Thursday, November 13, 2014

Building Permit Does Not Include a Dose of Collateral Estoppel

Bowman v. Cal. Coastal Commission, No. B243015 (D2d6 Oct, 23, 2014)

A county imposed a beach access condition on granting a building permit, which the property owner did not challenge through administrative mandamus.  The owner never actually performed the permitted construction. The property owner later applied for a second permit to replace a structure on the property. The application also requested removal of the access condition. The county approved the request.

But the Sierra Club and the Surfrider Foundation appealed the removal of the condition to the Coastal Commission, which decided that the issue had been settled by the non-appeal of the first permit’s imposition of the condition. The court here holds that although collateral estoppel can arise from a quasi-judicial administrative decision, it would be inequitable to apply the doctrine here. The access easement would not stand up to the Nolan/Dolan takings test. And particularly given that the owner didn’t actually do the work under the first permit, it would be unfair to apply collateral estoppel to the present circumstances.


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