Real Estate & Property Law

Cal. Court of Appeals: No Record And No Findings By Coastal Commission = No Consideration

By Robert Thomas (inversecondemnation.com)

Section 30010 of California's Public Resource Code provides that the California Coastal Commission may grant a development permit that otherwise could not be granted in order to avoid a taking:

The Legislature hereby finds and declares that this division is not intended, and shall not be construed as authorizing the commission, port governing body, or local government acting pursuant to this division to exercise their power to grant or deny a permit in a manner which will take or damage private property for public use, without the payment of just compensation therefor. 

In a lengthy (51 page) opinion, the California District Court of Appeal (Sixth District) in McAllister v. California Coastal Comm'n, No. H031283 (Cal. Ct. App. Dec. 30, 2008) held that this statute requires the Coastal Commission to make specific findings that denying a coastal development permit would result in a taking. As summarized by the court:

The appeal raises myriad issues, one of which implicates two coastal development policies. One policy protects environmentally sensitive habitat areas?in this case, habitat for the Smith?s Blue Butterfly and coastal bluff scrub?by restricting development in those areas to uses that are dependent on habitat resources. Another policy protects property owners from the application of development policies in a way that deprives them of beneficial or productive use of their land and causes an unconstitutional taking without compensation. Under applicable regulations, where the strict application of a development policy would require the denial of a permit, but a denial would cause a taking, the permitting agency may relax the policy and grant a permit if it makes the required findings.

As we explain below, strict application of the policy restricting development in habitat areas to resource-dependent uses would have required the Commission to deny the permit. Nevertheless, the Commission granted it. The Commission now claims that it did so to avoid a taking. However, the Commission did not make the findings necessary to justify that action or even consider whether denying a permit would constitute a taking. Thus, in granting the permit, the Commission failed to proceed in the manner required by law and abused its discretion.

Slip op. at 1-2. No court held: no record and no findings by the Commission does not allow the reviewing court to reasonably infer that the Commission actually considered the "threshold question" of whether the proposed development was permissible. Slip op. at 30. The portion of the opinion which deals with regulatory takings begins on page 26.

Full post as published by inversecondemnation on December 30, 2008 (boomark / email).