Court Allows Permit Enforcement Despite No Sanctions For 18 Years

The Coastal Commission had the authority to order removal of a private, three-hole golf course that violated development permit conditions, even though the course was in place for 18 years before the Commission took action, the Sixth District Court of Appeal has ruled.

The unanimous three-judge appellate panel overturned a trial court judge who ruled that the Coastal Commission's years of inactivity in enforcing the permit conditions barred the Commission from ordering the golf course's removal.

The Sixth District instead said that the property owner's real quarrel is with the previous property owner and a title company, neither of which revealed that an open space easement requiring native vegetation on the site of the golf course had been recorded.

In 1983, the owners of a 1.67-acre parcel on 17-Mile Drive in the Asilomar Dunes area of Pebble Beach applied to the Commission for a development permit to demolish an existing house and build a larger one. The Commission approved the permit with a condition that required 86% of the property be subject to an open space easement. In addition, the Commission required the property owners to prepare a landscape and maintenance plan for removing ice plant and other exotic plants, and for revegetating the lot with native species. The property owners, Bert and Bonnie Bonanno, recorded the easement and submitted the plan. But they later changed the landscape plan without notifying the Commission and instead built a three-hole pitch-and-putt golf course adjacent to the new house in 1985.

In 2000, Robert and Maureen Feduniak purchased the property for $13 million. The Bonannos did not disclose the easement or permit restrictions, and Old Republic Title Company did not find them. So it was a surprise in 2002 when the Del Monte Forest Foundation informed the Feduniaks that the golf course did not comply with the open space easement. The foundation notified the Coastal Commission, and in December 2002 the Commission asked the Feduniaks to submit a removal and restoration plan. When they declined the request, the Commission issued a cease-and-desist order demanding revegetation of the entire area around the house with native species.

The Feduniaks then sued the Commission. Monterey County Superior Court Judge Michael Fields ruled that the Commission was prohibited estopped, in legal terms from enforcing the cease-and-desist order against the Feduniaks. Essentially, Judge Fields ruled that the Commission should have known of the violation and taken action earlier. Because the Commission had done nothing, the Feduniaks relied on the Commission's inactivity to buy the property, Fields reasoned.

However, the Sixth District determined that Fields, who said the Commission should have known about the golf course violation because of its prominent location, got it wrong.

Although commissioners and staff members may have seen the golf course, it is "unrealistic" for them to be aware at all times of a property's permit history, Presiding Justice Conrad Rushing wrote for the appellate panel. The Commission took action as soon as it learned of the permit discrepancy, he noted.

"[W]e have found no authority suggesting that the Commission has a statutory duty to inspect all properties for compliance with conditions after a permit has been issued, let alone a duty to do so on an ongoing basis for as long as the permit is applicable," Rushing wrote. "Likewise, we have found no authority indicating that the Commission owes a duty of care to future property buyers to regularly monitor property for easement violations so as to prevent them from buying property that is in violation of application restrictions."

Estoppel in this case also required the Feduniaks to have bought the property in reliance on the Commission's inaction. But there was no evidence the Commission knowingly assented to the golf course, and there was no interaction between the Commission and the Feduniaks prior to the property purchase, the court determined.

Moreover, the court noted, estoppel is enforced against public agencies only in situations in which a "strong rule of policy adopted for the public's benefit" would not be nullified, and in which the injustice to the other party would outweigh the public interest. These conditions were not present here, the court found.

"Estopping the Commission does not punish the Commission. It would, however, injure the public, which has a strong interest in a scenic, natural coastline with native vegetation, because it would indefinitely postpone the restoration of the site to that state, a restoration that has already been delayed for over 20 years," Rushing wrote.

The property owners have asked the state Supreme Court to review the Sixth District's decision.

The Case:
Feduniak v. California Coastal Commission, No. H028931, 07 C.D.O.S. 3248, 2007 DJDAR 4067. Filed March 27, 2007.
The Lawyers:
For the Commission: Christiana Tiedemann, attorney general's office, (510) 622-2100.
For Feduniak: Michael Masuda, Noland, Hamerly, Etienne & Hoss, (831) 424-1414.