceeded to build a seawall while challenging their permit’s set limitations.

The ruling, however, goes beyond coastal development permits. Moving forward, this standard will apply equally to development permits issued by various local agencies and municipalities. The ruling effectively protects the land-use permitting process of California cities and counties by ensuring property owners are unable to challenge a permit’s imposed conditions after benefitting from the permit in the first place.

“Although plaintiffs filed an administrative mandate petition, they forfeited their objections by constructing the project,” Justice Carol Corrigan wrote in the Court’s decision.

“Without an express agreement with the agency providing otherwise, landowners who object to permit conditions … must litigate their objections in an administrative mandate proceeding before constructing the permitted project. Landowners who proceed with a project before the merits of their claims have been decided risk a finding that their objections were forfeited,” Corrigan wrote.

Since 1986, Barbara Lynch and Thomas Frick’s bluff-top properties have been protected by two shared structures—a wooden seawall at the base of the bluff and a mid-bluff erosion control structure with a concrete wall. They sought to replace these and a lower stairway leading from the bluff to the beach.

The City of Encinitas approved the project in 2009 but final approval rested with the Commission.

While the application was pending, storms damaged parts of the seawall, mid-bluff structure and stairs. The property owners requested a new permit to demolish the old structures, construct a new seawall and rebuild the stairway. Over staff objections, the Commission granted the permit under several conditions.

The conditions prohibited reconstruction of the lower stairway beyond the permit’s allowance and barred any future redevelopment from relying on the seawall as a source of geological stability. It also provided that the seawall permit would expire in 20 years, before which time, the property owners must apply for a new permit to remove the seawall, change its size/configuration or extend the authorization period.

Lynch and Frick agreed to deed restrictions affirming the permit’s special conditions were “covenants, conditions and restrictions on the use and enjoyment of their properties.”

At the same time, the property owners challenged two conditions: the 20-year expiration and lower stairway prohibition. Once they satisfied all other permit conditions though, the property owners obtained their permit and moved forward with seawall construction.

 The state’s High Court concluded the property owners obtained the benefits of the permit, by way of constructing the seawall, and therefore lost the right to challenge their objections in court.

“In general, permit holders are obliged to accept the burdens of a permit along with its benefits,” Corrigan wrote. “This rule stems from the equitable maxim, ‘He who takes the benefit must bear the burden.’”

The property owners contend the documents were signed under protest and that any delay in construction would have put their homes at risk. Ultimately, the Court said that, “the landowner is in the best position to know how strongly he objects to a particular condition, and to weigh the chance a challenge will succeed against the costs of delaying a project.”

Land owners must litigate their objections to administrative mandates before constructing the permitted project. In closing, the Court noted that this ruling will help limit litigation for local governing bodies in the land use context.

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Jeff Ballinger is a partner with Best Best & Krieger LLP and leads the firm’s Municipal Law practice group. He works with public agencies on all aspects of governmental law including the California Coastal Act of 1976. Ballinger also serves as city attorney for the cities of San Juan Capistrano and Fontana. Based in San Diego, Ballinger can be reached at