A Malibu property owner can't rely on the so-called "Calvo exclusion" - which exempts single-family homes from Coastal Commission jurisdiction - because the property owner had previously agreed to submit to the commission's control, the Second District Court of Appeal has ruled.
"Appellant has taken inconsistent positions in this litigation, first waiving the right to further litigate the Calvo exclusion and agreeing to obey any Commission order regarding restoration of the property, and later asserting the Calvo exclusion and denying any obligation to obey Commission orders," the court wrote.
It is the second Calvo exclusion case handed down by California appellate courts in recent months. In December, the Second District Court of Appeal re-affirmed a ruling to overturned a $2 million takings judgment against the Coastal Commission as the result of a jurisdictional dispute based on the Calvo exclusion.
The case began in 1991, when the Coastal Commission sued property owner Amir Tahmassebi, charging that he had graded and filled his land and installed a culvert without seeking a permit from the commission, which has jurisdiction over coastal property. A year later, Tahmassebi and the Coastal Commission stipulated a judgment in which the Tahmassebi greed to obtain various permits, pay a fine of $15,000 and restore the property to its original state, if restoration was necessary, within 30 days of filing the restoration application.
In November of 1994, more than two years after the stipulated judgment, the Coastal Commission ordered Tahmassebi to restore the property. In January of 1998, the Commission went to court to enforce the motion for enforcement of the judgment. The Commission alleged that Tahmassebi had not restored the property - as the Commission's order required - but instead had filed a restoration application that called not for restoration but rather called for the retention of the illegal development project in place. The Commission also charged that Tahmassebi had engaged in "false promises" and delays but had never complied.
L.A. County Superior Court Judge Daniel A. Curry ruled in favor of the Coastal Commission, but Tahmassebi appealed. His main argument on appeal was that the Calvo exemption applied to his house. The Calvo exemption waives the requirement for a coastal development permit in the case of single-family homes which meet specified criteria dealing with location and water supply.
Los Angeles County had, indeed, issued a Calvo exemption to Tahmassebi. But the Coastal Commission argued that the county had later ordered the property owner to seek a coastal permit.
The Calvo exemption issue had been part of the case since the beginning - a fact that worked against Tahmassebi. The Second District ruled that Tahmassebi had waived his right to further litigate the Calvo exemption when he signed the stipulated judgment against him in 1992. Among other things, the Second District rejected Tahmassebi's claim that jurisdiction - that is, the Coastal Commission's jurisdiction over the property - cannot be conferred by the consent of the property owner. The Second District ruled that the Coastal Act gave Judge Curry clear subject matter jurisdiction over the issue, and furthermore argued that Tahmassebi's real beef was not with subject matter jurisdiction but with his allegation that the Coastal Commission exceeded that jurisdiction.
The case was originally filed in October but was ordered published in January by the Supreme Court.
The Case:
California Coastal Commission v. Tahmassebi, No. B122210, 99 Daily Journal 484 (issued October 2, 1998, ordered published January 13, 1999).
The Lawyers:
For Tahmassebi: Thomas N. Banks, (310) 451-8831
For California Coastal Commission: Daniel A. Olivas, Deputy Attorney General, (213) 346-2688.
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