United States: Bright Line Rule: Collateral Estoppel Precludes Attacks On Quasi-Judicial Permit Decisions (But Stay Tuned: Rehearing Granted On The Court’s Own Motion)

Last Updated: April 17 2014
Article by Deborah Rosenthal and James E. Pugh

Simply stated: "[a] collateral attack is not a substitute for an appeal" reasoned the Second Appellate District Court in Bowman v. California Coastal Commission (2nd Dist., Div. 6, 03/18/2014, B243015) ___Cal.App.2nd___, 2014). This is a case where the Coastal Commission and environmental groups found common ground challenging a coastal development permit issued by the County of San Luis Obispo. The case reiterates the importance of exhausting remedies during – not after – permit approval proceedings. However, the rationale for the decision—collateral estoppel—because of the issuance of a prior coastal development permit at the same location for a similar project was unusual. Perhaps too unusual, as the court on April 15, 2014 granted a rehearing on its own motion and indicated it contemplated further briefing.

The facts are straightforward. Walton Emmick owned approximately 400 acres in the County with nearly one mile of shoreline along noncontiguous parcels. In 2002, Emmick applied for a coastal development permit (CDP) from the County to rehabilitate a residence on the land, install a septic system, and connect to an existing water well. In 2003, Emmick died, and the SDS Family Trust succeeded to the property. SDS started construction without the CDP, in reliance on local building permits. In 2004, the County issued an after-the-fact CDP and conditioned it upon SDS's offer to dedicate a lateral easement for public access along the shorefront portion of the property. SDS did not appeal. Instead, nine months later, SDS applied for a second CDP requesting, among other things, that the County remove the lateral easement condition. The County approved the second CDP and removed the easement requirement. The Sierra Club, Surfrider Foundation, and two coastal commissioners appealed the County decision to the Coastal Commission, which upheld the validity of the easement from the first CDP. SDS sued and lost at the trial court level.

The appellate court quickly established the ground rules stating "[w]here an administrative tribunal has rendered a quasi-judicial decision that could be challenged by administrative mandamus . . . a party's failure to pursue that remedy will give rise to collateral estoppel." In other words, an applicant must exhaust all of its remedies during the administrative process or else it will be barred from later challenges. Here, SDS's fate was set when it failed to appeal the easement condition in the first CDP.

In defending the second CDP, SDS argued that (a) the first CDP had expired; (b) they had not accepted its conditions; and (c) they could "walk away" from the first CDP because they were dissatisfied with the conditions. SDS also argued that the access easement condition constituted an unlawful exaction of its property under Nollan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374, because the condition was not roughly proportional to the burden the project placed on the public interest. All of these arguments fell flat. Instead, the court held that a party is bound by the conditions of a permit that has been the subject of a quasi judicial proceeding, even if the decision is erroneous, when that party fails to challenge the permit and accepts its benefits—in this case partial completion of construction under the first CDP.

The message of the decision is clear: if you are dissatisfied with conditions imposed by an agency, then must appeal the matter before accepting the benefits of the permits. This is well established in California, even if the condition is arguably unconstitutional. SDS might have been in a stronger position to eliminate the lateral public access condition if it had not already commenced construction before receiving the first CDP, which it maintained while claiming they had walked away from the approval. The second CDP application was clearly another bite at the same apple, i.e., after-the-fact approval of existing construction, because SDS had failed to attack the lateral access condition in the first CDP under Nollan and Dolan.

California courts have held for more than 20 years that applicants cannot accept the benefits of a permit without challenging its burdens. It is therefore critical that applicants challenge unfavorable conditions when they are imposed. SDS followed a risky approach, that ultimately failed. Unfortunately, the Bowman court applied the court-based concept of "collateral estoppel" to the facts of the case, rather than established administrative law. This is likely to confuse situations where applicants legitimately "walk away" from an unacceptable permit and allow it to expire on its own terms without commencing construction. "Collateral estoppel" would prevent applicants, or even later purchasers, from applying for a new permit in response to changes in the law, even if applicable legal precedent or local regulations changed in the interim. While the result in Bowman was predictable under prior decisions, the court's reasoning was not.

On April 15, 2014, the court granted a rehearing on its own motion and contemplates further briefing. It will be interesting to see whether the court will decide that its extension of administrative law to incorporate concepts of "collateral estoppel" may have been both unnecessary and unwise. This post will be supplemented as necessary based on the further action by the court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Oct 2019, Other, Dallas, United States

Marketing Wants To Do What? Sweepstakes, Influencers, Loyalty, and Other Advertising and Promotional Fun

25 Oct 2019, Webinar, Los Angeles, United States

Matthew Bonovich will be a speaker at this webinar.

State and local governments continue to incentivize renewable energy and battery storage, causing an increase in mergers and acquisitions among producers and specialized renewables.

29 Oct 2019, Seminar, California, United States

Please join us for Sheppard Mullin's Labor & Employment Law Update & Happy Hour Seminar Series. There are many new developments in California labor and employment laws that will significantly affect the way you run your day-to-day business operations.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions