October 21, 2008

Mt. Holyoke Homes v. CCC: Why It Makes No Sense to Work with the Commission

By Mt. Holyoke Homes v. CCC: Why It Makes No Sense to Work with the Commission
Today, the California Court of Appeal issued a terrible published decision that is sure to have a negative impact on the willingness of coastal landowners to work with the Coastal Commission on their permits.
Mt. Holyoke was a Coastal Commission case concerning the 49-day substantial issue finding requirement.  The Court of Appeal had ruled previously that, if the Commission doesn't make a finding, within 49 days of an appeal's filing, that the appeal presents a substantial issue of whether the Coastal Act has been complied with, then the decision at the local level stands.  Here, the developer had a good argument that the 49-day period ran before the Commission made the appropriate finding.  But, the developer continued to cooperate with the Commission post-49-day period (after a disgruntled neighbor appealed the permit).  When the Commission ultimately overturned the permit, the developer sued and advanced the 49-day defense.  The Court of Appeal today ruled that, whether or not the developer had a good 49-day defense initially, he is estopped from asserting it now because he cooperated with the Commission for two and a half years after the 49-day period expired.  PLF filed an AC brief in support of the developer, arguing that (1) the developer had a good 49-day defense, and (2) the developer could raise it, because he had not knowingly relinquished it.

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