Filed 7/6/17




       IN THE SUPREME COURT OF CALIFORNIA


BARBARA LYNCH et al.,                  )
                                       )
           Plaintiffs and Respondents, )
                                       )                          S221980
           v.                          )
                                       )                    Ct.App. 4/1 D064120
CALIFORNIA COASTAL                     )
COMMISSION,                            )               San Diego County Super. Ct.
                                       )                  No. 37-2011-00058666-
           Defendant and Appellant.    )                       CU-WM-NC
____________________________________)


        After winter storms damaged the seawall protecting their blufftop
properties, homeowners sought a permit from the California Coastal Commission
(Commission) to build a new seawall and repair their beach access stairway. The
Commission granted the permit subject to several mitigation conditions. The
owners filed an administrative mandate petition objecting to two conditions but
then proceeded with construction. We hold that the owners forfeited their
challenge because they accepted the benefits the permit conferred.
                                I. BACKGROUND
        Plaintiffs Barbara Lynch and Thomas Frick own adjacent oceanfront
properties in Encinitas. Their homes sit on a coastal bluff that cascades steeply
down to the beach and Pacific Ocean. The Encinitas shoreline is especially
susceptible to landslides. Since 1986, the properties have been protected by a
shared seawall at the base of the bluff and a midbluff erosion control structure.
The original seawall contained 20-foot wooden poles embedded in the sandy



                                          1
beach and cabled to the bluff. In the midbluff structure, railroad ties and
supporting wooden poles were tied into the bluff with steel cables. A shared
stairway provided the only access from the blufftop to the beach below. In 1989,
the Commission retroactively approved a coastal development permit for the
seawall, midbluff structure, and stairway. Plaintiffs later added concrete footings
at the base of the poles.
       When the wooden poles showed significant decay, plaintiffs applied to the
City of Encinitas (City) for authorization to replace the wooden seawall and
midbluff structure with an integrated concrete wall. They also sought to rebuild
the lower portion of the stairway, which would be attached to the new wall. The
City approved the project in 2009, finding it consistent with the general plan and
municipal code. Final approval required a coastal development permit from the
Commission. While plaintiffs‟ application for this permit was pending, unusually
heavy winter storms caused the bluff below Lynch‟s home to collapse, destroying
part of the seawall, most of the midbluff structure, and the lower portion of the
stairway.
       Plaintiffs sought a new permit to demolish the old structure, construct a
new tied-back seawall across both properties, and rebuild the lower stairway.
Commission staff recommended approving the proposed seawall, even though the
existing support under Frick‟s property was adequate, because the new wall would
provide greater stability and visual appeal. The proposed seawall would be
located eight feet inland from its current location, providing additional beach area
for recreation. But staff recommended disapproving the stairway, finding it
inconsistent with local coastal plan requirements discouraging private access
stairways on the bluff.




                                          2
       Ultimately, the Commission approved a coastal development permit1
allowing seawall demolition and reconstruction, with the addition of midbluff
geogrid protection below Lynch‟s home. The permit was subject to several
conditions, three of which are at issue here. Special condition No. 1(a) prohibits
reconstruction of the lower stairway. Special condition No. 2 provides that the
seawall permit will expire in 20 years and prohibits future blufftop redevelopment
from relying on the seawall as a source of geologic stability or protection. Special
condition No. 3 requires that, before expiration of the 20-year period, plaintiffs
must apply for a new permit to remove the seawall, change its size or
configuration, or extend the authorization period.
       Before the permit could issue, plaintiffs had to record deed restrictions
stating that special conditions of the permit were covenants, conditions and
restrictions on the use and enjoyment of their properties. They did so. Around the
same time, plaintiffs filed a petition for writ of administrative mandate challenging
the 20-year expiration conditions and the condition prohibiting reconstruction of
the lower stairway. (Code Civ. Proc., § 1094.5.) While this litigation proceeded,
plaintiffs satisfied all other permit conditions, obtained the permit, and built the
seawall.
       About a year later, the Commission moved for judgment on the mandate
petition, arguing plaintiffs had waived their objections by accepting the permit
conditions and constructing the project. The trial court denied the motion.
Plaintiffs then moved for judgment, arguing the permit‟s 20-year expiration date
was unconstitutional and beyond the Commission‟s authority because it did not
mitigate impacts of this particular project. In addition, plaintiffs maintained the
Commission could not prohibit reconstruction of the lower stairway because that
activity did not require a permit. The trial court agreed with plaintiffs and issued a

1      We refer to this authorization as a permit, but technically it was an
amendment to the coastal development permit the Commission issued for the
original seawall in 1989.


                                           3
writ directing the Commission to remove the challenged conditions. The Court of
Appeal reversed in a split decision. The majority determined that plaintiffs had
waived their claims and, in any event, both conditions were valid. The dissenting
justice disagreed with all of these conclusions.
       We granted review. Because we determine plaintiffs‟ claims have been
forfeited, we do not decide the legality of the challenged conditions.
                                  II. DISCUSSION
       As we have explained in various contexts, “ „waiver‟ means the intentional
relinquishment or abandonment of a known right.” (Bickel v. City of Piedmont
(1997) 16 Cal.4th 1040, 1048; see Waller v. Truck Ins. Exchange, Inc. (1995) 11
Cal.4th 1, 31.) Waiver requires an existing right, the waiving party‟s knowledge
of that right, and the party‟s “actual intention to relinquish the right.” (Bickel, at
p. 1053.) “ „Waiver always rests upon intent.‟ ” (City of Ukiah v. Fones (1966)
64 Cal.2d 104, 107.) The intention may be express, based on the waiving party‟s
words, or implied, based on conduct that is “ „so inconsistent with an intent to
enforce the right as to induce a reasonable belief that such right has been
relinquished.‟ ” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588,
598; see Waller, at pp. 31, 33-34.)
       Waiver differs from estoppel, which generally requires a showing that a
party‟s words or acts have induced detrimental reliance by the opposing party.
(See, e.g., Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346,
1359.) It also differs from the related concept of forfeiture, which results when a
party fails to preserve a claim by raising a timely objection. (See In re S.B. (2004)
32 Cal.4th 1287, 1293, fn. 2.) Although the distinctions between waiver, estoppel,
and forfeiture can be significant, the terms are not always used with care. “As we
have observed previously, forfeiture results from the failure to invoke a right,
while waiver denotes an express relinquishment of a known right; the two are not
the same.” (People v. Romero (2008) 44 Cal.4th 386, 411.) The parties and courts



                                           4
below have analyzed the issue here in terms of waiver. However, the more
accurate term to describe the effect of plaintiffs‟ actions is equitable forfeiture.
       Whether a waiver or forfeiture has occurred is often a factual question,
typically reviewed for substantial evidence. (Bickel v. City of Piedmont, supra, 16
Cal.4th at pp. 1052-1053.) “ „When, however, the facts are undisputed and only
one inference may reasonably be drawn, the issue is one of law and the reviewing
court is not bound by the trial court‟s ruling.‟ ” (St. Agnes Medical Center v.
PacifiCare of California (2003) 31 Cal.4th 1187, 1196.) Moreover, the
determination whether a party‟s actions constitute forfeiture is essentially legal in
nature, and thus subject to independent review. (Cf. Evans v. City of San Jose
(2005) 128 Cal.App.4th 1123, 1136 [legal issues concerning administrative
exhaustion are reviewed de novo].)
       The relevant facts are not in dispute. During the review process, plaintiffs
submitted written objections to the conditions they now challenge. After the
Commission voted to approve a coastal development permit subject to the
challenged conditions, plaintiffs timely filed for a writ of mandate. While the
mandate action was pending, however, they satisfied all other conditions, obtained
the permit, and built the seawall. The trial court concluded plaintiffs‟ actions did
not bar their petition. It explained that, “by proceeding with the repairs,” plaintiffs
“have not necessarily accepted the conditions in question. No action has been
taken as to the twenty year condition[,] which can be removed after review of the
instant petition.” In addition, plaintiffs had “not undertaken any action as to the
staircase.” Contrary to the trial court, we conclude plaintiffs forfeited their right to
challenge the permit‟s conditions by complying with all pre-issuance
requirements, accepting the permit, and building the seawall.
       In the land use context, a landowner may not challenge a permit condition
if he has acquiesced to it either by specific agreement, or by failure to challenge
the condition while accepting the benefits afforded by the permit. (County of
Imperial v. McDougal (1977) 19 Cal.3d 505, 511 (County of Imperial); Rossco


                                           5
Holdings Inc. v. State of California (1989) 212 Cal.App.3d 642, 654.) Generally,
challenges to allegedly unlawful conditions must be litigated in administrative
mandate proceedings. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 19; see
Code Civ. Proc., § 1094.5.)
       In County of Imperial, supra, 19 Cal.3d at page 507, a conditional use
permit allowed the commercial sale of water from a residential well but required
that sales be kept within the county. The original property owner limited his sales
accordingly but sold the property two years later. The new owner refused to
comply with the restriction. (Id. at pp. 507-509.) We explained that, while the
benefits of a permit run with the land, so too do its restrictions. (Id. at p. 510.)
The original landowner waived any objection by voluntarily withdrawing his
application to export water and accepting the permit‟s benefits. (Id. at pp. 510-
511.) His successor in title was bound by this waiver. (Ibid.)
       Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74 (Pfeiffer) reached a
similar result. There, the city issued a building permit but required the property
owners to grant an easement and construct a storm drain. The owners objected to
the conditions but said they would comply “ „under protest and without waiving
their rights to demand compensation.‟ ” (Id. at p. 76) After completing the
project, they sued the city for inverse condemnation, seeking compensation for the
easement and the cost of constructing the storm drain. (Ibid.) The court held they
could not state a cause of action for inverse condemnation because “a landowner
who accepts a building permit and complies with its conditions waives the right to
assert the invalidity of the conditions and sue the issuing public entity for the costs
of complying with them.” (Id. at p. 78.)2 The property owners should have

2      Although the court used waiver terminology, the facts are more consistent
with forfeiture. The Pfeiffers objected to the permit‟s conditions and complained
throughout that they were complying “ „under protest.‟ ” (Pfeiffer, supra, 69
Cal.App.3d at p. 76.) Arguably, their conduct was not an “intentional
relinquishment or abandonment of a known right.” (Bickel v. City of Piedmont,
supra, 16 Cal.4th at p. 1048.)


                                           6
challenged the conditions by a petition for writ of mandate, rather than complying
and later suing for damages. (Ibid.) The court explained that Code of Civil
Procedure section 1094.5 creates the right and furnishes the procedures to
eliminate invalid permit conditions. Property owners cannot “convert that right”
into an inverse condemnation claim by declining to pursue their proper remedy in
mandate proceedings. (Pfeiffer, at p. 78; see Hensler v. City of Glendale, supra, 8
Cal.4th at p. 19; Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172
Cal.App.3d 914, 941.)
       Plaintiffs seek to distinguish these authorities. They point out that, unlike
the original landowner in County of Imperial, they did challenge the imposed
condition. And unlike the plaintiffs in Pfeiffer, they did not comply with the
conditions and later sue for damages. Instead, they sought to invalidate the
conditions in an administrative mandate proceeding. Plaintiffs may be correct
that, on these facts, they cannot be fairly said to have waived their objection, in the
sense of having intentionally relinquished it. (See Bickel v. City of Piedmont,
supra, 16 Cal.4th at p. 1048.) That conclusion, however, does not save their case.
The crucial point is that they went forward with construction before obtaining a
judicial determination on their objections. By accepting the benefits of the permit
and building the seawall, plaintiffs effectively forfeited the right to maintain their
otherwise timely objections.
       In general, permit holders are obliged to accept the burdens of a permit
along with its benefits. (See Sports Arenas Properties, Inc. v. City of San Diego
(1985) 40 Cal.3d 808, 815.) This rule stems from the equitable maxim, “He who
takes the benefit must bear the burden.” (Civ. Code, § 3521.) Plaintiffs obtained
all the benefits of their permit when they built the seawall. They cannot now be
heard to complain of its burdens.
       Plaintiffs‟ position is analogous to that of the landowners in Edmonds v.
County of Los Angeles (1953) 40 Cal.2d 642. The Edmonds family operated a
large trailer court in violation of zoning regulations and state law. (Id. at p. 644.)


                                           7
Local authorities agreed to grant an exception allowing additional trailers on the
property, subject to a requirement that the nonconforming use be abandoned
within three years. (Id. at pp. 645-646.) Edmonds protested this limitation when it
was first proposed but ultimately accepted all the benefits afforded by the
conditional exception. (Id. at pp. 646-650.) For three years the exception gave the
Edmonds family “definite advantages to which they were not otherwise entitled.”
(Id. at p. 650) Accordingly, they could not later challenge it. (Id. at pp. 650,
653.)3 Similarly, because plaintiffs here took advantage of their permit‟s benefits
by building a seawall, they must now accept the permit‟s conditions.
       Plaintiffs urge that because the objectionable permit conditions did not
affect the design or construction of the seawall, it was possible to challenge the
conditions while the project was being built. Noting the instability of the coastal
bluffs, plaintiffs argue they should not have had to await the outcome of litigation
before taking action to protect their homes. They essentially ask us to create a
new exception to the forfeiture rule, allowing landowners to accept the benefits of
a permit under protest if the challenged restrictions can be severed from the
project‟s construction. We decline to do so for a number of reasons.
       When the Legislature addressed this subject, it authorized a narrow
exception for challenges to permit conditions imposing a fee or similar exaction.
The Mitigation Fee Act (Gov. Code, § 66000 et seq.) establishes a procedure by
which developers may proceed with a project and still protest the imposition of
fees or a possessory interest in property. (See Sterling Park, L.P. v. City of Palo
Alto (2013) 57 Cal.4th 1193, 1206-1207 (Sterling Park).) In general, if a
developer has tendered payment of the disputed fee and given written notice of the


3      Our holding in Edmonds was phrased in terms of estoppel because the
zoning authorities had “relied to their detriment” on the plaintiffs‟ promise to end
their nonconforming use. (Edmonds v. County of Los Angeles, supra, 40 Cal.2d at
p. 653.) However, the principles expressed are equally applicable in the context of
equitable forfeiture.


                                          8
grounds for protest, local agencies cannot withhold project approval during
litigation of the dispute. (Gov. Code, § 66020, subds. (a)-(b).) If the challenge is
successful, the agency must refund the unlawful fees with interest. (Gov. Code,
§ 66020, subd. (e).)
        Before the Mitigation Fee Act, developers that wished to challenge the
legality of a fee had to delay construction until mandamus proceedings ended.
(See McLain Western #1 v. County of San Diego (1983) 146 Cal.App.3d 772, 776-
777; Pfeiffer, supra, 69 Cal.App.3d at p. 78.) The Mitigation Fee Act authorized a
simultaneous challenge, but only for “fees, dedications, reservations, or other
exactions.” (Gov. Code, § 66020, subd. (a).) While the term “other exactions”
encompasses “actions that divest the developer of money or a possessory interest
in property, . . . it does not include land use restrictions.” (Sterling Park, supra, 57
Cal.4th at p. 1204.) Plaintiffs essentially seek to extend the Mitigation Fee Act to
land use restrictions that can be separated from a project‟s construction. Their rule
would significantly expand the statute, contrary to its language and evident
legislative intent. (See Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, 543-
544.) If such an expansion is needed, the Legislature is the appropriate body to
create it.
        Creating an under protest exception would also potentially swallow the
general rule that landowners must take the burdens along with the benefits of a
permit. Permit applicants frequently accept conditions they dislike in order to
obtain a permit. “If every owner who disagrees with the conditions of a permit
could unilaterally decide to comply with them under protest, do the work, and file
an action in inverse condemnation on the theory of economic coercion, complete
chaos would result in the administration of this important aspect of municipal
affairs.” (Pfeiffer, supra, 69 Cal.App.3d at p. 78.) An exception allowing
applicants to challenge a permit‟s restrictions after taking all of its benefits would
change the dynamics of permit negotiations and would foster litigation.



                                           9
       Although plaintiffs argue their exception would be limited to conditions
that can be challenged without disrupting a project‟s construction, it could be
difficult to determine whether a particular condition is truly severable. For
example, here plaintiffs contend the 20-year expiration condition has no bearing
on the seawall‟s construction. If the condition is valid, the seawall‟s permit will
expire in 20 years; if it is not valid, the permit will continue beyond 20 years. The
example illustrates the problem. The Commission imposed the expiration
condition as a means of mitigating the seawall‟s adverse effects on the coastal
environment. If a court invalidated the condition before the wall‟s construction,
the Commission could have adjusted by directing that the seawall be located
farther inland, for example, to account for additional sand loss beyond 20 years.
Or, it might have required alterations in the wall‟s size or design. But if the
condition is invalidated after the seawall has been built, alternative mitigation
measures related to the design or placement of the wall, which might follow such a
ruling, would be rendered unrealistic or impossible. Plaintiffs complain that
whether the Commission would have required alternative mitigation measures
rests on speculation. As a matter of equity, however, plaintiffs bear the weight of
this uncertainty because their actions created it.
       Requiring that parties seek to invalidate permit conditions in administrative
mandate proceedings before proceeding with a project “serves the salutary purpose
of promptly alerting the [agency] that its decision is being questioned” and allows
the government to mitigate potential damages. (California Coastal Com. v.
Superior Court (1989) 210 Cal.App.3d 1488, 1496.) After a project has been
built, it may be too late for agencies to propose alternative mitigation measures.
They may be left with no practical means of addressing a project‟s significant
impacts. Land use planning decisions entail a delicate balancing of interests. An
under protest exception to the general waiver rule would upset this balance and
inject uncertainty into the planning process.



                                          10
       One might argue the Commission could have avoided this problem by
declining to issue the permit after plaintiffs filed their administrative mandate
action. Plaintiffs do not stress this point, presumably because they would prefer a
rule allowing projects to proceed under protest over one encouraging permits to be
withheld if they have challenged conditions. Denial of the permit may not have
been possible here. According to the Commission, once a landowner satisfies all
pre-issuance conditions, including recording deed restrictions that expressly
promise all permit conditions will be honored, issuance of the permit is a purely
ministerial act that Commission staff are powerless to interrupt. Even assuming
the Commission‟s authority could be broadened in this regard, however, we
believe the better rule puts the onus on landowners to resolve their challenges
before accepting the benefits of a permit. The landowner is in the best position to
know how strongly he objects to a particular condition, and to weigh the chance a
challenge will succeed against the costs of delaying the project.
       Plaintiffs protest that imposing a forfeiture under these circumstances could
put homeowners in a serious bind. The Commission approved the seawall because
Lynch‟s blufftop home was in danger of collapsing into the sea.4 Postponing
construction until mandate proceedings had concluded would have left plaintiffs‟
homes at significant risk. If proceeding with a project constitutes a forfeiture,
plaintiffs argue property owners under similar duress could be coerced to accept
unlawful permit conditions, simply because they cannot wait months or years for
litigation to conclude.




4      Although the bluff supporting Frick‟s home was more stable, the
Commission allowed the seawall to extend across his property because continuing
erosion would likely threaten it in the near future.


                                          11
       However, when safety is an issue, property owners can address imminent
dangers by obtaining an emergency permit. (Pub. Resources Code, § 30624.)5
Emergency permits generally authorize temporary improvements, needed for
immediate relief when loss or damage is threatened. (Barrie v. California Coastal
Com. (1987) 196 Cal.App.3d 8, 17.) In Barrie, for example, coastal homeowners
began constructing an unpermitted seawall in anticipation of heavy storms. (Id. at
p. 12.) The Commission authorized the work under an emergency permit, though
it required that the homeowners obtain a regular permit for a permanent seawall at
the location. (Id. at pp. 12-13.) Similarly, here, plaintiffs could have sought an
emergency permit for a temporary seawall to protect their properties during
litigation. Plaintiffs would have been aware of this option because they obtained
an emergency permit to clean up debris from storm damage to the previous
seawall.
       Temporary erosion protection under an emergency permit would have
preserved the status quo pending the outcome of litigation. Because
administrative mandate proceedings are often streamlined and subject to local fast
track requirements (see Smith-Chavez et al., 2 Cal. Civil Practice: Real Property
Litigation (1st ed. 2005) Land Use and Zoning Litigation, § 14:42, p. 14-52 et
seq.), delay of a project‟s construction may be minimized.6 Moreover, although it
was likely impossible here, in some cases the parties may be able to reach an
agreement allowing construction to proceed while a challenge to permit conditions
is resolved in court. A clear agreement of this sort could prevent a finding of
equitable forfeiture.

5     In truly dire circumstances, immediate repairs can be made without an
emergency permit. (See Pub. Resources Code, § 30611; Cal. Code Regs., tit. 14,
§ 13144.)
6      Although some amici curiae protest that an agency‟s notice of intent to
issue a permit could expire before mandate litigation has concluded, courts can
presumably address such problems by issuing appropriate stay orders. (See Code
Civ. Proc., § 1094.5, subd. (g).)


                                         12
       In conclusion, although plaintiffs filed an administrative mandate petition,
they forfeited their objections by constructing the project.7 Without an express
agreement with the agency providing otherwise, landowners who object to permit
conditions not covered by the Mitigation Fee Act must litigate their objections in
an administrative mandate proceeding before constructing the permitted project.
Landowners who proceed with a project before the merits of their claims have
been decided risk a finding that their objections were forfeited.
                                III. DISPOSITION
       The judgment of the Court of Appeal is affirmed.




                                                         CORRIGAN, J.


WE CONCUR:


CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




7      The Commission also contends plaintiffs expressly agreed to accept the
challenged permit conditions when they recorded deed restrictions referencing the
permit. Because we conclude plaintiffs forfeited their claims by constructing the
seawall project, we need not address this alternative argument.


                                         13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Lynch v. California Coastal Commission
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 229 Cal.App.4th 658
Rehearing Granted

__________________________________________________________________________________

Opinion No. S221980
Date Filed: July 6, 2017
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Earl H. Maas III

__________________________________________________________________________________

Counsel:

Kamala D. Harris and Xavier Becerra, Attorneys General, Mark J. Breckler, Chief Assistant Attorney
General, John A. Saurenman, Assistant Attorney General, Jamee Jordan Patterson and Hayley Peterson,
Deputy Attorneys General, for Defendant and Appellant.

Janis L. Herbstman for California State Association of Counties, League of California Cities and
International Municipal Lawyers Association as Amici Curiae on behalf of Defendant and Appellant.

Shute, Mihaly & Weinberger, Fran M. Layton and Catherine Malina for American Planning Association
and American Planning Association California Chapter as Amici Curiae on behalf of Defendant and
Appellant.

Ralph Faust; Environmental Law Clinic Mills Legal Clinic at Stanford Law School, Deborah A. Sivas,
Alicia E. Thesing and Matthew J. Sanders for Surfrider Foundation as Amicus Curiae on behalf of
Defendant and Appellant.

Axelson & Corn, Jonathan C. Corn; Pacific Legal Foundation, James S. Burling, John M. Groen, Paul J.
Beard II and Jennifer F. Thompson for Plaintiffs and Respondents.

Briscoe Ivester & Bazel and Peter Prows for Beach and Bluff Conservancy, Protect the Beach.org, Seacoast
Preservation Association and Coastal Property Owners Association of Santa Cruz County as Amici Curiae
on behalf of Plaintiffs and Respondents.

Alston & Bird and Paul J. Beard II for California Association of Realtors and National Association of
Realtors as Amici Curiae on behalf of Plaintiffs and Respondents.

Rutan & Tucker and David P. Lanferman for California Building Industry Association, California
Cattlemen‟s Association and California Farm Bureau Federation as Amici Curiae on behalf of Plaintiffs
and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Hayley Peterson
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2540

John M. Groen
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814
(916) 419-7111
