Easements Hidden in Permits
The California Court of Appeal decision in
California Coastal Commission, 2d Civil No.
B243015 (Cal. App., 2nd App. Dist., Div. 6, October 23, 2014) has been getting its fair share of attention for
its takings analysis (Nollan/Dolan)
as well as its procedural jurisprudence (collateral estoppel). It should also
bend the antennae of land title lawyers and title insurers.
The underlying facts in Bowman concerned a shoreline access easement condition in
a coastal development permit granted by the California Coastal Commission. The
CCC had determined (and continued to argue in the Court of Appeal) that “a
party who fails to challenge the validity of a permit condition and accepts the
benefit of the permit has acquiesced in the permit and is bound by its
conditions.” The Court agreed this was the law, but held it did not control in
this instance. Since the proposed improvements weren’t commenced pursuant to
the CCC permit and the permit lapsed, the owner hadn’t acquiesced in the
Of course, this result begs the questions:
had work been commenced under the permit, would the easement condition have
been deemed accepted? Would a public access easement have been imposed upon a
one-mile-long stretch of otherwise private shoreline without notice in the public
The defense and indemnity risks
associated with such individualized regulatory “easements” are considerable.
Nor is this a one-time occurrence. The creation of “easements” by
administrative action is not limited to California or to easements in favor of
the public. A year ago, the Alaska Supreme Court invalidated access permits to
a state recreation area that allowed the only reasonable overland access to
certain remote private properties. That Court determined the permits created
“easements” which were invalid disposals of public parkland. SOP, Inc. v. State Dept. of Natural Resources, 310 P.3d 962 (Sup. Ct. Alaska, 2013).