Connect with CP&DR

facebook twitter

Follow us on Facebook and Twitter

Permit Rejection Upheld; However, Court Allows Gates To Block Access

The Coastal Commission's denial of an application for after-the-fact approval of a caretaker's mobile home, a storage shed and other facilities at the site of an antenna farm in the Santa Monica Mountains has been upheld by an appellate court. However, the court ruled that the commission could not prevent the property owner from erecting gates and "to trespassing" signs.

The commission refused to approve the gates and signs across a road because hikers, equestrians and others use the road and there are "potential prescriptive rights." But the court found the prescriptive rights to be "speculative" and concluded, "[T]he commission is not vested with the authority to adjudicate the existence of prescriptive rights for public use of privately owned property."

The property at issue is a 23-acre parcel on the top of Castro Peak within Santa Monica Mountains National Recreation Area. There are towers and communications antennas of 150 to 300 feet in height on the property. SoCal Communications leased the property for the antenna farm until 2002, when LT-WR, LLC, acquired the property. That year, LT-WR submitted to the Coastal Commission an application for after-the-fact approval of a caretaker's mobile home, a storage trailer, and two metal gates with "no trespassing" signs where Newton Canyon Motorway reached the property line. The company also sought approval for a new septic system, a well and new roads, plus permission to relocate the mobile home, the storage shed and an unpermitted horse stable, and permission to remove other unpermitted structures.

After commission staff members said the application was incomplete, LT-WR revised and re-submitted materials on May 2, 2003. The commission did not respond because the file had not been reassigned after the previous staff member handling the case departed on leave. LT-WR contended the Permit Streamlining Act deemed the application complete as of June 1. The company then filed notice on November 30 that it would consider the application "deemed approved" if the commission did not act within 60 days.

Instead, the commission heard the application in January 2004 and unanimously rejected it. LT-WR then sued, asking the court to overturn the commission. The property owner argued it had a vested right to maintain the caretaker's residence, and also submitted takings, due process and equal protection claims. Los Angeles County Superior Court Judge Dzintra Janavs ruled that the commission could not prohibit the gates and signs because they are not "development" under the Coastal Act. Otherwise, Judge Janavs ruled for the commission.

Both sides appealed, and a unanimous three-judge panel of the Second District Court of Appeal, Division Three, upheld the lower court. At first, the court published only the portion of its opinion addressing the commission's appeal regarding the gates and signs. Since then, the court has published the entire opinion, which methodically addresses and dismisses each of LT-WR's arguments.

Among LT-WR's failed arguments were these: The trial court should have reviewed the matter independently, rather than applying the more deferential "substantial evidence" standard; the company need not follow the commission's process for establishing vested rights; the commission lacked authority to designate part of the site an "environmentally sensitive habitat area; the commission's rejection violated an approved 1986 land use plan for the site; there was inadequate evidence the project would have adverse visual impacts; there were no feasible design alternatives; and the commission did not let the company pursue design alternatives.

Perhaps most interestingly, the court rejected the argument that the commission lost its jurisdiction because it did not set a hearing on the application within 49 days. A provision in the Coastal Act (Public Resources Code § 30621, subdivision (a), states, "A hearing on any coastal development permit application or any appeal shall be set no later than 49 days after the date on which the application or appeal is filed with the commission." Because the commission failed to notify LT-WR that its May 2, 2003, application was incomplete, the application was deemed complete as of June 1, 2003. However, the commission did not conduct a hearing until January of the following year — long past the 49-day deadline. Because of the late hearing, LT-WR argued, the commission lost its authority to reject the application.

The court ruled that even though the statute contains the word "shall," the law is "directory" rather than mandatory. "A construction of the 49-day rule which permits the commission to retain jurisdiction, and thereby render a decision, is manifestly more practical than one which cuts off the jurisdiction of the commission and strips the commission of its authority to deny a permit application. For these reasons, we agree with the trial court that the 49-day period is not jurisdictional," Presiding Justice Joan Klein wrote.

The Second District suggested LT-WR could have filed a suit seeking to force a quicker hearing.

As for the gates and signs, the appellate panel rejected the trial court's determination that they are not "development." Instead, the Second District ruled the gates and signs are development the commission cannot prevent.

"Inherent in one's ownership of real property is the right to exclude uninvited visitors," Justice Klein wrote. "The commission's decision would deny LT-WR that right. In precluding LT-WR from barring the public from traversing its property on the theory that ‘potential exists to establish prescriptive rights for public use of this road,' the commission in effect decreed the existence of such prescriptive rights." However, the commission has no such authority, the court ruled.

The Case:
LT-WR, LLC v. California Coastal Commission, No. B187666, 2007 DJDAR 7655. Filed May 25, 2007. Ordered published in its entirety June 21, 2007 at 2007 DJDAR 9325.
The Lawyers:
For LT-WR: Fred Gaines, Gaines & Stacey, (818) 933-0200.
For the commission: Rosana Miramontes, attorney general's office, (213) 897-2000.

Search this site
Job Announcements
New Book by Josh Stephens!