Why it matters: The Court in Bowman held that a permit condition could not be modified or deleted by a second permit that included the same project, even if the first permit had expired.
Facts: An applicant applied for a Coastal Development Permit (CDP) to develop a parcel of land in San Luis Obispo County, which included a mile of shoreline. The CDP was approved by the County, acting as the Coastal Act Permitting Authority. One condition of the CDP was a requirement that the applicant dedicate a public coastal access easement. The applicant did not appeal the issuance of the CDP or the condition of approval. After the permit became final, the applicant applied for a second CDP (CDP-2), requesting the removal of the easement condition. The County approved CDP-2, including the removal of the coastal access condition. The County approval was appealed to the California Coastal Commission. The Commission determined that the easement condition was permanent and binding on the applicant.
The Decision: The Court in Bowman held that a party who is dissatisfied with a quasi-judicial administrative decision must attack it directly by appealing the matter and, if unsuccessful, by filing a writ of mandamus. If not, the issues decided will be deemed conclusively determined against the party and so will preclude the landowner from attacking that determination in a subsequent quasi-judicial proceeding even if the condition was unlawful and even if the permit had expired.
This holding, if it stands, as a petition for review by the California Supreme Court is likely, would not be limited to Coastal Act permits and would apply to any quasi-judicial approval, such as a tentative map, a conditional use permit or a variance. This presents a significant challenge for developers and land use practitioners, who would not have expected such a result.
Practice Pointers: Some suggested responses to this decision are the following:
- If it appears that a final decision-making body intends to impose a condition that is not acceptable to an applicant, the applicant should consider withdrawing the application before a final vote is taken.
- If the permit becomes final, and the applicant is unwilling to accept the condition, the applicant should advise the public agency of that fact in writing and should undertake no activities authorized by the permit, because any such undertaking may be deemed to be acceptance of the permit and the condition.
- The filing of a writ of mandate challenging the condition, as the Bowman Court held. It should be noted that there is a very short limitation period for filing challenges to land use decisions. In most cases it is 90 days, during which the petition must not only be filed but also served.