California High Court Limits Building Permit Lawsuits

By SUDHIN THANAWALA | July 10, 2017

California property owners give up their right to pursue lawsuits challenging restrictions in building permits once they construct the project, the state’s high court said Thursday in a victory for California’s Coastal Commission, cities and counties.

The court’s unanimous ruling came in a dispute between coastal homeowners in San Diego County and the Coastal Commission over a 20-year permit for a seawall aimed at guarding against cliff erosion.

But lawyers involved in the case say it has implications for landowners throughout the state who may be considering projects such as expanding their homes or putting up a new apartment tower.

“The scope of the court’s ruling would not be limited to seawalls,” said Janis Herbstman, an attorney who filed a brief in the case on behalf of the League of California Cities and the California State Association of Counties. “It would include local land use permits as well.”

The state high court said landowners cannot accept the benefits of a government issued building permit by constructing the project, but then challenge any burdens the permit imposes in the form of restrictions on the development.

The court said allowing such challenges would upend the permitting process and could leave agencies with no way to address a project’s impacts.

“After a project has been built, it may be too late for agencies to propose alternative mitigation measures,” Associate Justice Carol Corrigan wrote for the court.

John Groen, an attorney for the plaintiffs, said the ruling was particularly bad for small property owners.

“They will be forced to put their lives and projects on hold for years while a court battle over an unlawful condition goes on,” he said in a statement. “The result is predictable: Many property owners will be forced to accept unlawful, even unconstitutional restrictions on their property simply because they can’t afford to fight.”

The homeowners behind Thursday’s lawsuit, Barbara Lynch and Thomas Frick, owned adjacent coastal properties in Encinitas. They applied for a permit to rebuild their seawall after a 2010 storm damaged the existing barrier.

The Coastal Commission approved the permit, but added a condition saying the seawall permit would expire in 20 years and could not be relied on as a source of protection and stability for any future redevelopment.

Lynch and Frick filed a lawsuit challenging the 20-year limit as unconstitutional. But while the lawsuit proceeded, they went ahead and rebuilt the wall.

Lynch’s home was in danger of collapsing into the ocean, and the homeowners said they could not wait while the lawsuit played out.

Corrigan said they could have obtained an emergency permit that would have allowed for temporary improvements.

The court did not address whether the Coastal Commission’s 20-year limit on the seawall was legal.

Homeowners say 20-year limits create uncertainty about the future of their homes that lowers their property value. Environmentalists say seawalls endanger the state’s beaches.

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