Why it matters: The court in Bowman originally 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. In reversing this holding, the court relied on a correction of the facts to hold that collateral estoppel is not applicable in this case.

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 reversed its earlier holding by finding that contrary to its earlier understanding, the work performed by the applicant occurred before the permit was issued and therefor was not performed in reliance on the permit. As a result, when the permit expired, the condition expired as well. The court did reaffirm the principle relied on in its earlier decision 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. Under the new fact situation, the court found that this result would be unjust.

In arriving at this conclusion, the court also considered the validity of the condition, which it had declined to do in its earlier opinion. Importantly, the court found that the condition amounted to an unconstitutional taking, lacking the “essential nexus” required by law. The court concluded that this also was a factor in concluding that collateral estoppel would result in an unjust result in this case.

As before, a petition for review by the California Supreme Court is likely. If review is accepted, it will likely be a significant decision no matter how the Supreme Court rules.

Practice Pointer: The suggested responses to this decision are largely the same as with the court’s earlier ruling.

  • 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 activities may be deemed to be acceptance of the permit and the condition.
  • The applicant should file 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.
  • The one new factor is the potential opportunity to challenge a condition that is unlawful even if the applicant performed work in reliance on the permit.