Barbara Lynch v. California Coastal Commission

After winter storms damaged the seawall protecting their blufftop

properties, homeowners sought a permit from the California Coastal Commission

(Commission) to build a new seawall and repair their beach access stairway. The

Commission granted the permit subject to several mitigation conditions. The

owners filed an administrative mandate petition objecting to two conditions but

then proceeded with construction. We hold that the owners forfeited their

challenge because they accepted the benefits the permit conferred.

I. BACKGROUND

Plaintiffs Barbara Lynch and Thomas Frick own adjacent oceanfront

properties in Encinitas. Their homes sit on a coastal bluff that cascades steeply

down to the beach and Pacific Ocean. The Encinitas shoreline is especially

susceptible to landslides. Since 1986, the properties have been protected by a

shared seawall at the base of the bluff and a midbluff erosion control structure.

The original seawall contained 20-foot wooden poles embedded in the sandy

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beach and cabled to the bluff. In the midbluff structure, railroad ties and

supporting wooden poles were tied into the bluff with steel cables. A shared

stairway provided the only access from the blufftop to the beach below. In 1989,

the Commission retroactively approved a coastal development permit for the

seawall, midbluff structure, and stairway. Plaintiffs later added concrete footings

at the base of the poles.

When the wooden poles showed significant decay, plaintiffs applied to the

City of Encinitas (City) for authorization to replace the wooden seawall and

midbluff structure with an integrated concrete wall. They also sought to rebuild

the lower portion of the stairway, which would be attached to the new wall. The

City approved the project in 2009, finding it consistent with the general plan and

municipal code. Final approval required a coastal development permit from the

Commission. While plaintiffs‟ application for this permit was pending, unusually

heavy winter storms caused the bluff below Lynch‟s home to collapse, destroying

part of the seawall, most of the midbluff structure, and the lower portion of the

stairway.

Plaintiffs sought a new permit to demolish the old structure, construct a

new tied-back seawall across both properties, and rebuild the lower stairway.

Commission staff recommended approving the proposed seawall, even though the

existing support under Frick‟s property was adequate, because the new wall would

provide greater stability and visual appeal. The proposed seawall would be

located eight feet inland from its current location, providing additional beach area

for recreation. But staff recommended disapproving the stairway, finding it

inconsistent with local coastal plan requirements discouraging private access

stairways on the bluff.

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Ultimately, the Commission approved a coastal development permit1

allowing seawall demolition and reconstruction, with the addition of midbluff

geogrid protection below Lynch‟s home. The permit was subject to several

conditions, three of which are at issue here. Special condition No. 1(a) prohibits

reconstruction of the lower stairway. Special condition No. 2 provides that the

seawall permit will expire in 20 years and prohibits future blufftop redevelopment

from relying on the seawall as a source of geologic stability or protection. Special

condition No. 3 requires that, before expiration of the 20-year period, plaintiffs

must apply for a new permit to remove the seawall, change its size or

configuration, or extend the authorization period.

Before the permit could issue, plaintiffs had to record deed restrictions

stating that special conditions of the permit were covenants, conditions and

restrictions on the use and enjoyment of their properties. They did so. Around the

same time, plaintiffs filed a petition for writ of administrative mandate challenging

the 20-year expiration conditions and the condition prohibiting reconstruction of

the lower stairway. (Code Civ. Proc., § 1094.5.) While this litigation proceeded,

plaintiffs satisfied all other permit conditions, obtained the permit, and built the

seawall.

About a year later, the Commission moved for judgment on the mandate

petition, arguing plaintiffs had waived their objections by accepting the permit

conditions and constructing the project. The trial court denied the motion.

Plaintiffs then moved for judgment, arguing the permit‟s 20-year expiration date

was unconstitutional and beyond the Commission‟s authority because it did not

mitigate impacts of this particular project. In addition, plaintiffs maintained the

Commission could not prohibit reconstruction of the lower stairway because that

activity did not require a permit. The trial court agreed with plaintiffs and issued a



1 We refer to this authorization as a permit, but technically it was an

amendment to the coastal development permit the Commission issued for the

original seawall in 1989.

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writ directing the Commission to remove the challenged conditions. The Court of

Appeal reversed in a split decision. The majority determined that plaintiffs had

waived their claims and, in any event, both conditions were valid. The dissenting

justice disagreed with all of these conclusions.

We granted review. Because we determine plaintiffs‟ claims have been

forfeited, we do not decide the legality of the challenged conditions.

II. DISCUSSION

As we have explained in various contexts, “ „waiver‟ means the intentional

relinquishment or abandonment of a known right.” (Bickel v. City of Piedmont

(1997) 16 Cal.4th 1040, 1048; see Waller v. Truck Ins. Exchange, Inc. (1995) 11

Cal.4th 1, 31.) Waiver requires an existing right, the waiving party‟s knowledge

of that right, and the party‟s “actual intention to relinquish the right.” (Bickel, at

p. 1053.) “ „Waiver always rests upon intent.‟ ” (City of Ukiah v. Fones (1966)

64 Cal.2d 104, 107.) The intention may be express, based on the waiving party‟s

words, or implied, based on conduct that is “ „so inconsistent with an intent to

enforce the right as to induce a reasonable belief that such right has been

relinquished.‟ ” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588,

598; see Waller, at pp. 31, 33-34.)

Waiver differs from estoppel, which generally requires a showing that a

party‟s words or acts have induced detrimental reliance by the opposing party.

(See, e.g., Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346,

1359.) It also differs from the related concept of forfeiture, which results when a

party fails to preserve a claim by raising a timely objection. (See In re S.B. (2004)

32 Cal.4th 1287, 1293, fn. 2.) Although the distinctions between waiver, estoppel,

and forfeiture can be significant, the terms are not always used with care. “As we

have observed previously, forfeiture results from the failure to invoke a right,

while waiver denotes an express relinquishment of a known right; the two are not

the same.” (People v. Romero (2008) 44 Cal.4th 386, 411.) The parties and courts

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below have analyzed the issue here in terms of waiver. However, the more

accurate term to describe the effect of plaintiffs‟ actions is equitable forfeiture.

Whether a waiver or forfeiture has occurred is often a factual question,

typically reviewed for substantial evidence. (Bickel v. City of Piedmont, supra, 16

Cal.4th at pp. 1052-1053.) “ „When, however, the facts are undisputed and only

one inference may reasonably be drawn, the issue is one of law and the reviewing

court is not bound by the trial court‟s ruling.‟ ” (St. Agnes Medical Center v.

PacifiCare of California (2003) 31 Cal.4th 1187, 1196.) Moreover, the

determination whether a party‟s actions constitute forfeiture is essentially legal in

nature, and thus subject to independent review. (Cf. Evans v. City of San Jose

(2005) 128 Cal.App.4th 1123, 1136 [legal issues concerning administrative

exhaustion are reviewed de novo].)

The relevant facts are not in dispute. During the review process, plaintiffs

submitted written objections to the conditions they now challenge. After the

Commission voted to approve a coastal development permit subject to the

challenged conditions, plaintiffs timely filed for a writ of mandate. While the

mandate action was pending, however, they satisfied all other conditions, obtained

the permit, and built the seawall. The trial court concluded plaintiffs‟ actions did

not bar their petition. It explained that, “by proceeding with the repairs,” plaintiffs

“have not necessarily accepted the conditions in question. No action has been

taken as to the twenty year condition[,] which can be removed after review of the

instant petition.” In addition, plaintiffs had “not undertaken any action as to the

staircase.” Contrary to the trial court, we conclude plaintiffs forfeited their right to

challenge the permit‟s conditions by complying with all pre-issuance

requirements, accepting the permit, and building the seawall.

In the land use context, a landowner may not challenge a permit condition

if he has acquiesced to it either by specific agreement, or by failure to challenge

the condition while accepting the benefits afforded by the permit. (County of

Imperial v. McDougal (1977) 19 Cal.3d 505, 511 (County of Imperial); Rossco

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Holdings Inc. v. State of California (1989) 212 Cal.App.3d 642, 654.) Generally,

challenges to allegedly unlawful conditions must be litigated in administrative

mandate proceedings. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 19; see

Code Civ. Proc., § 1094.5.)

In County of Imperial, supra, 19 Cal.3d at page 507, a conditional use

permit allowed the commercial sale of water from a residential well but required

that sales be kept within the county. The original property owner limited his sales

accordingly but sold the property two years later. The new owner refused to

comply with the restriction. (Id. at pp. 507-509.) We explained that, while the

benefits of a permit run with the land, so too do its restrictions. (Id. at p. 510.)

The original landowner waived any objection by voluntarily withdrawing his

application to export water and accepting the permit‟s benefits. (Id. at pp. 510-

511.) His successor in title was bound by this waiver. (Ibid.)

Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74 (Pfeiffer) reached a

similar result. There, the city issued a building permit but required the property

owners to grant an easement and construct a storm drain. The owners objected to

the conditions but said they would comply “ „under protest and without waiving

their rights to demand compensation.‟ ” (Id. at p. 76) After completing the

project, they sued the city for inverse condemnation, seeking compensation for the

easement and the cost of constructing the storm drain. (Ibid.) The court held they

could not state a cause of action for inverse condemnation because “a landowner

who accepts a building permit and complies with its conditions waives the right to

assert the invalidity of the conditions and sue the issuing public entity for the costs

of complying with them.” (Id. at p. 78.)2 The property owners should have



2 Although the court used waiver terminology, the facts are more consistent

with forfeiture. The Pfeiffers objected to the permit‟s conditions and complained

throughout that they were complying “ „under protest.‟ ” (Pfeiffer, supra, 69

Cal.App.3d at p. 76.) Arguably, their conduct was not an “intentional

relinquishment or abandonment of a known right.” (Bickel v. City of Piedmont,

supra, 16 Cal.4th at p. 1048.)

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challenged the conditions by a petition for writ of mandate, rather than complying

and later suing for damages. (Ibid.) The court explained that Code of Civil

Procedure section 1094.5 creates the right and furnishes the procedures to

eliminate invalid permit conditions. Property owners cannot “convert that right”

into an inverse condemnation claim by declining to pursue their proper remedy in

mandate proceedings. (Pfeiffer, at p. 78; see Hensler v. City of Glendale, supra, 8

Cal.4th at p. 19; Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172

Cal.App.3d 914, 941.)

Plaintiffs seek to distinguish these authorities. They point out that, unlike

the original landowner in County of Imperial, they did challenge the imposed

condition. And unlike the plaintiffs in Pfeiffer, they did not comply with the

conditions and later sue for damages. Instead, they sought to invalidate the

conditions in an administrative mandate proceeding. Plaintiffs may be correct

that, on these facts, they cannot be fairly said to have waived their objection, in the

sense of having intentionally relinquished it. (See Bickel v. City of Piedmont,

supra, 16 Cal.4th at p. 1048.) That conclusion, however, does not save their case.

The crucial point is that they went forward with construction before obtaining a

judicial determination on their objections. By accepting the benefits of the permit

and building the seawall, plaintiffs effectively forfeited the right to maintain their

otherwise timely objections.

In general, permit holders are obliged to accept the burdens of a permit

along with its benefits. (See Sports Arenas Properties, Inc. v. City of San Diego

(1985) 40 Cal.3d 808, 815.) This rule stems from the equitable maxim, “He who

takes the benefit must bear the burden.” (Civ. Code, § 3521.) Plaintiffs obtained

all the benefits of their permit when they built the seawall. They cannot now be

heard to complain of its burdens.

Plaintiffs‟ position is analogous to that of the landowners in Edmonds v.

County of Los Angeles (1953) 40 Cal.2d 642. The Edmonds family operated a

large trailer court in violation of zoning regulations and state law. (Id. at p. 644.)

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Local authorities agreed to grant an exception allowing additional trailers on the

property, subject to a requirement that the nonconforming use be abandoned

within three years. (Id. at pp. 645-646.) Edmonds protested this limitation when it

was first proposed but ultimately accepted all the benefits afforded by the

conditional exception. (Id. at pp. 646-650.) For three years the exception gave the

Edmonds family “definite advantages to which they were not otherwise entitled.”

(Id. at p. 650) Accordingly, they could not later challenge it. (Id. at pp. 650,

653.)3 Similarly, because plaintiffs here took advantage of their permit‟s benefits

by building a seawall, they must now accept the permit‟s conditions.

Plaintiffs urge that because the objectionable permit conditions did not

affect the design or construction of the seawall, it was possible to challenge the

conditions while the project was being built. Noting the instability of the coastal

bluffs, plaintiffs argue they should not have had to await the outcome of litigation

before taking action to protect their homes. They essentially ask us to create a

new exception to the forfeiture rule, allowing landowners to accept the benefits of

a permit under protest if the challenged restrictions can be severed from the

project‟s construction. We decline to do so for a number of reasons.

When the Legislature addressed this subject, it authorized a narrow

exception for challenges to permit conditions imposing a fee or similar exaction.

The Mitigation Fee Act (Gov. Code, § 66000 et seq.) establishes a procedure by

which developers may proceed with a project and still protest the imposition of

fees or a possessory interest in property. (See Sterling Park, L.P. v. City of Palo

Alto (2013) 57 Cal.4th 1193, 1206-1207 (Sterling Park).) In general, if a

developer has tendered payment of the disputed fee and given written notice of the



3 Our holding in Edmonds was phrased in terms of estoppel because the

zoning authorities had “relied to their detriment” on the plaintiffs‟ promise to end

their nonconforming use. (Edmonds v. County of Los Angeles, supra, 40 Cal.2d at

p. 653.) However, the principles expressed are equally applicable in the context of

equitable forfeiture.

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grounds for protest, local agencies cannot withhold project approval during

litigation of the dispute. (Gov. Code, § 66020, subds. (a)-(b).) If the challenge is

successful, the agency must refund the unlawful fees with interest. (Gov. Code,

§ 66020, subd. (e).)

Before the Mitigation Fee Act, developers that wished to challenge the

legality of a fee had to delay construction until mandamus proceedings ended.

(See McLain Western #1 v. County of San Diego (1983) 146 Cal.App.3d 772, 776-

777; Pfeiffer, supra, 69 Cal.App.3d at p. 78.) The Mitigation Fee Act authorized a

simultaneous challenge, but only for “fees, dedications, reservations, or other

exactions.” (Gov. Code, § 66020, subd. (a).) While the term “other exactions”

encompasses “actions that divest the developer of money or a possessory interest

in property, . . . it does not include land use restrictions.” (Sterling Park, supra, 57

Cal.4th at p. 1204.) Plaintiffs essentially seek to extend the Mitigation Fee Act to

land use restrictions that can be separated from a project‟s construction. Their rule

would significantly expand the statute, contrary to its language and evident

legislative intent. (See Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, 543-

544.) If such an expansion is needed, the Legislature is the appropriate body to

create it.

Creating an under protest exception would also potentially swallow the

general rule that landowners must take the burdens along with the benefits of a

permit. Permit applicants frequently accept conditions they dislike in order to

obtain a permit. “If every owner who disagrees with the conditions of a permit

could unilaterally decide to comply with them under protest, do the work, and file

an action in inverse condemnation on the theory of economic coercion, complete

chaos would result in the administration of this important aspect of municipal

affairs.” (Pfeiffer, supra, 69 Cal.App.3d at p. 78.) An exception allowing

applicants to challenge a permit‟s restrictions after taking all of its benefits would

change the dynamics of permit negotiations and would foster litigation.

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Although plaintiffs argue their exception would be limited to conditions

that can be challenged without disrupting a project‟s construction, it could be

difficult to determine whether a particular condition is truly severable. For

example, here plaintiffs contend the 20-year expiration condition has no bearing

on the seawall‟s construction. If the condition is valid, the seawall‟s permit will

expire in 20 years; if it is not valid, the permit will continue beyond 20 years. The

example illustrates the problem. The Commission imposed the expiration

condition as a means of mitigating the seawall‟s adverse effects on the coastal

environment. If a court invalidated the condition before the wall‟s construction,

the Commission could have adjusted by directing that the seawall be located

farther inland, for example, to account for additional sand loss beyond 20 years.

Or, it might have required alterations in the wall‟s size or design. But if the

condition is invalidated after the seawall has been built, alternative mitigation

measures related to the design or placement of the wall, which might follow such a

ruling, would be rendered unrealistic or impossible. Plaintiffs complain that

whether the Commission would have required alternative mitigation measures

rests on speculation. As a matter of equity, however, plaintiffs bear the weight of

this uncertainty because their actions created it.

Requiring that parties seek to invalidate permit conditions in administrative

mandate proceedings before proceeding with a project “serves the salutary purpose

of promptly alerting the [agency] that its decision is being questioned” and allows

the government to mitigate potential damages. (California Coastal Com. v.

Superior Court (1989) 210 Cal.App.3d 1488, 1496.) After a project has been

built, it may be too late for agencies to propose alternative mitigation measures.

They may be left with no practical means of addressing a project‟s significant

impacts. Land use planning decisions entail a delicate balancing of interests. An

under protest exception to the general waiver rule would upset this balance and

inject uncertainty into the planning process.

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One might argue the Commission could have avoided this problem by

declining to issue the permit after plaintiffs filed their administrative mandate

action. Plaintiffs do not stress this point, presumably because they would prefer a

rule allowing projects to proceed under protest over one encouraging permits to be

withheld if they have challenged conditions. Denial of the permit may not have

been possible here. According to the Commission, once a landowner satisfies all

pre-issuance conditions, including recording deed restrictions that expressly

promise all permit conditions will be honored, issuance of the permit is a purely

ministerial act that Commission staff are powerless to interrupt. Even assuming

the Commission‟s authority could be broadened in this regard, however, we

believe the better rule puts the onus on landowners to resolve their challenges

before accepting the benefits of a permit. The landowner is in the best position to

know how strongly he objects to a particular condition, and to weigh the chance a

challenge will succeed against the costs of delaying the project.

Plaintiffs protest that imposing a forfeiture under these circumstances could

put homeowners in a serious bind. The Commission approved the seawall because

Lynch‟s blufftop home was in danger of collapsing into the sea.4 Postponing

construction until mandate proceedings had concluded would have left plaintiffs‟

homes at significant risk. If proceeding with a project constitutes a forfeiture,

plaintiffs argue property owners under similar duress could be coerced to accept

unlawful permit conditions, simply because they cannot wait months or years for

litigation to conclude.



4 Although the bluff supporting Frick‟s home was more stable, the

Commission allowed the seawall to extend across his property because continuing

erosion would likely threaten it in the near future.

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However, when safety is an issue, property owners can address imminent

dangers by obtaining an emergency permit. (Pub. Resources Code, § 30624.)5

Emergency permits generally authorize temporary improvements, needed for

immediate relief when loss or damage is threatened. (Barrie v. California Coastal

Com. (1987) 196 Cal.App.3d 8, 17.) In Barrie, for example, coastal homeowners

began constructing an unpermitted seawall in anticipation of heavy storms. (Id. at

p. 12.) The Commission authorized the work under an emergency permit, though

it required that the homeowners obtain a regular permit for a permanent seawall at

the location. (Id. at pp. 12-13.) Similarly, here, plaintiffs could have sought an

emergency permit for a temporary seawall to protect their properties during

litigation. Plaintiffs would have been aware of this option because they obtained

an emergency permit to clean up debris from storm damage to the previous

seawall.

Temporary erosion protection under an emergency permit would have

preserved the status quo pending the outcome of litigation. Because

administrative mandate proceedings are often streamlined and subject to local fast

track requirements (see Smith-Chavez et al., 2 Cal. Civil Practice: Real Property

Litigation (1st ed. 2005) Land Use and Zoning Litigation, § 14:42, p. 14-52 et

seq.), delay of a project‟s construction may be minimized.6 Moreover, although it

was likely impossible here, in some cases the parties may be able to reach an

agreement allowing construction to proceed while a challenge to permit conditions

is resolved in court. A clear agreement of this sort could prevent a finding of

equitable forfeiture.



5 In truly dire circumstances, immediate repairs can be made without an

emergency permit. (See Pub. Resources Code, § 30611; Cal. Code Regs., tit. 14,

§ 13144.)

6 Although some amici curiae protest that an agency‟s notice of intent to

issue a permit could expire before mandate litigation has concluded, courts can

presumably address such problems by issuing appropriate stay orders. (See Code

Civ. Proc., § 1094.5, subd. (g).)

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In conclusion, although plaintiffs filed an administrative mandate petition,

they forfeited their objections by constructing the project.7 Without an express

agreement with the agency providing otherwise, landowners who object to permit

conditions not covered by the Mitigation Fee Act must litigate their objections in

an administrative mandate proceeding before constructing the permitted project.

Landowners who proceed with a project before the merits of their claims have

been decided risk a finding that their objections were forfeited.

The judgment of the Court of Appeal is affirmed.