Posted by: Patricia Salkin | July 6, 2021

CA Appeals Court Concluded Mobile Homeowners’ Applications for Permits Were Approved by Operation of Law After the Commission Failed to Act Within Sixty Days and Reversed

This post was authored by Olena Botshteyn, Esq.

Appellants own beachfront mobile homes in the City of San Clemente. Initially the homes were single-story, but between 2011 and 2013 homeowners applied for and received permits from the California Department of Housing and Community Development (HCD) to add second stories to their properties. They additionally applied for coastal development permits from a different entity, the Coastal Commission. In their applications to the Commission, homeowners expressly stated they are not applying for changes they are making to their homes subject to the permits from HCD, including addition of second stories, but are rather applying for authorizations to make renovations on the ground around the mobile homes.

In February 2014, the Coastal Commission informed the appellants that the renovation and addition of second stories to their homes, which they already completed, was illegal without a coastal development permit. The Commission, however, allowed the appellants to apply for post-factum authorization, which they did. The Coastal Commission issued individual public notices for each of the applications and held a public hearing in July 2016. Several members of the general public submitted letters in support of the applications, however, during the meeting the commissioners largely opposed the projects, being concerned about “a need to protect visual resources and public views under the Coastal Act.” Appellants’ representative then requested to withdraw the applications and resubmit them right away, and also requested to waive the standard six-month waiting period for resubmittal and waive all additional fees. The Commission agreed to waive the waiting period but rejected to waive the fees, and then the Commission’s chair adjourned the meeting. The Commission took no further actions on the applications. Appellants then filed a petition for writ of mandate, asking the court to conclude that their applications were approved by operation of law under the Streamlining Act. The trial court denied the petition, having concluded that the requisite notice was not given for the applications to be deemed approved. Appellants then appealed.

On appeal, the court first concluded that HCD and the Coastal Commission have concurrent jurisdiction with respect to mobile homes, having evaluated the contents of the legal acts, governing these entities. The Coastal Act provides, in relevant part: “[I]n addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency, any person … wishing to perform or undertake any development in the coastal zone … shall obtain a coastal development permit.” The court thus determined that the Coastal Commission did not exceed its jurisdiction by requiring appellants to obtain a coastal development permit.

Further, the court agreed with the trial court that the applications were not effectively withdrawn during the Commission’s public meeting, as the commissioners refused to waive the fees for reconsideration, as requested by the appellants, and adjourned the meeting right after. The court then went on to evaluate whether the public notice provided by the Commission was sufficient for the applications to be deemed approved by the operation of law. The law required a respective agency to act on an application within sixty days, otherwise an application will be deemed approved provided that “public notice required by law has occurred.” The trial court relied on the Mahon ruling and agreed with the Commission that public notice required by law given by an agency must contain language stating that deemed approval will occur if the agency does not act within 60 days. The court of appeals disagreed, stating that this requirement refers only to the applicant’s notice, “if the applicant chooses to provide public notice,” but the agency must provide “whatever public notice is required by statutory, constitutional and decisional law.” The court ultimately concluded that the Coastal Commission provided the notice required by the applicable statutes and case law, which “afforded affected persons the realistic opportunity to protect their interests.” The trial court’s decision was reversed and the judgment entered in favor of the appellants.

Linovitz Capo Shores, LLC v California Coastal Commission, 65 Cal. A. 5th 1106 (6/25/2021)

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