This post was authored by Matthew Loeser, Esq.

Standard Construction Company (SCC) applied for a conditional use permit to mine sand and gravel in DeSoto County, Mississippi. After the DeSoto County Board of Adjustments denied SCC’s application, SCC appealed the decision to the DeSoto County Board of Supervisors. When the Board of Supervisors denied SCC’s application, SCC appealed to the DeSoto County Circuit Court, which entered an order and opinion reversing the Board of Supervisors’ decision. The Board of Supervisors filed a motion for rehearing, which the circuit court denied.
In its motion to dismiss, SCC contended that the Board of Supervisors filed its notice of appeal ninety-six days after the circuit court entered its September 29, 2017 order, which would be outside of the thirty-day time frame set forth in Mississippi Rule of Appellate Procedure 4(a). The Board of Supervisors argued that section 11-51-75 stated that the circuit court acts as an appellate court when reviewing an appeal from a board of supervisors; thus, the Mississippi Rules of Appellate Procedure exclusively applied.As such, the Board of Supervisors argued that its motion for rehearing should be construed in the same manner as a Mississippi Rule of Civil Procedure 59 motion.
The court first set forth that Motions to reconsider filed under Mississippi Rule of Civil Procedure 59(a) and Mississippi Rule of Civil Procedure 59(e) must be filed within ten days after the entry of the judgment. Furthermore, it noted this ten-day requirement was absolute, and the court was not permitted to extend this time period. Here, the record reflected that the Board of Supervisors filed its motion for rehearing eleven days after the circuit court entered its judgment, and consequently failed to toll the thirty-day time period for filing a notice of appeal. Since the Board of Supervisors filed its notice of appeal on January 3, 2018, ninety-six days after the circuit court entered its September 29, 2017 order and opinion, the court held that it lacked jurisdiction as the appeal was untimely filed.
Desoto County v Standard Construction Company, 2019 WL 276038 (MS App. 1/22/2019)

This post was authored by Amy Lavine, Esq.

The District of Columbia Court of Appeals affirmed the approval of a planned unit development application in a case decided in December, Union Market Neighbors v District of Columbia Zoning Commission, 197 A. 3d 1063 (DC App. 12/13/2018). The case involved proposed plans for a multi-use PUD with 370 residential units, 175 hotel rooms, office space, and ground-floor retail, which was unanimously approved by the District of Columbia Zoning Commission. The PUD approval was challenged by Union Market Neighbors, which claimed that the zoning commission failed to consider the project’s adverse impacts and also asserted that the PUD would be inconsistent with the comprehensive plan. Finding that the zoning commission’s decision on the application was reasonable, however, the court dismissed these challenges and affirmed the project’s approval.

In its first point on appeal, Union Market Neighbors claimed that the commission failed to adequately consider the project’s adverse impacts on adjoining neighborhoods. The court did not agree, however, and found that the commission’s determination approving the PUD was “replete with evidence that [it] took into account the neighborhood impact of what it recognized as a major “redevelopment of an underutilized parcel.”” In particular, the court noted that the commission had conducted comprehensive reviews of the project’s impacts on transportation, utilities, and affordable housing, and in each case it found that the project would not cause adverse impacts in the surrounding neighborhoods.

The commission had rezoned the property from C-M-1 to C-3-C as part of the PUD approval, and Union Market Neighbors next contended that this rezoning was inconsistent with the city’s comprehensive plan. The plan’s Future Land Use Map (FLUM), in particular, limited development on the property to eight stories, while the PUD would allow the project to have eleven stories. As the court observed, however, the FLUM was an advisory plan and was “intended to provide generalized guides for development and consearvation decision.” Indeed, the FLUM even “explicitly contemplate[d]” that in appropriate circumstances “the PUD process may permit greater height or density.”

Union Market Neighbors also raised more general aspects of the comprehensive plan in objecting to the PUD, such as the plan’s goals of for affordable housing and the prevention of concentrated luxury development. The court still found no impermissible conflicts with the comprehensive plan, however, explaining that “these objections appear to involve policy and political considerations beyond the scope of legal review.” In light of the comprehensive plan’s various goals and policies, the court emphasized that the commission had discretion to balance these competing priorities and find that the PUD was consistent with comprehensive plan as a whole. The commission’s findings in this case also detailed the reasons for its determination that the PUD would be consistent with the comprehensive plan, and the court emphasized that Union Market Neighbors failed to identify any legal basis for overturning these conclusions.

In a footnote to its decision, the court also addressed the commission’s failure to grant Union Market Neighbors party status. The court noted that Union Market Neighbors appeared to be ineligible for party status under the city’s regulations, but ultimately found that it was unnecesssary to decide this particular matter due to Union Market Neighbors’ failure to appear at the hearing. As the court explained, the most significant right of party status is the right to cross-examine witnesses, and by failing to appear, Union Market Neighbors waived its ability to exercise this right. The court pointed out that under the regulations a failure to appear would also “be deemed to constitute the withdrawal of the party status request.” The party status issue was also moot, the court explained, because its decision did not require any remand to the commission.

Union Market Neighbors v District of Columbia Zoning Commission, 197 A. 3d 1063 (DC App. 12/13/2018)

This post was authored by Matthew Loeser, Esq.

 

Plaintiff filed this action claiming that defendants were raising approximately 20 domestic hogs on their property in violation of plaintiff’s zoning laws and that they were creating a nuisance due to the stench and flies drawn by deer and hog waste. Defendant Harvey Haney testified that privately owned deer or elk were no longer on the subject property, but admitted that he began raising hogs on the property in 2006. The record reflected that plaintiff did not offer any evidence that defendants continued to bring new hogs onto the property after 2006 or that defendants had actually began to raise hogs on the property after 2006. Nevertheless, plaintiff sought an injunction precluding defendants from continuing to raise hogs on the subject property. Defendants filed a motion for summary judgement on the basis that plaintiff’s claim was time-barred by the six-year general period of limitations under MCL 600.5813. The trial court denied defendants’ motion, holding that the statute of limitations did not apply against plaintiff because the case constituted an action in rem.

 

The court found that since there was no statutory provision holding otherwise, this claim accrued “at the time the wrong upon which the claim is based was done regardless of the time when damage results.” Here, plaintiff’s suit was for an abatement of a public nuisance that stemmed from the piggery kept on the subject property in violation of a local ordinance. As such, the wrong alleged for purposes of accrual occurred when defendants first began to keep hogs on the subject property. Because defendants presented undisputed evidence that they had kept hogs on the property since 2006, and plaintiff filed this suit in 2016, the court found plaintiff’s case was time-barred.

 

Plaintiff further contended that each day that defendants continued to keep pigs on the property constituted a separate violation for which the accrual period began anew.  The court noted that it had completely and retroactively abrogated the continuing wrongs doctrine in Michigan, including in nuisance cases. Moreover, no new wrongs accrued in this case as no evidence was presented by either party suggesting that defendants were adding new swine to the subject property. Accordingly, the court reversed and remanded the trial court’s denial of defendants’ motion for judgment.

 

Township of Fraser v Harvey, 2019 WL 254523 (MI App. 1/17/2019)

This post was authored by Amy Lavine, Esq. 

The federal district court for the Eastern District of Pennsylvania refused to grant summary judgment for either side in a recent decision involving zoning restrictions on a sober living house. Sunlight of the Spirit House had filed suit against the Borough of North Wales and its zoning hearing board, claiming that they had violated the Fair Housing Act and the Americans with Disabilities Act by refusing to grant a reasonable accommodation that would allow more than three unrelated people to reside at its residential property. Because there were disputed issues of genuine material fact, however, the district court ruled that neither of the parties was entitled to summary judgment.

 

Sunlight of the Spirit House was a nonprofit corporation created to provide sober housing for people in recovery from drug and alcohol addiction. It acquired a five-bedroom home in the Borough of North Wales and sought to use it for this purpose. The property was located in an “R-C Residential” zoning district, however, which was limited to “family” dwellings. Under the definitions in ordinance, this meant that no more than three unrelated persons could live in the house together unless the requirements for a special exception were satisfied. In particular, the ordinance provided that “the Zoning Hearing Board shall grant a special exception after ascertaining that the dwelling unit has adequate off-street parking facilities, living space, indoor plumbing, and operat[es] as a single, nonprofit and non-transient housekeeping unit [with] facilities to do their cooking on the premises which constitute a functional family equivalent…” The definition of “functional family equivalent” further specified that this encompassed  “[p]ersons living and cooking together as a single, nonprofit and non-transient housekeeping unit and having facilities to do their cooking on the premises.”

 

Sunlight of the Spirit House informed the borough that it intended to use the property for sober housing for three to ten residents, but it was initially granted a certificate of occupancy for only “three unrelated persons.” It later submitted a request for a special exception to increase the permitted occupancy to ten individuals, but the borough denied this request as well. Although the borough had received primarily negative comments from nearby residents about the occupancy increase, the official reason for its decision was that residents of Sunlight of the Spirit House would not meet the criteria to qualify as a “functional family equivalent.” In particular, residents at the sober house would not be “non-transient” because there was no lease requirement and they could live at the premises for any period of time so long as they complied with the house rules. The zoning hearing board decision also reflected concerns that there was insufficient parking for so many tenants, that Sunlight of Spirit House might not be operating as a “nonprofit” because its owners held equity in the real property, and that allowance of the special exception would generally be against the public interest and detrimental to nearby property owners.

 

On review before the federal district court for Eastern District of Pennsylvania, the court first explained that the FHA and ADA prohibit discrimination in the sale or rental of housing on the basis of disability, which includes both drug addiction and alcoholism where the addiction substantially impairs a major life activity. Claims under these statutes may allege intentional discrimination, disparate impact, or lack of reasonable accommodation, and in this case, Sunlight of the Spirit House raised intentional discrimination and reasonable accommodation challenges.

 

Regarding its claim of intentional discrimination, Sunlight of the Spirit House argued that the borough and the zoning hearing board “had a duty to put aside the impermissible prejudices of those in opposition” to its permit application, but that instead they had been clearly influenced by those prejudices in denying the special exception. Although the borough defendants responded that their decision was based on legitimate and non-discriminatory criteria in the zoning ordinance, the court noted that it was unnecessary to show any hostile motive to prove intentional discrimination, and in the context of strong discriminatory public opposition, a decision could become “tainted with discriminatory intent even if the decision-makers personally have no strong views on the matter.” At this point in the proceedings, however, the court couldn’t grant either party’s motion for summary judgment on this issue, as the record contained evidence that was favorable to both Sunlight of the Spirit House and to the borough defendants and which, if accepted by a factfinder, could justify a verdict for either party.

 

Sunlight of the Spirit House asserted in its second challenge that the zoning hearing board failed to properly consider its request for a reasonable accommodation to be treated as a “family” or a “functional family equivalent.” In support of this point it emphasized its expert testimony regarding the “necessity” of housing more than three individuals as well as its promise to limit the availability of parking for its residents. The borough defendants countered that the evidence failed to show that an accommodation was necessary, because residents would still have an opportunity to use and enjoy the property, and they claimed that they did in fact consider the requested accommodation but ultimately found it unreasonable due to parking congestion. The court found that summary was also inappropriate on this claim and explained its reasoning under the Third Circuit’s burden-shifting analysis applied to reasonable accommodation cases. Under this rule, the initial burden is on the plaintiff to demonstrate that the requested accommodations are necessary to provide an equal opportunity for disabled persons to use and enjoy a dwelling, and the burden then shifts to the defendant to show that such accommodations are unreasonable. To grant summary judgment, a court must be satisfied that there no genuine issues of material fact regarding both the necessity of the requested accommodations and whether such accommodations would be unreasonable. In this case, however, the court found that genuine issues of material fact remained as to both of these issues.

 

As to necessity, Sunlight of the Spirit House relied on expert testimony that the “optimal” environment for sober houses required seven to ten residents, but the borough presented testimony from its own expert witness that sober houses can function with as few as three residents, with five to eight being optimal. There were similar issues of fact as to the reasonableness of Sunlight of Spirit House’s requested accommodation, as the borough defendants had introduced a parking study showing that ten residents would exceed capacity, and although Sunshine of the Spirit House had offered to restrict parking to its residents, the zoning hearing board asserted that its parking concerns were based on visitors as well as residents. The zoning hearing board also claimed that the accommodation was unreasonable because allowing ten residents would “fundamentally alter the nature of the zoning program” in that the district was intended only for families and equivalent residential uses, and it relied on a financial analysis showing that Sunshine of the Spirit House failed to meet the “nonprofit” criteria of the “functional family equivalent” definition, as well as testimony establishing its failure to meet the “non-transient” criteria. Sunshine of the Spirit House raised genuine issues of material fact, however, by emphasizing that the zoning ordinance did not provide specific definitions for the terms “nonprofit” or “transient.” As the court explained, because Sunshine of the Spirit House was legally registered as a nonprofit corporation and because residents could still be “non-transient” in the absence of a traditional lease, a reasonable factfinder might conclude that Sunshine of the Spirit House was sufficiently “nonprofit” and “non-transient” to qualify as a “functional family equivalent.” In light of these various disputed material facts, neither of the parties was entitled to summary judgment.

 

Sunlight of the Spirit House, Inc. v Borough of North Wales, 2019 WL 233883 (ED PA 1/15/2019).

This post was authored by Matthew Loeser, Esq.

This case arose from the denial of an application to amend the General Development Plan for Wakefield Valley. In 2016, the developer WV DIA Westminster, LLC filed an application to amend the Wakefield Valley GDP to permit construction of fifty-three homes on what was designated as “Parcel W” of a former golf course. In December 2016, the Mayor and Common Council of Westminster, held a public hearing on the application. In January 2017, the Council held another public hearing in which it voted to deny the application, and the president of the Council directed the staff to prepare a written decision to that effect. In February 2017, the developer filed a petition for judicial review in the Circuit Court for Carroll County. In March 2017, the Council adopted Ordinance No. 876, denying the application. and the circuit court issued an order affirming the Council’s decision. The developer then filed an appeal in the Court of Special Appeals, as well as a petition for a writ of certiorai.
On appeal, the developer argued the Council’s decision denying the Application was a quasi-judicial decision, rather than a legislative act.  Furthermore, by casting its decision as an exercise of legislative judgment, the Council applied an erroneous standard and legally erred. As such, the developer claimed, the Council could not ask the court to affirm its decision on the basis that the decision was a quasi-judicial decision supported by substantial evidence. Here, contrary to the Council’s contention, the court found the application only sought to amend the Wakefield Valley GDP with respect to Parcel W. Thus, the Council reached its decision based on an examination of Parcel W on individual grounds, and was more akin to piecemeal rezoning than comprehensive rezoning. Additionally, the court found that the Council’s consideration of the Application included all of the hallmarks of a deliberative fact-finding process: the holding of an evidentiary hearing and the receipt of factual and opinion testimony, as well as documentary evidence.

 

The court next determined that, in considering the Application, the Council used a deliberative and testimonial fact-finding process. Here, the specific findings required by Westminster Code § 164-188J included whether the application substantially complied with the use and density indicated by the Master Plan or sector plan and did not conflict with other specified plans and policies. The Council was further tasked with determining whether the proposed vehicular and pedestrian circulation systems were adequate and efficient, and whether the proposed development tended to prevent erosion of the soil and to preserve natural vegetation and other natural features of the site. The court found that these findings were those that a governmental body must make during a quasi-judicial decision-making process involving proposed development on a particular property. As the court found this to be a quasi-judicial decision, it was subject to judicial review to determine whether substantial evidence in the record as a whole supported the Council’s findings and conclusions and to determine whether the Council’s decision was premised upon an error of law.
The developer argued that, under the Council’s factual findings, the Application satisfied Westminster Code § 164-188J. The record reflected, however, that the Council found the Application to have failed to substantially comply with the use and density indicated by the Wakefield Valley GDP, and that it conflicted with the general plan or other applicable City plans and policies. Moreover, if the Application were to be approved, the open space would drop to 40% after the developer build the proposed single family homes, which was contrary to the intent for the area as demonstrated through the amendments to the Wakefield Valley GDP. Accordingly, the court affirmed the circuit court’s judgement, and held that there was substantial evidence in the record as a whole to support the Council’s findings and conclusions, and that the Council’s decision was not premised upon an error of law.

WV DIA Westminster, LLC v. Mayor & Common Council of Westminister, 2019 WL 257972 (MD App. 1/18/2019)

This post was authored by Amy Lavine, Esq. 

A recent New York appellate court decision affirmed the denial of a condominium development. Although the application had been approved by the planning board, the court concluded that the architectural review board and the zoning board of appeals had independent authority to consider criteria such as impacts on surrounding property and the character of the neighborhood.

 

Livingston Development Group wanted to construct two condominium buildings in the Village of Dobbs Ferry on property overlooking the Hudson River. Following a viewshed analysis conducted by the planning board, the village board of trustees granted the developer’s application for site plan review, subject to a requirement that the developer obtain approval from the village Architectural and Historic Review Board. The review board then denied the developer’s application, based on its finding that the condominiums would be excessively out of character with the surrounding area. The zoning board of appeals affirmed the denial, but the trial court ruled in the developer’s favor and annulled the review board’s determination.

 

The appellate court held that the review board’s denial was appropriate and that the trial court should have affirmed its determination. The trial court’s decision was based on its belief that site planning issues were delegated to the jurisdiction of the planning board only and could not be considered by the review board or the zoning board of appeals. But as the court explained on appeal, the review board and the zoning board of appeals did not rely on the site plan viewshed requirements and so their denial of the condominium application did not actually “usurp” the planning board’s authority. Rather, the denial was premised on a finding that the buildings would be “so detrimental to the desirability… of the surrounding area… as to provoke such harmful effects by excessive dissimilarity,” and this finding was both reasonable and within the authority delegated to the review board and to the zoning board of appeals.

 

 

Livingston Development Group, LLC v Zoning Board of Appeals of the Village of Dobbs Ferry, 2019 WL 209016 (NYAD 2 Dept. 1/16/2019).

This post was authored by Amy Lavine, Esq.

The facts of the case involved a property owner who applied for height and area variances to build a stone wall. He also asked for a “line of sight” variance after this was suggested by the zoning board during a public hearing, and his application was then approved at the next zoning board meeting. The petitioner, who opposed the application, then commenced this proceeding to review the board’s determination.

 

The court first recited the general framework for granting area variances in New York. Pursuant to state law, zoning boards must balance the benefit to the applicant against any adverse impacts to the health, safety, and welfare of the surrounding community. This determination must also address five statutory criteria:  “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created; which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.”

 

On the facts of this case, the court found that the zoning board properly applied the balancing test for area variances and considered each of the statutory criteria. As it explained, although “the alleged difficulty was partly self-created, there was no evidence that granting the variances would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community.”

 

The court also rejected the petitioner’s argument that the zoning board had no “jurisdiction” over the property owner’s “line of sight” variance because a formal application had never been filed. The zoning board’s procedural rules, the court explained, do not have the sort of “jurisdictional” effect that petitioner claimed. The court also found that the public hearing notice for the property owner’s application adequately apprised the public of the matter being considered, including the “line of sight” variance, as the description referenced the relevant section of the village code.

 

Debordenave v Village of Tuxedo Park Board of Zoning Appeals, 2019 WL 209036 (NYAD 2 Dept. 1/16/2019).

This post was authored by Matthew Loeser, Esq.

 

Plaintiffs owned real property adjacent to a rail corridor in Newton County, Georgia. Until 2013, the Central of Georgia Railroad Company and its predecessors held easements for railroad purposes that crossed the land. Defendant United States then authorized the conversion of the railroad rights-of-way into recreational trails pursuant to the National Trail Systems Act. In a prior ruling, the court determined that the Surface Transportation Board’s issuance of a Notice of Interim Trail Use or Abandonment (“NITU”) constituted a taking with respect to property owners holding a cognizable Fifth Amendment property interest. At issue in this case was the amount of compensation owed to plaintiffs for the taking.

 

At the outset, the court found that the possibility of the trail easement being extinguished was too remote to have any value. Additionally, the court was not persuaded that typical buyers would pay a premium for abutting the trail, or that the increased access did not increase the value of the remainder parcel or the servient estate. It further reasoned that treating a county road easement as a 100% taking was appropriate because owners of land underlying an access road easement have no rights to use the underlying land other than as a member of the general public. Since plaintiffs here had no right to use the land burdened by the trail use easement other than as members of the general public, the court found that plaintiff expert’s analysis should have led him to treating the imposed trail use easement as a “100 percent fee simple take.” Moreover, while plaintiffs may have held nominal property rights in the burdened land, those rights had no pecuniary value and therefore could not impact the just compensation analysis.

 

The court next noted that while presence of the trail was a general benefit to the community as a whole, the presence of the trail also resulted in special damages to several remainder parcels due to the loss of privacy and security. Plaintiffs argued that small, single-family residential lots in Covington lost one-third of their land value due to the presence of a hiking and biking trail abutting the rear property line. The court found that plaintiffs had demonstrated that small residential parcels in Covington lost 20.5% of their land value if they were adjacent to the trail. This result was based on the credible data using twenty-four sales as data points from the comparable Fall Line Trail. Accordingly, plaintiffs were entitled to just compensation based on the diminution in value between the “before” and “after” conditions, plus proximity damages, access damages, and/or cost-to-cure damages where appropriate.

 

Hardy v. United States, 141 Fed.Cl. 1 (2018)

This post was authored by Matthew Loeser, Esq.

Petitioner Hill applied to the city to divide his property into three separate parcels. The City of Portland approved petitioner’s application, but imposed several conditions of approval. Petitioner appealed the decision to a city hearings officer, who determined that a condition requiring petitioner to dedicate a two-to-seven foot wide right-of-way along the site’s frontage along SE 122nd Avenue to accommodate future street improvements was not an unconstitutional exaction of property in violation of the Fifth and Fourteenth Amendments. The Land Use Board of Appeals (“LUBA”) affirmed this decision.

The record reflected that in determining that the city had demonstrated interests that would permit it to deny petitioner’s permit, the hearings officer failed to examine how the impacts of petitioner’s proposal substantially impeded the governmental interest or interests embodied in the city’s right-of-way design standards. The court found that this assessment was required under Nollan in order to determine whether a government had demonstrated a valid basis for denying a requested permit for purposes of determining whether an exaction of property was constitutional. Accordingly, the court held the hearings officer legally erred in his application of the Nollan/Dolan framework and LUBA erred in concluding otherwise. As such, the order of the LUBA to sustain the condition requiring petitioner to dedicate a right-of-way along SE 122nd Drive was reversed.

The court next reviewed the LUBA’s decision to affirm the city’s requirement that petitioner sign waivers of remonstrance. Here, the record reflected that the hearings officer did not find that there was a need for a local improvement district or that petitioner’s project would contribute to the need for a local improvement district and be benefited by one. Furthermore, the court noted that while LUBA may have been correct that the record contained substantial evidence to support those findings if the hearings officer had made them, that was not the analysis required. Instead, the hearings officer was required to find that there was a need for a local improvement district and that petitioner’s development would both contribute to the need for those improvements and be benefited by them. Accordingly, the court reversed and remanded the case to the LUBA.

Hill v City of Portland, 293 Or. App. 283 (8/8/2018)

This post was authored by Matthew Loeser, Esq.

As it pertains to this case, the California Coastal Act of 1976 requires local governments to develop a local coastal program (“LCP”). To comply with this requirement, the City of Solana Beach submitted an amended LUP (“ALUP”) to the Commission, which approved the ALUP with suggested modifications and the City accepted those modifications. In 2013, Beach and Bluff Conservancy (“BBC”) brought the present action for declaratory relief and traditional mandate under Code of Civil Procedure section 1085, challenging seven specific policies of the City’s ALUP as facially inconsistent with the Coastal Act and/or facially unconstitutional. The court granted BBC’s motion and petition for writ of mandate as to two of the challenged policies, and denied the motion and writ petition as to the other five challenged policies.

At the outset, the court noted that whenever the Commission reviews and decides whether to certify a local government’s LUP, it is acting in a quasi-judicial capacity. Here, the Coastal Act created new rights and obligations regarding the development and management of coastal property which did not previously exist in common law. As such, the statutory remedy provided by section 30801 to persons claiming to be aggrieved by actions and decisions of the Commission in implementing the Coastal Act was the exclusive remedy for such claimants, notwithstanding other common law remedies that may have otherwise been available. Accordingly, any challenge was required to be made by petition for writ of administrative mandate under Code of Civil Procedure section 1094.5, as expressly provided in section 30801.

BBC contended that policies 2.60.5 and 4.19 were unconstitutional because they violated the unconstitutional conditions doctrine. Specifically, BBC contends policies 2.60.5 and 4.19 facially violated the unconstitutional conditions doctrine as they did not satisfy the Nollan v. California Coastal Comm’n, 483 U.S. 825, (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) “essential nexus” and “rough proportionality” test. The court found, however, that Nollan/Dolan was inapplicable to facial challenges. Moreover, even assuming BBC’s challenges to policies 2.60.5 and 4.19 under the unconstitutional conditions doctrine did not automatically fail because they were facial challenges, the court concluded they also failed on the merits.

Policy 2.60.5 provides: “Upon application for a coastal development permit for the replacement of a private beach stairway or replacement of greater than 50% thereof, private beach accessways shall be converted to public accessways where feasible and where public access can reasonably be provided.” BBC contended that repairing or replacing existing stairways created a new burden on public access that could justify depriving private owners the right to exclude the public without compensation. Despite this contention, the policy requires conversion only where it is feasible, public access can be reasonably provided, and the stairway already partially uses public land or a land subject to a public easement or deed restriction. As such, the court determined that whether the policy would effect an exaction or physical invasion of private property for which the City must pay just compensation under the Nollan/Dolan test could be determined only on a case-by-case basis as individual property owners subject to the policy’s permit condition apply for permits to repair or replace their beach stairways. Accordingly, the court held Policy 2.60.5 did not facially conflict with constitutional principles.

Policy 4.19 provides: “New shoreline or bluff protective devices that alter natural landforms along the bluffs or shoreline processes shall not be permitted to protect new development.” The court found that Policy 4.19 was neither facially unconstitutional nor imposed a taking in most cases because the condition applied only to “new development and blufftop redevelopment on bluff property,” which for specific properties may or may not occur in the future. As with Policy 2.60.5, the extent to which the policy would cause economic harm to particular property owners could only be determined on a case-by-case basis through as-applied challenges to the policy. Furthermore, because Policy 4.19 restricted the use of property without demanding an exaction of a property interest or money as a condition of approval, the court held that the unconstitutional conditions doctrine did not apply. Therefore, the portions of the judgment granting BBC’s motion regarding Policy 2.60.5 and 4.19 were reversed.

Beach and Bluff Conservancy v City of Solana Beach, 28 Cal. App. 5th 244 (4th Dist 10/17/2018)