A property owner cannot participate in a California Coastal Commission appeal process for years and then assert that the Commission was prohibited from considering the appeal because it missed a procedural deadline years earlier, the Second District Court of Appeal has ruled.

The court rejected a Pacific Palisades landowner's contention that the Commission had lost jurisdiction over an appeal of the landowner's three-lot development because the Commission did not conduct a hearing within 49 days of receiving an appeal in 1999.

Landowner Mt. Holyoke Homes (MHH) "did not question the Commission's jurisdiction until June 7, 2003 – three and a half years after the latest date on which it contends the Commission lost jurisdiction. During that time, MHH readily provided information to the Commission in response to several requests; its actions over such an extended period of time constituted consent (acquiescence) to jurisdiction or, alternatively, invited error," Presiding Justice Dennis Perluss wrote for the Second District, Division Seven.

As with many coastal development projects, the one at issue here has a legacy. Nearly 20 years ago, Darla and Stanley Jones formed Mt. Holyoke Homes for the purpose of developing their property in Los Angeles's Pacific Palisades. (Mr. Jones has since died.) They filed an application with the city for a four-lot subdivision, which the City Council ultimately rejected on appeal of a neighborhood group. After MHH sued, a Los Angeles County Superior Court judge in December 1993 ordered the city to reconsider.

Negotiations ensued amongst the Joneses, their neighbor Barbara Schelbert and the city. MHH agreed to reduce the project to three lots, increase building setbacks and provide view corridors between the planned houses. But city officials raised new concerns about geology and soils that required extensive study. Finally, in April 1999, the city approved the revised, three-lot project.

Schelbert appealed the decision to the Coastal Commission in June 1999. The following month, the Commission opened but continued a public hearing on the appeal because the city had provided no documents related to the project. The landowners then arranged to have a copy service copy and transmit more than 2,000 pages of city records to the Commission. Staff members for the Commission found the record incomplete, however, so MHH arranged to have the entire city file delivered to the Commission. On April 3, 2000, MHH delivered a stipulation signed by the Joneses, a city representative and Schelbert stating the Commission had been given all documentation. Five weeks later, the Commission determined the appeal raised substantial issues regarding geologic hazards and landform alternation and said it would conduct a de novo hearing at a later date.

From August 2000 until April 2003,  MHH and the Commission's staff went back and forth, including one 17-month period when MHH did not respond to a staff request for seismic information. Eventually, the staff recommended project approval, but at a June 2003 hearing, the Commission denied the proposal. MHH then requested the Commission reconsider, in part because the Commission did not act on the appeal within 49 days as required by the Coastal Act. MHH argued the Commission should have determined whether the appeal presented a substantial issue by either August 2, 1999, or January 25, 2000, the later date being 49 days after MHH's copy service delivered records to the Commission. After filing the request for reconsideration, MHH then asked the Commission to continue the matter "for an indefinite period of time in order to facilitate discussion and consideration of alternatives."

In the meantime, MHH sued the Commission and Schelbert for inverse condemnation and to overturn the Commission's decision. In 2004, the Commission and the landowners signed a tentative settlement in which the Commission agreed to conduct a new hearing on an alternative site plan with a larger view corridor. But when Schelbert protested that she had not been a party to negotiations, the settlement fell apart. After further proceedings, Los Angeles County Superior Court Judge Dzintra Janavs ordered the Commission to conduct a new hearing but also dismissed MHH's suit. In an unpublished 2005 opinion, the Second District Court of Appeal overturned Janavs and ordered the suit reinstated. The case went back to Superior Court, where Janavs in November 2006 ordered the Commission to set asides its disapproval and dismiss Schelbert's appeal because the Commission had missed the 49-day deadline.

This time, the Commission and Schelbert appealed. Much of the argument on appeal centered on the relevance of Encinitas Country Day School, Inc., v. California Coastal Commission, (2003) 108 Cal.App.4th 575 (see CP&DR Legal Digest, July 2003). In that case, the court ruled the Commission had lost jurisdiction in an appeal of an approved private school project because the Commission did not decide within 49 days whether the appeal presented substantial issues warranting a new hearing. In the case at hand, however, the Second District said Encinitas "did not change the law" and was not needed for a decision anyway.

The Second District said the question here concerned "estoppel to contest jurisdiction" – in other words, whether MHH should be prohibited from challenging the Commission's jurisdiction over the project. MHH argued it should not be barred from challenging the Commission's jurisdiction because MHH's participation in the Commission's process did not hide the facts or cause the errors. But the Second District said MHH "had an obligation to contest the Commission's jurisdiction promptly after the date on which it contends the Commission lost it." Justice Perluss even suggested MHH was wasting everyone's time with its allegations.

"If MHH were not now estopped to contest the Commission's jurisdiction and the city's approval of its project were to be deemed final without a de novo hearing on the substantial issues raised by Schelbert's appeal, significant resources will have been expended over a period of several years for naught," Perluss wrote. "Such conduct amounts to an unacceptable trifling with a public agency and the courts."

The Second District decision appears to clear the way for new Commission hearing on the MHH proposal. In December, MHH asked the state Supreme Court to overturn the appellate court.

The Case:
Mt. Holyoke Homes, LP v. California Coastal Commission, No B201517, 08 C.D.O.S. 13328, 2008 DJDAR 15935. Filed October 21, 2008. Modified and rehearing denied November 12, 2008, at 2008 DJDAR 16823.

The Lawyers:
For Mt. Holyoke Homes: John Bowman, Jeffer, Mangels, Butler & Marmaro, (310) 203-8080.
For the Commission: John Saurenman, (213) 897-2000.
For Barbara Schelbert: John Murdock, (310) 450-1859.