Littoral Development Co. v. San Francisco Bay Conservation & Development Commission

This is the third appeal in which we have dealt with legal issues arising from the anomalous status of a bayfront parcel owned by appellants Littoral Development Co. and Diversified Realty Services (hereafter jointly referred to as Littoral). Here, Littoral contends: (1) The bayward one-third of its parcel was not subject to the jurisdiction of the San Francisco Bay Conservation and Development Commission (BCDC), under the definition of Government Code section 66610, as “marshland” lying lower than five feet in elevation; (2) BCDC’s enforcement actions constituted a regulatory taking; and (3) Littoral should be awarded attorney fees as a result of BCDC’s conduct.

We must reject these contentions. First, as to the question of whether the bayward one-third of the parcel is “marshland” subject to BCDC jurisdiction, we previously answered the question in the affirmative in Littoral Development Co. v. San Francisco Bay Conservation etc. Com. (1994) 24 Cal.App.4th 1050, 1064-1065 [ 29 Cal.Rptr.2d 518 ] (Littoral I). Even if relitigation of this question was not barred by res judicata or collateral estoppel, we would reach the same conclusion. The relevant evidence, including…