A state appellate court has rejected a claim that a Coastal Commission permit condition requiring the dedication of a public access to the beach was a taking. The court ruled that the lawsuit should have been filed 20 years earlier, and that an agency’s more recent acceptance of the “offer to dedicate” did not give the landowner a new chance to sue.
The decision by the state’s Second District Court of Appeal mirrors a 2002 decision by the Ninth U.S. Circuit Court of Appeals, which also rejected a property owner’s takings claim for being filed long after the statute of limitations had expired. (Daniel v. County of Santa Barbara, 288 F.3d 375; see CP&DR Legal Digest, May 2002). In recent years, state agencies have formally accepted a number of dedications of easements or land that were required by the Coastal Commission during the 1970s and 1980s. State agencies have also become more aggressive about enforcing the public access routes required by the Commission. These activities have spurred litigation by a number of property owners, who argue that the required dedications were unconstitutional under the landmark case Nollan v. California Coastal Comm’n, (1987) 483 U.S. 825.
In Nollan, the U.S. Supreme Court ruled that the Coastal Commission’s requirement that a landowner provide a public access to the beach in exchange for a permit to build a house violated the takings clause of the Fifth Amendment because there was no reasonable relationship between the project’s impact and the condition of approval. SinceNollan, the Commission has imposed the requirement of coastal access on far fewer development applicants (see CP&DR Environment Watch, August 2002). However, courts have refused to apply Nollan’s “nexus” requirement to permit conditions approved prior to the Nollan ruling. Thus, recent litigation by landowners has failed.
The case at hand involved a permit condition imposed in 1981. At that time, the Adamson Companies sought a permit from the Coastal Commission to expand a mobile home park on Point Dume in Malibu. The Commission approved the application on the condition that Adamson provide an “offer to dedicate” (OTD) land several miles away to provide for public recreational use. Adamson did not challenge the condition and in 1983 executed the OTD, which was promptly recorded.
The Commission transferred its rights in the OTD to the Coastal Conservancy. In August 2002, the Conservancy accepted the OTD, drew up plans for public improvements and prepared to record its acceptance. But the Serra Canyon Company, Ltd., which had acquired property from Adamson in 1992 as part of a lawsuit settlement, sued the Coastal Commission. Serra argued that the original permit condition was involuntary and unconstitutional, so any attempt to accept the OTD was prohibited.
The Los Angeles County Superior Court ruled that the statute of limitations was 60 days from the Commission’s imposition of the condition. Serra appealed, but a unanimous three-judge panel of the Second District, Division Two, upheld the lower court.
In its opinion, the court cited Code of Civil Procedure § 1094.5 and Ojavan Investors, Inc. v California Coastal Com., (1994) 26 Cal.App. 4th 516, a case in which the court rejected a Malibu property owner’s challenge of deed restrictions imposed on a previous landowner because of the statute of limitations (see CP&DR Legal Digest, June 1997, August 1994). The present case was similar, the Second District determined.
“Adamson agreed to the condition imposed by the Commission and executed the OTD, thereby accepting the benefit of the permit,” Presiding Justice Roger Boren wrote for the court. “Serra, the successor owner of the property, is bound by Adamson’s waiver of its right to seek timely writ review.”
In Nollan, the landowner followed the proper procedure for an inverse condemnation claim by promptly seeking relief in court, Boren noted. Not so in the present case.
“Serra attempts to avoid the finality of the Commission’s original permit decision by arguing that it is merely challenging the Conservancy’s acceptance of the OTD. No matter how the action is styled, it remains a collateral attack on a decision that has been final for two decades,” Boren wrote. “The current claim derives solely from the Commission’s 1981 permit condition, not from the formalities involved in enforcing that condition.”
Boren then cited the Ninth Circuit’s decision in Daniel, concluding, “By accepting title to property with full knowledge that it is subject to an existing, recorded OTD, a landowner cannot claim that the exercise of the OTD amounts to a ‘taking.’ To secure a benefit (i.e. a development permit),the prior landowner conveyed away the very interest that the present owner now claims is being ‘taken’ by the government,” Boren wrote.
Serra Canyon Company, Ltd. v. California Coastal Commission, No. B165314, 04 C.D.O.S. 6245, 2004 DJDAR 8451. Filed June 15, 2004. Ordered published July 13, 2004.
For Serra Canyon: Paul Shoop, Shoop and Leanse, (310) 456-1957.
For the Commission: Rosana Miramontes, deputy attorney general, (213) 897-2000.