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.