Kretowicz v. Cal. Coastal Commission CA4/1 (2015) · DecisionDepot
Kretowicz v. Cal. Coastal Commission CA4/1
California Court of Appeal Sep 28, 2015 No. D066072Unpublished
Filed 9/28/15 Kretowicz v. Cal. Coastal Commission CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DIANNE KRETOWICZ, D066072 as Trustee, etc. et al.,
Plaintiffs and Appellants, (Super. Ct. No. v. 37-2011-00097607-CU-MC-CTL)
CALIFORNIA COASTAL COMMISSION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
Gaines & Stacey and Sherman Louis Stacey, Nanci S. Stacey for Plaintiffs and
Appellants.
Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney
General, Jamee Jordan Patterson, Deputy Attorney General for Defendant and
Respondent.
James S. Burling and Christopher M. Kieser for Amicus Curiae Pacific Legal
Foundation.
Appellants Dianne Kretowicz and Ure Kretowicz, as trustees of the DUK Trust
dated September 9, 1994 (hereafter the Kretowiczes) filed a verified petition for writ of
mandate and complaint against respondent California Coastal Commission (Commission)
in part challenging Commission's decisions to require the Kretowiczes to irrevocably
dedicate public access easements as a condition of their requested amended coastal
development permit for improvements on their La Jolla property. Commission found in
part that there was a history of public access at the site warranting Commission
protection, and that the Kretowiczes' predecessor had accepted the benefits of a permit in
which it had imposed such a condition on the basis of such historic use, precluding the
Kretowiczes' challenge. The trial court denied the Kretowiczes' petition, as well as their
request for declaratory relief, and dismissed a cause of action seeking quiet title against
Commission.
The Kretowiczes appeal from the ensuing judgment in Commission's favor,
contending the trial court reversibly erred by denying their petition and entering judgment
because (1) it did not provide them with notice or trial on their declaratory relief and
quiet title causes of action; (2) Commission's findings are inadequate, unsupported by the
evidence, and beyond its jurisdiction; (3) the court relied on inapposite case authority;
and (4) substantial evidence does not support the court's conclusion that the Kretowiczes'
predecessor in interest accepted Commission's public access condition.
We conclude Commission's findings are supported by substantial evidence, and
that the Kretowiczes' predecessor's failure to timely appeal Commission's decision to
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grant her permit on condition she record an irrevocable offer to dedicate public access
easements bars the Kretowiczes' challenges, including their claim that Commission's
action constitutes an unconstitutional taking. We reject the Kretowiczes' remaining
contentions, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Kretowiczes own a single family home on Princess Street in La Jolla (the
property), on a lot extending to the shore of the Pacific Ocean, with approximately
190 feet of ocean frontage. In 1978, the property was owned by Jane Baker. In March
1978, Baker applied to the San Diego Coast Regional Commission (the Regional
Commission)1 for a coastal development permit to construct a large addition to the then
existing house. In June 1978, the Regional Commission approved the permit, designated
No. F6760, subject to special conditions relating to geology, slope integrity and drainage.
Permit No. F6760 states that its "terms and conditions shall be perpetual, and it is the
intention of the parties to bind all future owners and possessors of the subject property to
said terms and conditions."
Legal challenges ensued, including appeals (designated Nos. 221-78 and 133-79)
from decisions of the Regional and State Commissions as well as a superior court petition
for writ of mandate. In the writ petition, the appellant asserted that Commission had
1 Commission is the successor in interest to the Regional Commission. (Pub. Res. Code, § 30331.) Statutory references are to the Public Resources Code unless otherwise specified. 3
failed to make specific public access findings required by the Coastal Act of 1976
(§ 30604). Baker, the real party in interest, participated in those proceedings. Baker
completed her proposed construction pending the legal proceedings.
On September 20, 1979, Commission unanimously granted Baker's permit for her
proposed development, and imposed new special conditions for lateral and vertical public
shoreline access.2 Commission's supporting findings acknowledged that the Coastal Act
required that public access to and along the shoreline be maximized; staff stated in part
that adequate access to the beach below the property did not exist nearby and "[a]lthough
the public has historically had access over the project site, construction of the project has
preceeded [sic] the use of this accessway, thereby diminishing the public's right of access
to the state owned tidelands. An alternative accessway must, therefore, be provided to
offset the burdens this development has placed on [the] public's constitutional right of
access and to assure the conformity of the project to the provisions of [section 30212] of
the [Coastal] Act."3 Commission also made findings about the historical public access to
2 Vertical access is roughly perpendicular to the shoreline. Lateral access allows members of the public to walk along portions of the shoreline. (See City of Malibu v. California Coastal Com. (2005) 128 Cal.App.4th 897, 899.)
3 The Kretowiczes do not challenge the sufficiency of the evidence of Commission's finding of historic public access, and the record contains ample evidence of longtime access by the public prior to 1979. Section 30212, subdivision (a) provides in part: "Public access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects except where (1) it is inconsistent with public safety, military security needs, or the protection of fragile coastal resources, (2) adequate access exists nearby, or (3) agriculture would be adversely affected." 4
the beach in response to Baker's position, stating: "The applicant contends that, because
of the steepness of the bluff, the accessway would not be safe and therefore need not be
provided . . . . This site has historically been used for access to the shoreline below. A
site inspection revealed that it was not difficult to walk down the bluff face and, if minor
improvements were made, the access way could be easily traversed with little damage to
the landforms. The Commission concludes that public access can be provided consistent
with public safety and must, therefore, be provided to find the proposed project consistent
with the Coastal Act." The special permit condition required Baker to submit for
approval, prior to the permit's issuance, "a document irrevocably offering to dedicate to a
public agency or private association approved by the Executive Director easements for
public access to and along the shoreline in accordance with the provisions of this
condition." Commission's decision required that the document "shall be irrevocable for a
period of 21 years running from the date of recordation" and "shall constitute a covenant
running with the land in favor of the People of the State of California binding the
applicant, heirs, assigns and successors in interest to the subject property."
Days after Commission heard the matter, a representative for the appellant in the
legal proceedings wrote to Commission's legal department to inform it that Baker was
contemplating not making the offer of dedication; that Baker might take the position that
she had built her construction under a valid permit. Several months later, the appellant's
representative noted in a letter to the attorney general that Commission had voted to find
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Baker in violation and had referred the matter to the attorney general for enforcement.
The representative asked the attorney general to penalize Baker for her violation of the
dedication condition.
Baker did not submit an irrevocable offer to dedicate the easement. In 1980, she
sought to amend permit No. F6760 to approve already completed drainage that differed
from the prior permit condition. She eventually sold the property. In an April 1989
handwritten "statement of understanding" to the buyer signed by Baker, Baker's son who
was also her sales representative wrote: "Jane Baker has agreed to California Coastal
Commission stipulations, File #A-133-791/F6760, dated Sept. 20, 1979. These
provisions state generally the requirements for drainage and easement conditions. It is
understood that any purchase by you would require acknowledgment of these
declarations, including the future recording of emergency or public access to the beach."4
4 According to the Kretowiczes, Commission did not make any findings relating to this document. They suggest, and Amicus Pacific Legal Foundation asserts, that this document is a forgery based on declarations the Kretowiczes produced in support of their motion for new trial. But Commission did find Baker had accepted the permit's benefits, as did the trial court. In assessing whether Commission's findings are supported by substantial evidence and the findings support its decision, any reasonable doubts must be resolved in favor of Commission, which is the sole arbiter of the evidence and judge of credibility. (See Paoli v. California Coastal Com. (1986) 178 Cal.App.3d 544, 550; Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970-971.) The Kretowiczes have not shown the statement of understanding is so suspect that we should reject Commission's decision as unreasonable. (See Reddell v. California Coastal Com. (2009) 180 Cal.App.4th 956, 962 [" ' "Courts may reverse an agency's decision only if, based on the evidence before the agency, a reasonable person could not reach the conclusion reached by the agency," ' " italics omitted].) 6
Thereafter, the property became bank-owned through foreclosure. In early 1994,
the Kretowiczes purchased the property from Union Bank. At that time, the La Jolla-La
Jolla Shores Local Coastal Program Addendum (La Jolla LCP) identified shoreline
access at Princess Street, stating in part: "As a condition of a permit to build a single-
family house, the State Coastal Commission required the owner of the bluff top lot to
dedicate a 4-foot wide vertical easement along one side of the property from the Princess
Street cul-de-sac to the shoreline. The owner has challenged the validity of the condition
and no offer of dedication has been made. The State Attorney General has apparently
decided not to pursue an enforcement of the condition, although the possibility of future
litigation remains. The site represents one of two potential routes to a remote section of
shoreline accessible only during low tides."
The Kretowiczes File for a Coastal Development Permit Following the City of San
Diego's Discovery of Unauthorized Improvements
In 1997, the Kretowiczes applied for a coastal development permit after a code
enforcement complaint reported numerous unpermitted landscape and hardscape
improvements. Though the City of San Diego eventually issued the permit,5 that
decision was appealed to Commission on grounds it was inconsistent with permit No.
F6760's public access requirements and the Kretowiczes withdrew the application. As
5 The City of San Diego had recommended the planning commission approve the permit, acknowledging Commission's 1979 requirement of a public access easement, but the City recommended dedication of an easement for limited use such as for educational activities and lifeguard rescue. 7
early as 2001, the Kretowiczes went ahead with numerous unpermitted improvements,
for which they were assessed civil penalties in December 2007.
Commission Denies The Kretowiczes' Request for Relief from the 1979 Public Access
Dedication Requirements, finding the Conditions Valid as Against Them
In July 2004, the Kretowiczes applied for a new coastal development permit.
After Commission advised them their proposed work required an amendment to permit
No. F6760, in August 2004 they filed an application to amend permit Nos. F6760 and
F6760A, eventually denominated by Commission as No. A-133-79-A1/F6760A2, to
authorize certain improvements and offering to provide lifeguard rescue access to the
beach below. In a May 2005 report, Commission staff observed: "It was routine practice
at the time for the State Commission to assign a different permit number when a Regional
Commission permit was appealed to it. The permit would then be issued with the State
Commission number, not the Regional Commission number. Here, however, the
Regional Commission permit had been issued during the litigation/appeal and therefore,
the permit as initially issued had the F6760 number of the Regional Commission. Thus,
the permit is identified by two numbers. It should be noted that the conditions of
approval of F6760 all addressed what construction was approved or how the construction
should occur, and are not the type of conditions that continue to apply indefinitely. Thus,
since the addition was already completed when the State Commission acted on the
appeal, the conditions of F6760 had already been met. Therefore, it was appropriate for
the State Commission to simply impose the additional condition that was necessary for
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public access, rather than reissue the permit with all the conditions. To avoid any
confusion, and for the sake of completeness, the permit for the addition is identified as
CDP A-133-79-F6760." Staff disagreed with the Kretowiczes' position that permit No.
A-133-79 had expired, stating: "The State Commission permit, A-133-79, which was an
appeal of F6760, was effectively issued at the time it was approved because the
development had already commenced. Because the permit that was on appeal had
already been issued by the Regional Commission and the addition was already
completed, the wording of the condition for public access imposed by the State
Commission in A-133-79 indicating that the condition had to be satisfied 'prior to
issuance of the permit' was an oversight or poor choice of words." Commission staff
found "CDP A-133-79 is valid and that the condition of approval continues to apply to
the applicant's property."
Commission approved the permit amendment for certain of the improvements but
denied the Kretowiczes' request to modify the 1979 public access condition. It found the
Kretowiczes were bound by the 1979 public access condition because by completing her
construction under coastal development permit No. F6760, Baker had accepted the
benefits of the permit; removal of the public access condition would be inconsistent with
requirements of the Coastal Act (§§ 30210-30212); and there was substantial evidence of
public prescriptive rights or an implied dedication of a public easement, obligating
Commission to ensure development did not interfere with such historical use.
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The Kretowiczes filed a legal challenge and Commission cross-complained, but in
2007 and 2008 they entered into settlement agreements that in part would have postponed
any public access easement for specified periods of time, including 15 years after the
death of both Kretowiczes. The Kretowiczes applied for permit amendments to reflect
the settlement agreements' terms. Though Commission staff initially recommended that
Commission approve the permit on those conditions, the Commissioners rejected the
permit amendment's terms in the face of heavy public opposition. Ultimately, in July
2011, Commission approved the Kretowiczes' requested permit amendment subject to
special public access condition Nos. 2 and 3, requiring them to execute and record
irrevocable offers to dedicate lateral and vertical public access easements. In revised
findings, Commission stated that in 1979 it found substantial evidence of historic public
use requiring the need for Baker to record an irrevocable offer of dedication and that
though years had passed, those facts remained the same. It found Ure Kretowicz was a
sophisticated developer who knew about development permit requirements, and had he
checked with Commission's district office, he would have learned of the permit history
and its public access requirements. Commission found the requirement for an irrevocable
offer of dedication was "still valid today."
The Present Action Challenging Commission's 2005 and 2011 Decisions
The Kretowiczes petitioned for a writ of mandate, and in February 2012, filed a
first amended petition challenging Commission's 2005 and 2011 actions and asserting,
among others, causes of action for declaratory relief, quiet title, unconstitutional taking,
injunctive relief and violation of their civil rights. Commission successfully demurred to
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the injunctive relief and civil rights causes of action, and thereafter the court bifurcated
the writ of mandate issues from the declaratory relief and quiet title claims. In part, its
order states that the writ of mandate issues will be heard separately from the third and
fourth causes of action for declaratory relief and quiet title, and "[t]he Court will set a
further trial date on the declaratory relief and the quiet title causes, if necessary, after the
ruling on the writ of mandate."
After examining the administrative record as well as the pleadings and documents
in the petition, and hearing the parties' arguments, the trial court issued a statement of
decision denying the Kretowiczes' writ of mandate causes of action. It ruled
Commission's decisions were supported by substantial evidence of historic public use;
that the public access condition ran with the land and Baker's failure to record the
dedication did not extinguish the public's right to access, but was irrelevant because Ure
Kretowicz, a prominent real estate developer, would have learned of the permit
conditions had he gone to Commission's office. It further found Baker had knowledge of
the permit condition but never challenged it, rendering it free from collateral attack. The
court ruled estoppel, laches, and waiver did not apply to the public access condition. The
court dismissed the Kretowiczes' quiet title cause of action, ruling Commission had no
claim to any property interest in the Kretowiczes' property and they could not maintain
such a cause of action. As to the Kretowiczes' request for declaratory relief, the court
denied it on grounds the statute of limitations did not preclude Commission from
enforcing the public access condition because (1) passage of time would not legalize
ongoing violations of such conditions and (2) Code of Civil Procedure section 315 did
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not apply to the property, which was deemed for public use under the public access
condition.
The Kretowiczes unsuccessfully moved for a new trial, and thereafter filed this
appeal.
DISCUSSION
I. Judgment on Declaratory Relief and Quiet Title Causes of Action
The Kretowiczes contend the court reversibly erred by entering judgment on their
declaratory relief and quiet title causes of action without notice or trial, after having
bifurcated the writ of mandate claims. They argue that under Code of Civil Procedure
section 594 they were entitled to notice that those claims were to be tried, but the court
only gave notice that the writ of mandate causes of action were to be tried. According to
the Kretowiczes, entry of judgment without the sending of that notice is reversible error
under Urethane Foam Experts, Inc. v. Latimer (1995) 31 Cal.App.4th 763, 767.
The contention is without merit. Code of Civil Procedure section 594 states in
part: "In superior courts either party may bring an issue to trial or to a hearing, and, in
the absence of the adverse party, unless the court, for good cause, otherwise directs, may
proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the
case may require; provided, however, if the issue to be tried is an issue of fact, proof shall
first be made to the satisfaction of the court that the adverse party has had 15 days' notice
of such trial . . . ." The purpose of this provision is to prevent the possibility of
proceedings taken against a party in his absence where that person has, by reason of
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insufficient notice or no notice of the time of trial, been unable to appear. (Au-Yang v.
Barton (1999) 21 Cal.4th 958, 962-963.) Compliance with the statute is mandatory in
that a court may not shorten the time for notice or fail to give notice and then proceed in a
party's absence. (Id. at p. 963.) Thus, in Urethane Foam Experts, Inc., the appellate
court reversed a judgment entered after a trial at which the defendant did not appear
because notice was improperly sent. (Urethane Foam Experts, Inc., supra, 31
Cal.App.4th at p. 767.) Because in this case there was no issue of the trial court
proceeding with a trial in the Kretowiczes' absence, they have shown no violation of that
statute or reversible error stemming from any purported lack of notice.
The Kretowiczes next contend they were entitled to a trial of facts that were at
issue in their causes of action, and that the trial court's judgment deprived them of the
right to present and admit evidence and the right to examine and cross-examine
witnesses. They maintain they were entitled to a civil trial to prove with sworn testimony
that Commission was subject to estoppel, waiver and laches, and the court had no
authority to enter judgment against them without such a trial. As Commission correctly
points out, however, declaratory relief is not appropriate to review an administrative
decision. (State of California v. Superior Court (1974) 12 Cal.3d 237, 249 ["It is settled
that an action for declaratory relief is not appropriate to review an administrative
decision"]; see also City of Pasadena v. Cohen (2014) 228 Cal.App.4th 1461, 1466-1467;
San Mateo County Coastal Landowners' Assn. v. County of San Mateo (1995) 38
Cal.App.4th 523, 558; Walter H. Leimert Co. v. California Coastal Com. (1983) 149
Cal.App.3d 222, 230-231; compare Pacific Legal Foundation v. California Coastal Com.
13
(1982) 33 Cal.3d 158, 168-169 [quasi-legislative actions of administrative agencies, such
as Commission's adoption of guidelines in interpreting the Coastal Act's access policies,
are reviewable by declaratory relief or traditional mandamus].)
Finally, the Kretowiczes contend that because the 1979 easement requirements are
a claim or "cloud" on their title, they were entitled to a trial on their claim for quiet title.
Concededly, a claim for purposes of an action for quiet title is "intended in its broadest
possible sense" and includes a cloud upon title. (Cal. Law Revision Com. com., 17A
West's Ann. Code Civ. Proc. (2015 supp.) foll. § 760.010, p. 84.) "[A] quiet title action
requires 'antagonistic property interest[s].' [Citation.] In other words, a plaintiff cannot
obtain a quiet title judgment unless someone claims a conflicting interest in the same
property as the plaintiff." (Harbour Vista, LLC v. HSBC Mortg. Services Inc. (2011) 201
Cal.App.4th 1496, 1511.) This requires that the plaintiff prove a title in himself superior
to that of the defendant. (Harbour Vista, LLC, at p. 1511.)
In their cause of action for quiet title, the Kretowiczes alleged Commission
claimed an "interest adverse to [them] in the Property in that the Commission claims that
there is an obligation to record an offer of dedication for public access that runs with the
Property and that [they] took its interest in the Property subject to said obligation."
(Some capitalization omitted.) The Kretowiczes alleged its interest was not subject to the
condition or to "Unissued Permit A-133-79," and sought as of August 5, 2005, to "quiet
title against any claim of the Commission as set forth above." (Some capitalization
omitted.) The Kretowiczes' quiet title cause of action sought to litigate not a title issue,
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but Commission's imposition of the 1979 public access condition on their sought-after
development permit, and thus was in substance and effect a challenge to Commission's
decision, which, as stated, must be tested via a writ of mandate. Upon determining the
Kretowiczes had no viable challenge via mandate to Commission's decision, a decision
we uphold, the trial court did not err in dismissing their quiet title cause of action.
II. Denial of Petition for Writ of Mandate
A. Appellate Standard of Review
Section 1094.5 of the Code of Civil Procedure sets out the procedure for judicial
review of final administrative determinations by petitions for writ of mandate. (Fukuda
v. City of Angels (1999) 20 Cal.4th 805, 810.) We review Commission's decision for an
abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of discretion is
established if Commission has not proceeded in a manner required by law, the order or
decision is not supported by the findings, or the findings are not supported by the
reviewing the agency's decision, the trial court examines the whole record and considers
all relevant evidence, including evidence that detracts from the decision.' [Citation.]
Substantial evidence means evidence 'of ponderable legal significance.' [Citation.] The
evidence ' " ' "must be reasonable in nature, credible, and of solid value . . . ." ' " ' "
(Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1260.)
The trial court reviews questions of law differently: it " 'exercises independent
judgment on pure questions of law, including the interpretation of . . . judicial
precedent.' " (Schafer v. City of Los Angeles, supra, 237 Cal.App.4th at p. 1261, quoting
McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912, 921-922.)
An appellate court's review of the administrative record for legal error and
substantial evidence in a mandamus case is the same as the trial court's: this court reviews
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the agency's action, not the trial court's decision. (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427; Ross v.
California Coastal Com. (2011) 199 Cal.App.4th 900, 922.) We examine all relevant
materials in the entire administrative record to determine whether the agency's decision is
supported by substantial evidence. (Ross, at p. 922; McAllister v. California Coastal
Com., supra, 169 Cal.App.4th at p. 921.) " 'Although this task involves some weighing
to fairly estimate the worth of the evidence, that limited weighing does not constitute
independent review where the court substitutes its own findings and inferences for that of
the Commission. Rather, it is for the [agency] to weigh the preponderance of conflicting
evidence, as [the court] may reverse its decision only if, based on the evidence before it, a
reasonable person could not have reached the conclusion reached by it.' " (McAllister, at
p. 921, quoting Kirkorwoicz v. California Coastal Com. (2000) 83 Cal.App.4th 980,
986.)
This court presumes Commission's findings and actions are supported by
substantial evidence; it is the Kretowiczes' burden to demonstrate to the contrary. (Ross
v. California Coastal Com., supra, 199 Cal.App.4th at p. 921; McAllister v. California
Coastal Com., supra, 169 Cal.App.4th at p. 921.)
B. The Trial Court Did Not Err by Reviewing Commission's Decision for Substantial
Evidence
As a threshold argument, the Kretowiczes contend the trial court erred by not
applying its independent judgment on Commission's decision; they suggest Commission's
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action amounts to a "confiscation" and they have a fundamental right to be free from a
physical taking of their private property. We conclude these arguments are misplaced,
and the trial court applied the correct review standard for Commission's decision.
This court has explained that "[a] fundamental vested right has been termed a right
'already possessed' [citation] or 'legitimately acquired' [citation]. ' "[A] vested right for
review purposes means a preexisting right while a vested right for construction means a
right the government is estopped to deny." ' " (Barrie v. California Coastal Com. (1987)
196 Cal.App.3d 8, 14-15.) The same test determines whether a right is vested or
fundamental. (Id. at p. 15.) "The term 'vested' in the sense of 'fundamental vested rights'
in an administrative mandate proceeding is not synonymous with the 'vested rights'
doctrine relating to land use development. [Citation.] Courts rarely uphold the
application of the independent judgment test to land use decisions. [Citation.] Cases
upholding such application typically involve 'classic vested rights'—i.e., a vested right to
develop property in a particular way." (Amerco Real Estate Company v. City of West
Sacramento (2014) 224 Cal.App.4th 778, 783, citing Goat Hill Tavern v. City of Costa
Mesa (1992) 6 Cal.App.4th 1519, 1527.)
In circumstances involving development permits, "an owner of property acquires a
vested right to construct a building where the conduct of the government amounts to a
representation that such construction is fully approved and legal, and in reliance on such
representation the owner materially changes position." (Stanson v. San Diego Coast
Regional Com. (1980) 101 Cal.App.3d 38, 49.) Thus, in Stanson, an agent of the regional
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commission told the plaintiff he did not need a coastal development permit to remodel his
restaurant, and he obtained building permits and expended substantial amounts of money
remodeling. (Stanson, at p. 42.) The regional commission thereafter advised him he in
fact required a permit, and denied his permit request, which the state Commission
affirmed. (Id. at p. 43.) This court concluded under these circumstances that his asserted
right was vested and fundamental, and that the trial court should have reviewed the
Commission's decision under the independent judgment review standard. (Id. at pp. 49-
50.)
In Barrie v. California Coastal Com., supra, 196 Cal.App.3d 8, this court rejected
homeowners' claim they possessed a fundamental vested right for purposes of trial court
review where Commission had issued them a temporary permit to build a protective
seawall, but later required them to remove and relocate the seawall. (Id. at pp. 12-15.)
The homeowners could not establish a vested right to continue the seawall as a matter of
law, in part because their claim did not rest on an affirmative misrepresentation by
Commission that approval would be perfunctory, and strong public policy militated
against granting individuals vested rights to permanent structures based on temporary
permits. (Id. at p. 16-17.)
The Kretowiczes assert that our decision in Barrie is incorrect in that it did not
"critically examine[]" which test applied to a Commission decision involving a seawall's
placement. We read the case differently, and observe it thoroughly and correctly
examined the rights and issues at hand. The inquiry here is whether the Kretowiczes
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have a vested or fundamental right to an unconditional coastal development permit for
their desired improvements by reason of Commission's representation that such
construction was approved and legal. (See Stanson v. San Diego Coast Regional Com.,
supra, 101 Cal.App.3d at p. 49.) They have not established any such representation by
Commission concerning their proposed development, and thus we conclude they did not
have a right to a permit that was either already possessed or legitimately acquired so as to
require the trial court to exercise its independent judgment on Commission's decision.
C. Commission's Finding that Baker Accepted the Public Access Conditions in Permit
No. F6760 is Supported by Substantial Evidence, and the Conditions are Enforceable
Against the Kretowiczes as a Matter of Law
The Kretowiczes advance several challenges to the trial court's decision denying
their petition for a writ of mandate. They contend the court erred by denying their
petition because Commission failed to make findings that their proposed property
improvements had a nexus or rough proportionality to the public access conditions under
Nollan v. California Coastal Com. (1987) 483 U.S. 825 or Dolan v. City of Tigard (1991)
512 U.S. 374 (Nollan/Dolan). They contend Commission's finding of an implied
dedication, and the trial court's finding that the 1979 easement requirements had priority
20
over their title, lack substantial evidence in the record.6 They maintain the court erred by
applying what they term "collateral estoppel" to the 1979 public access conditions
because (a) application of such a doctrine does not comport with fairness or sound public
policy; (b) Commission's right to assert the doctrine was waived, estopped, and barred by
laches or the statute of limitations; and (c) Commission acted beyond its subject matter
jurisdiction in finding the existence of an implied dedication.
As we explain, the Kretowiczes are precluded from raising their Nollan/Dolan
challenge, or their challenge to Commission's finding of historic public use supporting an
implied dedication,7 because their predecessor in title, Baker, elected not to appeal
Commission's September 20, 1979 findings and decision to impose the public access
conditions on permit No. F6760 and any such claims are barred by the 60-day statute of
6 We reject outright as without pertinent authority the Kretowiczes' arguments concerning the trial court's supposed finding of priority of title, and their obligation to go to Commission's San Diego office to ask about their property. Their arguments are that the finding "was no more than self-serving speculation by the [Commission]"; that Commission "has no authority to judge priorities of instruments under the Civil Code," and Commission "was judging the priority of its own claim." The sole authority relied upon by the Kretowiczes (El-Attar v. Hollywood Presbyterian Med. Ctr. (2013) 56 Cal.4th 976, 995), however, involves a hospital peer review proceeding and is cited for the collateral proposition that "[a] fair hearing requires an impartial adjudicator." The Kretowiczes do not articulate any argument under a separate heading that Commission denied them a fair hearing. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
7 The Kretowiczes' cited authority, LT-WR, L.L.C. v. California Coastal Com. (2007) 152 Cal.App.4th 770, does not in any event support its challenge to Commission's fundamental subject matter jurisdiction, which was not implicated by its findings or imposition of the permit conditions. (California Coastal Com. v. Superior Court (1989) 210 Cal.App.3d 1488, 1501; see Mt. Holyoke Homes, LP v. California Coastal Com. (2008) 167 Cal.App.4th 830, 841 [Commission had subject matter jurisdiction as long as the appeal to it presented a substantial issue].) 21
limitations for such a challenge. Because Baker proceeded with her proposed
construction under permit No. F6760 during the appeals to the regional Commission and
then the state Commission, after which Commission imposed the public access conditions
on permit No. F6760, she assumed the benefits of that permit as well as the risk that
Commission might add the challenged dedication conditions. Given Baker's failure to
challenge Commission's decision to impose the conditions, we uphold Commission's
finding that they are valid and the Kretowiczes are bound by them.
Section 30801 declares that "[a]ny aggrieved person shall have a right to judicial
review of any decision or action of the commission by filing a petition for a writ of
mandate in accordance with Section 1094.5 of the Code of Civil Procedure within 60
days after the decision or action has become final." (Italics added.) "[S]ection 30801's
60-day period constitutes a statute of limitations and generally bars untimely efforts to
challenge coastal commission rulings." (Strother v. California Coastal Com. (2009) 173
Cal.App.4th 873, 878; see Ojavan Investors, Inc. v. California Coastal Com. (1994) 26
Cal.App.4th 516, 525 ["the time to challenge coastal development permits . . . is within
the statutory 60–day period after issuance of the permits . . . , not when a party or a
successor in interest elects to violate declarations of restrictions imposed pursuant to the
permits, and a cease and desist order ensues"].) Commission's September 20, 1979 vote
to impose the public access conditions on the improvements for which Baker sought
permit No. F6760 was a "decision or action" falling within this category.
22
The law in California is settled that "[a] landowner cannot challenge a condition
imposed upon the granting of a permit after acquiescence in the condition by either
specifically agreeing to the condition or failing to challenge its validity, and accepting the
benefits afforded by the permit." (Rossco Holdings Inc. v. State of California (1989) 212
Cal.App.3d 642, 654, citing County of Imperial v. McDougal (1977) 19 Cal.3d 505, 510-
511 ["A number of cases have held that a landowner or his successor in title is barred
from challenging a condition imposed upon the granting of a special permit if he has
acquiesced therein by either specifically agreeing to the condition or failing to challenge
its validity, and accepted the benefits afforded by the permit"]; see also Bowman v.
California Coastal Com. (2014) 230 Cal.App.4th 1146, 1152; Salton Bay Marina, Inc. v.
Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 941.) If conditions imposed in a
permit are invalid, Code of Civil Procedure section 1094.5 provides a landowner the right
and procedures to eliminate them, and if the landowner declines to avail himself of those
procedures, he cannot convert that right into a cause of action in inverse condemnation.
(Hensler v. City of Glendale (1994) 8 Cal.4th 1, 19; Rossco, at pp. 654-655; see also
Serra Canyon Co., Ltd. v. California Coastal Com. (2004) 120 Cal.App.4th 663; Pfeiffer
v. City of La Mesa (1977) 69 Cal.App.3d 74, 78, modified by statute as stated in Sterling
Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193, 1200 and Hensler, at p. 19, fn. 9.)
These principles are reflected in several cases, some of which the Kretowiczes
seek to distinguish as involving recorded instruments or conditions. In California
Coastal Com. v. Superior Court (Ham) (1989) 210 Cal.App.3d 1488, Commission in
23
1985 approved a coastal development permit on condition the property owner record an
offer to dedicate an easement for public access across the strip of beach in front of his
home. (Id. at p. 1492.) The landowner recorded the offer to dedicate, Commission
issued the permit, and the landowner completed the project. (Ibid.) Three years later,
following the decision in Nollan, supra, 483 U.S. 825, the landowner sued Commission
for inverse condemnation, alleging the permit condition requiring dedication of a public
beach access easement amounted to an unconstitutional taking of private property
without compensation. (Id. at pp. 1492, 1495.) This court issued a writ directing the trial
court to sustain Commission's demurrer to the complaint, concluding that the landowner's
failure to challenge the permit condition in an administrative mandamus action barred his
action for damages. We agreed with the State's position (id. at p. 1495) that Ham's
challenge was barred by his failure to file a writ petition within the 60-day limitations
period from Commission's decision: "Quite clearly, a property owner seeking to recover
on an inverse condemnation claim against the Commission in a case such as this must
first establish the invalidity of the condition the Commission sought to impose. An
administrative mandate proceeding provides the proper vehicle for such a challenge.
Even in the post-First Lutheran world [First English Evangelical Lutheran Church v.
County of Los Angeles (1987) 482 U.S. 304], requiring that an inverse condemnation
claim be joined with an administrative mandate action filed within 60 days after the
Commission decision becomes final serves the salutary purpose of promptly alerting the
Commission that its decision is being questioned and that the State may be liable for
24
inverse condemnation damages. We are aware of nothing which would prohibit the
Commission, knowing of such a challenge, from temporarily staying enforcement of a
challenged condition in order to mitigate the potential damages. Were the rule as Ham
proposes, a property owner could delay nearly five years until the statute of limitations
for an inverse condemnation action had almost expired, simply allowing his damages to
accrue in the interim. In given cases and certainly in the aggregate, the financial burden
on the state could be overwhelming." (Id. at p. 1496.)
This court further held that as long as an agency has subject matter jurisdiction
over the issue before it, its decisions are subject to res judicata even if they turn out to be
incorrect. " 'It is an established rule that where a tribunal has jurisdiction of the parties
and of the subject-matter it necessarily has the authority and discretion to decide the
questions submitted to it even though its determination is erroneous. . . . This rule
applies to quasi-judicial tribunals as well as to courts.' [Citations.] Here, the commission
quite clearly had subject matter jurisdiction and the authority to impose permit conditions
reasonably related to any burdens on the public beach created by the construction of
Ham's residence. [Citation.] The fact that it incorrectly analyzed the relationship
between the burdens and the condition it sought to impose—or perhaps more accurately,
incorrectly anticipated the action of the United States Supreme Court—does not mean it
acted in excess of its jurisdiction in the fundamental sense. If he believed the
Commission was wrong, Ham had a remedy by way of judicial review. Having failed to
avail himself of that recourse, he now has no basis for complaint." (California Coastal
Com. v. Superior Court, supra, 210 Cal.App.3d at p. 1501, fn. omitted.)
25
In Serra Canyon Co., Ltd. v. California Coastal Com., supra, 120 Cal.App.4th
663, Commission granted plaintiff's predecessor a permit on condition he record an
irrevocable offer of dedication of property for public recreational use. (Id. at p. 666.)
That condition became final in 1981. (Id. at p. 669.) The predecessor did not challenge
the condition, but in 1983 executed and recorded it, giving the state fee title to the
property. (Ibid.) Commission transferred its rights to the dedication to the coastal
conservancy, which in 2002 adopted a resolution to accept it and planned to record it.
(Id. at p. 666.) Before the conservancy did so, the plaintiff, who had purchased the
property more than a decade after its predecessor applied for the permit, challenged the
offer to dedicate on grounds it was void and an unconstitutional taking. (Id. at p. 667.)
Relying on its prior decision in Ojavan Investors, Inc. v. California Coastal Com.,
supra, 26 Cal.App.4th 516, Serra Canyon held that by agreeing to the condition, the
predecessor accepted the benefit of the permit, and because he did not seek judicial
intervention to avoid the condition, the plaintiff was bound by the predecessor's waiver of
its right to seek timely writ review. (Serra Canyon Co., Ltd. v. California Coastal Com.,
supra, 120 Cal.App.4th at p. 668.) This was the case even where the plaintiff argued
Commission was carrying out an unconstitutional taking of its property: "Compliance
with procedural writ requirements 'remains a necessary predicate to institution of inverse
condemnation proceedings' [Citation.] 'Regardless of whether [the plaintiff] pleads its
cause of action as one for inverse condemnation or as a denial of due process, the
essential underpinning of its recovery is the invalidity of the administrative action. That
26
action must be reviewed by petition for writ of administrative mandate.' " (Id. at p. 669.)
And the Serra Canyon court made clear the rule applied even when the aggrieved
individuals asserting inverse condemnation were successors in interest to prior owners
who accepted the burdens and benefits of the Commission's conditional permits. (Ibid.,
citing Ojavan, at pp. 524-535.)
Here, there is no dispute that on September 20, 1979, following the appeals of
permit No. F6760's approval, Commission granted Baker's permit on the condition that
she record an irrevocable offer of dedication for public access. The Kretowiczes concede
that during the appeals, Baker had completed her construction under permit No. F6760,
as Commission so found in 2005 and 2011. Baker signed, recorded, and accepted the
benefits of permit No. F6760 by constructing the authorized improvements. Though
issued, that permit did not become final until the conclusion of the legal challenges,
which resulted in Commission's imposition of the public access condition. (§ 30623 ["If
an appeal of any action on any development by any local government or port governing
body is filed with the commission, the operation and effect of that action shall be stayed
pending a decision on appeal"]; see Russian Hill Improv. Asso. v. Board of Permit
Appeals (1967) 66 Cal.2d 34, 39, fn. 11 [a permit achieves finality only when the right to
invoke the discretionary reviewing authority has been exhausted]; Gabric v. City of
Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 203 ["A permit is deemed final when
the administrative appeal has been finally decided or the time for appeal of the grant or
27
denial has expired"].) Baker participated in the appeals, involving a claim that the permit
approval was absent required findings concerning public access,8 and she assumed the
risk that Commission might thereafter decide to impose new conditions to the permit
under which she completed her construction. Commission in fact made this decision,
which Baker did not challenge. These circumstances support Commission's finding that
Baker accepted the permit's benefits, and the law compels our conclusion that after the
permit became final, the Kretowiczes cannot now assert their constitutional and other
challenges to Commission's actions, notwithstanding the passage of time.
Under the circumstances, we reject the Kretowiczes' arguments concerning
collateral estoppel. That doctrine was not invoked by the trial court, and to the extent
courts have dealt with it in this context (see Bowman v. California Coastal Com., supra,
230 Cal.App.4th 1151-1152) the matter involved an entity in privity with a prior owner.
(Id. at p. 1149 [family trust succeeded to owner who had applied for a coastal
development permit]; see Gikas v. Zolin (1993) 6 Cal.4th 841, 849 [elements of collateral
estoppel].) No such circumstances are presented here.
8 Also, title 14 of the California Code of Regulations, section 13320, provides in part: "Upon receipt in the commission office of a timely valid appeal by a qualified appellant the executive director of the commission shall notify the permit applicant and the affected local government that the operation and effect of the coastal development permit has been stayed pending final action on the appeal by the commission as required by Section 30623 of the Public Resources Code." (See also Mt. Holyoke Homes, LP v. California Coastal Com., supra, 167 Cal.App.4th at p. 834.) 28
We further reject the Kretowiczes' assertion that there is no evidentiary support, or
any Commission finding, for the proposition that Baker became bound to the 1979 public
access conditions by proceeding with construction under permit No. F6760. They argue
the evidence does not support a finding that Baker accepted the 1979 conditions in
reliance on that permit, "which had no access easement." They suggest Baker could not
be bound by conditions unknown to her until after her construction was completed. The
Kretowiczes also point to the trial court's statement of decision finding that "Baker
eventually acknowledged the Commission's determination regarding the public
easement," and assert Commission never made any such finding. According to the
Kretowiczes, the trial court "could not supply a finding not made by looking at evidence
in the record."
These arguments are predicated on the incorrect notion that Commission's decision
on the appeal of permit No. F6760 somehow constituted a new permit decision or was
entirely unrelated to permit No. F6760. These arguments also ignore record evidence
that Baker was fully aware of, and participated in, the appeal proceedings on permit No.
F6760, which put at issue the prospect of public access findings and Commission action
to preserve such access. As stated, permit No. F6760 was not final pending the appeals,
and did not become so until its conditions were fulfilled. It was not necessary that Baker
expressly accept the permit condition. Her construction under that permit, and ensuing
failure to challenge the Commission's decision to impose the public access conditions, is
enough to support denial of the Kretowiczes' petition, regardless of the trial court's
29
reasoning. (Scott v. City of Del Mar (1997) 58 Cal.App.4th 1296, 1305 [we review the
trial court's order, not its reasoning, and affirm if it is correct on any theory apparent from
the record]; LT-WR, L.L.C. v. California Coastal Com., supra, 152 Cal.App.4th at p. 806,
fn. 7.)
D. Estoppel and Other Equitable Defenses Do Not Apply
The Kretowiczes contend the trial court erred by rejecting their claims that
Commission should be estopped from enforcing the public access conditions imposed in
1979, or is subject to waiver and laches. They point out Commission sought to enforce
the conditions for the first time in 2001, after having been notified that Baker would not
comply with the 1979 requirements. According to the Kretowiczes, Commission's 22-
year "silence" was not explained, and any public interest involved in obtaining access to
the shoreline cannot outweigh the potential injustice to them, which assertedly is an
unconstitutional physical invasion of their property. We conclude no exceptional
circumstances justify a finding of estoppel here.
"It is well established that 'an estoppel will not be applied against the government
if to do so would effectively nullify "a strong rule of policy, adopted for the benefit of the
public . . . ." ' [Citations.] ' "The courts of this state have been careful to apply the rules
of estoppel against a public agency only in those special cases where the interests of
justice clearly require it." ' [Citation.] The ' "facts upon which such an estoppel must rest
go beyond the ordinary principles of estoppel and each case must be examined carefully
and rigidly to be sure that a precedent is not established through which, by favoritism or
30
otherwise, the public interest may be mulcted or public policy defeated." ' " (Poway
Royal Mobilehome Owners Assn. v. City of Poway (2007) 149 Cal.App.4th 1460, 1471,
quoting City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 493 (Mansell); see also
County of Los Angeles v. Berk (1980) 26 Cal.3d 201, 222; City of South San Francisco v.
Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 923.) Thus, "[e]ven if the
four elements of equitable estoppel are satisfied, the doctrine is inapplicable if the court
determines that the avoidance of injustice in the particular case does not justify the
adverse impact on public policy or the public interest." (Schafer v. City of Los Angeles,
supra, 237 Cal.App.4th at p. 1261.) This inquiry is not solely a question of fact, but it is
in part a question of law that must be considered from the point of view of a court of
equity. (Lentz v. McMahon (1989) 49 Cal.3d 393, 403; Smith v. County of Santa Barbara
(1992) 7 Cal.App.4th 770, 776.)
In land use cases in particular, courts "severely limit[] the application of estoppel
. . . ." (Schafer v. City of Los Angeles, supra, 237 Cal.App.4th at p. 1262; see also
Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 259
["[a] party 'faces daunting odds in establishing estoppel against a government entity in a
land use case' "]; West Washington Properties, LLC v. Department of Transportation
(2012) 210 Cal.App.4th 1136, 1146 ["the weight of the authority indicates government
inaction rarely forms a proper basis to estop the government from enforcing a law
intended to benefit the public"].) The overriding concern " ' "is that public policy may be
adversely affected by the creation of precedent where estoppel can too easily replace the
31
legally established substantive and procedural requirements for obtaining permits."
[Citation.] Accordingly, estoppel can be invoked in the land use context in only "the
most extraordinary case where the injustice is great and the precedent set by the estoppel
is narrow." ' " (Schafer, at p. 1263.)9
In Mansell, extraordinary circumstances warranted an estoppel when the
government had encouraged private development of tidelands that it had dredged, filled
and thus operated to reclaim since the turn of the century, resulting in the benefit to
thousands of residents of a significant array of public facilities for navigation and
recreation. (Mansell, supra, 3 Cal.3d at pp. 470-471, 486, 500.) The California
Constitution forbade the transfer of certain public tidelands to private persons (id. at p.
478), and so the court was presented with whether, in the face of such public policy
reflected in the constitutional provision, it could apply an estoppel effectively quieting
title in public lands in private persons. There, the court held the "the rare combination of
government conduct and extensive reliance here involved will create an extremely
9 In such context, the elements of estoppel are that (1) " 'the party making the admission by his declarations or conduct, was apprised of the true state of his own title' "; (2) the party " 'made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud' "; (3) " 'the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge' "; and (4) the other party " 'relied directly upon such admission, and will be injured by allowing its truth to be disproved.' " (Mansell, supra, 3 Cal.3d at p. 490.) The court made clear that the third requirement was "interpreted to mean that a person seeking to raise an estoppel . . . be destitute not ' "of all possible means of acquiring knowledge of the true state of the title, but rather of all convenient or ready means to that end." ' " (County of Los Angeles v. Berk, supra, 26 Cal.3d at p. 222, fn. 13; quoting Mansell, at pp. 490-491.) 32
narrow precedent for application in future cases. . . . We are here concerned with
thousands of homeowners who, through the long continuing conduct of the government
entities involved, have been led to believe and have acted upon the belief that the lands
upon which they reside are their own private properties. Because similarly compelling
circumstances will not often recur, the public policy [at issue] will not suffer substantial
erosion as a result of the decision we reach today." (Ibid.)
To the contrary is Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th
1346 (Feduniak), in which the court declined to estop Commission from enforcing cease
and desist and restoration orders relating to an open space easement in the face of its
regulatory inaction. There, the plaintiffs had purchased property that had been
landscaped to include a three-hole golf course in violation of a 1983 permit restricting
development of the property under an open space easement. (Id. at pp. 1352-1354.)
When the plaintiffs purchased the property in 2000, the then owners did not disclose the
easement or permit restrictions (id. at p. 1355), and plaintiffs obtained a preliminary title
report but neither it nor the final report disclosed the easement restrictions. (Ibid.)
Plaintiffs did not consult with Commission, check its files or otherwise rely on any
representations or information from Commission in purchasing the property. (Id. at p.
1355.) Commission thereafter issued orders requiring plaintiffs to comply with the
easement by removing the course and restoring the land to its natural state. (Ibid.)
The trial court found the plaintiffs had no actual knowledge of the recorded
easement or permit restrictions, that Commission's acquiescence had contributed to their
33
lack of knowledge, and plaintiffs had relied on Commission's inaction. (Feduniak, supra,
148 Cal.App.4th at p. 1358.) The appellate court reversed. (Id. at p. 1351.) It refused to
apply the doctrine of equitable estoppel notwithstanding plaintiffs' lack of knowledge of
the easement and permit restrictions, Commission's failure to act, and the substantial
expense to the landowners of restoring the land to its natural state. It held: "[E]stopping
the Commission because of its prior regulatory inaction would nullify otherwise valid
restrictions adopted for the public benefit . . . . 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. . . . [T]he people of the state, acting through the Legislature,
have unequivocally voiced a strong preference for the natural state of the coast and
deemed it to be a valuable asset that must be protected, preserved, restored, and
maintained, especially in [environmentally sensitive habitat areas] and areas adjacent to
them." (Id. at p. 1377.) "Moreover, applying estoppel because of regulatory inaction
could undermine the Commission's ability to enforce existing and future permit
restrictions on property along the entire coast that the Commission has not been able to
monitor for compliance." (Id. at pp. 1377-1378.)
The Court of Appeal observed that the trial court had been persuaded by plaintiffs'
argument that their property was not in or near an environmentally sensitive habitat.
(Feduniak, supra, 148 Cal.App.4th at p. 1378.) However, Commission's designation of
34
the property as such was not subject to litigation or dispute, as the 60-day period to
challenge the restriction had long expired before the plaintiffs purchased the property.
(Ibid.) And the court rejected the plaintiffs' claim they were "innocent purchasers"
because "once the period to challenge the restrictions had expired and they were
recorded, they became immune from collateral attack by the original property owner and
successor owners." (Id. at p. 1379.) On this same basis, the court rejected amicus
arguments that the easement and permit conditions would be constitutionally suspect if
they were presently imposed on the project because they did not meet the Nollan/Dolan
standards. (Id. at p. 1379, fn. 11.10) The Court of Appeal acknowledged the costs to the
plaintiffs of removing the golf course and losing its future enjoyment, but it held that
individual loss of enjoyment did not outweigh the public's strong interest in eliminating
on ongoing unpermitted development, finally restoring the area to its natural state, and
protecting Commission's ability to protect existing and future easement and permit
conditions. (Id. at p. 1380.) Accordingly, the matter was not an extraordinary case in
which justice demanded the government be estopped. (Ibid.)
The Kretowiczes make much of the fact that in most of the cases binding a
successor to a predecessor's agreed-upon permit conditions, including Feduniak, the
10 We likewise reject amicus Pacific Legal Foundation's arguments raising the Nollan/Dolan requirements on grounds Baker, and in turn the Kretowiczes, are barred from challenging Commission's September 20, 1979 decision to impose the public access conditions. Pacific Legal Foundation argues that it does not concede, as it did in Feduniak, supra, 148 Cal.App.4th 1346, that it was too late to collaterally attack the permit conditions. Whether it concedes the point is irrelevant. We have already held that Baker's failure to challenge Commission's decision bars her from any attack on constitutional takings grounds, and that holding disposes of amicus's contention. 35
permit conditions or dedication were recorded. But those cases do not turn on the fact
that public easement requirements were recorded, and indeed in Feduniak, the purchasers
lacked any notice of the conditions, which were not reflected in the title report. The
Feduniak plaintiffs' lack of notice and their "innocent purchaser" arguments did not
persuade the appellate court, which decided the matter based on the prior owner's failure
to challenge the condition. The Kretowiczes also seek to distinguish Feduniak on
grounds this case presents Commission's failure to enforce a known violation. The
record demonstrates Commission found Baker in violation and referred the matter to the
attorney general for enforcement. However, Commission's knowledge of the violation
does not by itself compel application of an estoppel against against it where the public
interests at stake outweigh the Kretowiczes' private interests.
In view of the authorities discussed above, we conclude this case does not come
close to the exceptional circumstances necessary to apply an estoppel against
Commission. Any injustice to the Kretowiczes in requiring them to dedicate the required
public access easements presents no ground to override the significant public interests at
stake. Relevant here, the Coastal Act reflects " ' "a strong rule of policy, adopted for the
benefit of the public" ' that implicate[s] matters of vital interest." (Feduniak, supra, 148
Cal.App.4th at pp. 1376-1377, quoting Mansell, 3 Cal.3d at p. 493.) The California
Supreme Court has acknowledged that this state has "a clearly enunciated public
policy . . . in favor of allowing public access to shoreline areas." (County of Los Angeles
v. Berk, supra, 26 Cal.3d at p. 222.) And this court has observed that a "core principle[]
36
of the Coastal Act is to maximize public access to the coast, to the extent feasible." (City
of Dana Point v. California Coastal Com. (2013) 217 Cal.App.4th 170, 185.) One of the
basic goals for the coastal zone is to " ' "[m]aximize public access to and along the coast
and maximize public recreational opportunities in the coastal zone consistent with sound
resources conservation principles and constitutionally protected rights of private property
owners." ' " (Ibid., see § 30001.5, subd. (c).) To that end, the Coastal Act implements its
public access goals via section 30210, which states in part: "In carrying out the
requirement of Section 4 of Article X of the California Constitution, maximum access,
which shall be conspicuously posted, and recreational opportunities shall be provided for
all the people consistent with public safety needs and the need to protect public rights,
rights of private property owners, and natural resource areas from overuse." Section
30212 provides that subject to certain exceptions, "Public access from the nearest public
roadway to the shoreline and along the coast shall be provided in new development
projects." (§ 30212, subd. (a); see also City of Dana Point, at p. 185.)
Thus, "[t]o allow the raising of an estoppel to defeat the claim of public right here
involved would be manifestly contrary to this policy." (County of Los Angeles v. Berk,
supra, 26 Cal.3d at p. 222.) These principles likewise compel us to reject the
Kretowiczes' laches claim, as well as its claim that Commission waived its right to
enforce the 1979 dedication requirement as against later purchasers. (Ibid.; West
Washington Properties, LLC v. Department of Transportation, supra, 210 Cal.App.4th at
p. 1150; City of Santa Cruz v. Pac. Gas & Elec. Co. (2000) 82 Cal.App.4th 1167, 1179.)
37
Commission sought to enforce Baker's violation, but the attorney general did not pursue
the matter. We do not perceive Commission's ensuing inaction as knowingly assenting to
the violation or indicating an actual intention to give up its rights. (E.g., Feduniak, supra,
148 Cal.App.4th at p. 1367 [declining to find Commission's inaction signaled regulatory
acceptance, stating it "could just as well reflect . . . bureaucratic, budgetary, or personnel
limitations on enforcement of easements and permit restrictions"].)
E. Code of Civil Procedure Section 315 Statute of Limitations
Code of Civil Procedure section 315 provides that "[t]he people of this State will
not sue any person for or in respect to any real property, or the issues or profits thereof,
by reason of the right or title of the people to the same, unless: [¶] 1. Such right or title
shall have accrued within ten years before any action or other proceeding for the same is
commenced . . . ." " 'The words "right or title" in this passage are to be construed to
mean "cause of action." ' " (Marin Healthcare Dist. v. Sutter Health (2002) 103
Cal.App.4th 861, 874.) If an action brought by a state agency is deemed to seek the
recovery of real property "by reason of the right or title of the people to the same," it
would be subject to the 10-year limitations period specified in Code of Civil Procedure
section 315. (Ibid.)
Pointing out that Commission is an administrative agency of the state, the
Kretowiczes argue that Commission is barred from enforcing the 1979 permit conditions
under the above limitations period since it did not act before September 20, 1989. In
making this argument, the Kretowiczes characterize Commission's position as claiming
38
the public has a "perpetual right to receive an option" to acquire the property. As
Commission points out, however, it did not sue the Kretowiczes, it is defending its permit
decision in this mandate proceeding. Having found the 1979 public access conditions
accepted by Baker and valid as against the Kretowiczes, Commission is entitled to
enforce them notwithstanding the passage of time. (See Feduniak, supra, 148
Cal.App.4th 1346.)
F. Bona Fide Purchaser Arguments
Amicus Pacific Legal Foundation contends that the Kretowiczes are bona fide
purchasers for value as they had no actual or constructive notice of the 1979 public
access conditions, and thus Commission cannot enforce the conditions against them.
They maintain it is undisputed that the Kretowiczes had a good-faith belief the property
was unencumbered, and that the record shows the Kretowiczes lacked actual or
constructive notice of the conditions. For the latter proposition, amicus cites to Ure
Kretowicz's own self-serving statement to Commission, and a letter from the
Kretowiczes' counsel. Relying on Feduniak, supra, 148 Cal.App.4th at page 1353, as
well as a magazine article, they argue public easements dedicated at Commission's behest
must be recorded, and that the strong public policies furthered by recording statutes
outweigh the public benefit from additional public beach access.
Amicus's bona fide purchaser arguments are irrelevant in view of our conclusion
that the Kretowiczes are bound by the 1979 public access conditions due to Baker's
39
failure to timely challenge Commission's decision to impose them. (Accord, Feduniak,
supra, 148 Cal.App.4th at pp. 1378-1379.)11
11 We observe in any event that Commission expressly found that Ure Kretowicz would have learned of the permit requirements contained in Commission files on reasonable inquiry, and this finding, which amounts to one of constructive notice, is supported by the evidence. Civil Code section 19 provides: "Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact." The term "prudent" is defined as "marked by wisdom or judiciousness"; "shrewd in the management of practical affairs"; and "marked by circumspection." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 1002.) At the time the Kretowiczes purchased the property in 1994, the La Jolla LCP discussed shoreline access at Princess Street and alluded to Commission's dedication requirement at issue. Ure Kretowicz read the La Jolla LCP when he purchased the property, and the information was sufficient to create a duty on Kretowicz, an experienced and prudent developer purchasing the bluff-top coastal property on Princess Street, to inquire with Commission about additional facts concerning that dedication. "If the circumstances are such as to put a prudent person on inquiry, that is all that is required." (Pellissier v. Title Guarantee, etc. Co. (1929) 208 Cal. 172, 184-185.) 40
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
41
AI Brief
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Holding. The court held that the California Coastal Commission's findings regarding historic public access were supported by substantial evidence and that the appellants' predecessor's failure to timely appeal the permit condition requiring an irrevocable offer to dedicate public access easements barred the appellants' subsequent challenges, including claims of an unconstitutional taking.
Issues
Whether the trial court erred in entering judgment on declaratory relief and quiet title causes of action without a separate trial.
Whether the California Coastal Commission's findings were supported by substantial evidence and within its jurisdiction.
Whether the appellants' challenges to the 1979 public access permit condition were barred by the failure of their predecessor in interest to timely appeal the condition.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court did not err in dismissing their quiet title cause of action.”
“It is settled that an action for declaratory relief is not appropriate to review an administrative decision”