SAN FRANCISCO -- The California Supreme Court ruled July 6 that Encinitas homeowners forfeited their claims when they went ahead with repairs before a final judgment was made in their petition for a permit to rebuild a storm-damaged seawall that protects their homes.

California Supreme Court Judge Carol Corrigan referenced a similar case from 1977, saying “a landowner may not challenge a permit condition if he has acquiesced to it either by specific agreement, or by failure to challenge the condition while accepting the benefits afforded by the permit”.

Plaintiff Thomas Frick in front of his home seawall.
Plaintiff Thomas Frick in front of his home seawall. | http://www.latimes.com/local/lanow/la-me-ln-coastal-permit-court-20170706-story.html

Barbara Lynch and Thomas Frick are neighbors in adjacent properties in Encinitas. After a winter storm caused the bluff below Lynch’s home to collapse, destroying part of the seawall and stairway, the homeowners sought a permit to demolish the old structure and construct a seawall across both properties with a stairwell. The California Coastal Commission granted the permit for a new seawall, but prohibited building a stairway. The petition also disclosed that any future bluff-top redevelopment cannot rely on the seawall as a source of geologic stability or protection, and placed a 20-year expiration on the permit.

Lynch and Frick filed a petition challenging the 20-year expiration conditions and the condition prohibiting reconstruction of the lower stairway, saying that the commission couldn’t prohibit that as it did not require a permit. The commission moved for judgment on the petition, arguing the plaintiffs had waived their objections by accepting the permit conditions and constructing the project during the litigation process. 

The trial court denied the motion, agreed with plaintiffs, and issued a writ directing the commission to remove the challenged conditions.

The court of appeals reversed the ruling in a split decision. Noting the instability of the bluffs, the plaintiffs argued they should not have had to await the outcome of the suit before acting to protect their homes.

Corrigan noted, “They essentially ask us to create a new exception to the forfeiture rule, allowing landowners to accept the benefits of a permit under protest if the challenged restrictions can be severed from the project’s construction.”

The state supreme court determined that Lynch and Frick did forfeit their claims to challenge the permit’s conditions by complying with all pre-issuance requirements, accepting the permit, and building the seawall, affirming the court of appeals decision.

Lynch and Frick were represented by Axelson & Corn, Pacific Legal Foundation, with attorneys James S. Burling, John M. Groen, Paul J. Beard II and Jennifer F. Thompson.

California Supreme Court, case Number S221980

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