The Commission relies principally upon Bickel v. City of Piedmont, a 1997 California Supreme Court decision, to support its argument that a permit applicant can waive the time period in which an agency must act on an application, based upon conduct after the decision period has run. Not suprisingly, the Bickel case does not support the Commission. Bickel states, in relevant part:
As the concurring and dissenting justice of the Court of Appeal panel in this case observed, the commission's statements indicated that "the commission was saying it was prepared to deny the application outright but was offering to accommodate [plaintiffs] once more if that was their preference." Thus, when in response to the commission's inquiry whether plaintiffs would want another extension within which to submit revised plans, plaintiff Bickel said he did indeed want a continuance of the hearing, he voluntarily relinquished his right under the Act to have the commission render a decision on the merits at the November 9 hearing. But Bickel's statement was not a relinquishment of the right to have the commission approve or disapprove the application within the statutory time limit. The determination that the continuance should be for three months, after the time limits of the Act had expired, was made by the chairman of the Planning Commission, without any comment by plaintiffs. Thus, the facts of the November 9, 1992, hearing, standing alone, do not establish that plaintiffs waived the Act's time limitations. Also pertinent, however, are the events that occurred after the November 9 hearing. Plaintiffs, who concede that they are charged with knowledge of the Act's time limits, did not submit their revised plans to the Planning Commission for approval until after expiration of the time in which the commission had to indicate either approval or disapproval. When considered together, plaintiffs' conduct at and after the November 9, 1992, hearing provides substantial evidence to support the trial court's finding that plaintiffs waived their right under the Act to have the Planning Commission approve or disapprove their permit application within the statutory period.
(emphasis added). The italicized material indicates that what mattered to the Supreme Court was that the Bickel applicant wanted to improve his application by submitting additional plans; and in exchange for the ability to submit untimely application amendments, he had to give up his right to a timely permit decision. The crucial distinction, then, between Bickel and Mt. Holyoke is that, in the latter case, the permit applicants had won approval of their permit from the City, and thus only needed an automatic affirmance from the Coastal Commission. That affirmance would issue if the Commission could not act on the appeal within 49 days. The Mt. Holyoke applicants were perfectly happy to rest on their laurels; they needed nothing from the Commission. In contrast, the Bickel applicant’s only hope for a permit approval was (in an ironic twist of fate) a waiver.
In short, in circumstances where a coastal development permit applicant is fighting off an appeal to the permit, the Coastal Commission cannot establish waiver of the right to a timely decision on the appeal by conduct occuring after the appeal period has run.