Posted by: Patricia Salkin | November 24, 2014

CA Appeals Court Invalidates Public Access Condition for Coastal Development Permit Finding it is Inequitable

Emmick owned approximately 400 acres that included an uninhabitable residence and a barn that was in disrepair. The property also included approximately one mile of shoreline along noncontiguous parcels, separated by a parcel owned by another property owner. In March 2002, Emmick applied to the County for a coastal development permit (“CDP”) to connect an existing well to the house. In June 2002, Emmick obtained over-the-counter permits authorizing dry-rot removal and roof and deck repairs. Emmick began work on the residence pursuant to the over-the-counter construction permits, but a county inspector told Emmick he had to stop work until the County issued the CDP. Emmick complied and the County did not issue a formal stop-work order. Emmick did not begin any of the work under the CDP when he died in March 2003 and SDS Family Trust (“SDS”) succeeded to the property.

Two years after Emmick initially applied for the CDP the County approved the CDP (“CDP–1”) conditioned upon SDS’s offer to dedicate a lateral easement for public access along the shorefront portion of the property. In December 2004, SDS applied to the County for another coastal development permit (“CDP–2”) to construct a 4,576–square–foot barn to replace the existing barn, which had collapsed, and for the removal of the condition requiring an offer to dedicate a lateral coastal access easement imposed by CDP–1. The Commission determined that the easement condition contained in CDP–1 was permanent and binding on the landowner, and removal of the easement condition would violate the policy favoring public access to coastal resources.

County Code section 23.03.040 exempts from CDP requirements: “All repair and maintenance activities that do not result in any change to the approved land use of the site or building, or the addition to, enlargement or expansion of the object of such repair maintenance….” The court found that the repairs here were done pursuant to the over-the-counter permits, and fell within the exemption of section 23.03.040. Emmick did not make the repairs for which he sought authorization under CDP–1, and therefore the easement requirement amounted to an unconstitutional taking. Furthermore, because neither Emmick nor SDS accepted any benefit from CDP–1, the court granted SDS’s petition for a writ of administrative mandamus.

Bowman v California Coastal Commission, 179 Cal. Rptr.3d 299 (CA App. 10/23/2014)

The opinion can be accessed at: http://www.courts.ca.gov/opinions/documents/B243015A.PDF


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