Marsh v. Cal. Coastal Com.

Filed 1/27/10 Marsh v. Cal. Coastal Com. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Steven R. Denton, Judge. Affirmed.

Dr. M. Lou Marsh appeals from a judgment denying her petition for a writ of administrative mandate seeking to overturn a decision by the California Coastal Commission (Commission). We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Dr. Marsh owns a four-acre parcel of property in the San Dieguito River Valley in unincorporated San Diego County (County). In September 2006, Dr. Marsh applied to the Commission for a coastal development permit to subdivide her property into two lots. The Commission denied the application, finding the subdivision was inconsistent with the California Coastal Act (Coastal Act) because the development of the second lot would substantially disrupt environmentally sensitive habitat areas, have significant adverse visual impacts, and conflict with deed restrictions previously imposed by the Commission.

Dr. Marsh petitioned for a writ of administrative mandate challenging the Commission's action. The trial court denied the petition, concluding substantial evidence supported the Commission's decision and rejecting Dr. Marsh's arguments that the Commission's denial was procedurally improper.

On appeal, Dr. Marsh does not challenge the Commission's findings that the subdivision is inconsistent with the Coastal Act. Instead, she contends the Commission improperly used the state, rather than a local, standard in reviewing Dr. Marsh's coastal development permit application. She also contends she is entitled to the development permit as a matter of law because the Commission failed to adhere to rules pertaining to time deadlines and vote recording. For the reasons explained below, we find these contentions to be without merit.

DISCUSSION

I. Overview of Statutory Scheme

The Legislature enacted the Coastal Act to protect the environment in the coastal zone. (Pub. Resources Code,  30001, 30103, subd. (a); see Yost v. Thomas (1984) 36 Cal.3d 561, 565-566.)[1] Under the Coastal Act, a party seeking to undertake development in the coastal zone must obtain a coastal development permit. ( 30600, subd. (a).) The Commission has the ultimate authority to ensure coastal permits are issued consistent with Coastal Act policies, but the Commission may delegate permitting responsibility to local governments through a local government's adoption of a certified local coastal program, known as an LCP. ( 30330, 30519; Charles A. Pratt Construction Co., Inc. v. California Coastal Com. (2008) 162 Cal.App.4th 1068, 1075 (Pratt).)

Specifically, the Coastal Act directs local governments to prepare an LCP governing the portion of the coast under its jurisdiction. ( 30500, subd. (a); Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1187 (Douda).) An LCP includes a local government's land use plans, zoning ordinances, zoning district maps, and other actions implementing the provisions and policies of the Coastal Act. ( 30108.6.) The content of the LCP "shall be determined by the local government . . . in full consultation with the commission and with full public participation." ( 30500, subd. (c).) When the local jurisdiction submits its LCP to the Commission for review and certification, the locality must submit a resolution certifying that it intends to carry out the LCP "in a manner fully in conformity" with the Coastal Act. ( 30510, subd. (a).) The Commission shall certify a proposed LCP if it meets Coastal Act requirements designed to protect identified resources. (Douda, supra, 159 Cal.App.4th at pp. 1187-1188; McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 272.)

Before a local government has a certified LCP, the Commission has the authority to evaluate a coastal permit application for property in the local government's jurisdiction. In issuing the development permit, the Commission must find "the proposed development is in conformity with [the Coastal Act] and that the permitted development will not prejudice the ability of the local government to prepare [an LCP] that is in conformity with the [Coastal Act]." ( 30604, subd. (a).)

However, once the Commission has certified an LCP as final and effective, the local agency has the sole initial authority to issue coastal development permits for land under its jurisdiction. ( 30519, subd. (a); see Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 421.) A party may appeal a local entity's denial of a permit to the Commission, which conducts a de novo review to determine whether the denial was proper under the applicable LCP. ( 30603, subd. (b); 30621, subd. (a).)

A party may challenge the Commission's denial of a coastal development permit by filing a petition for writ of mandate. ( 30801.) The party is entitled to relief if the Commission committed a "prejudicial abuse of discretion," which is established if the Commission has not proceeded in the manner required by law. (Code Civ. Proc.,  1094.5, subd. (b).) A reviewing court applies a de novo review standard in determining whether the Commission's permit decision was "consistent with applicable law." (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361.)

II. Commission Properly Found Coastal Act Standards Govern Permit Application

As her primary contention on appeal, Dr. Marsh contends the Commission erred by evaluating her coastal permit application under the Coastal Act standards, rather than by the standards set forth in an LCP adopted by the County in 1985. The Commission counters that this 1985 LCP was not controlling because it was never made final and effective.

The documents produced by the parties show the Commission voted to certify the County's LCP in November 1985. But the following year, two cities incorporated within the County, Solana Beach and Encinitas, which reduced the County's land within the coastal zone from 11,000 acres to just 2,000 acres. The County then filed an amendment to its LCP to delete the areas now part of Solana Beach and Encinitas, and revise some other provisions. The Commission approved the amendment with suggested modifications. But instead of considering those modifications, the County notified the Commission that it did not plan to assume coastal development permitting authority over its small remaining jurisdiction.

Since that time, the County and the Coastal Commission have essentially treated the County's LCP as abandoned. The Commission has continued to assume sole jurisdiction for issuing coastal development permits for land within the County's jurisdiction, and the Commission (without any objection from the County) has applied the Coastal Act in determining whether these permits would be issued. Thus, in repeatedly seeking permits to develop her land, Dr. Marsh has always submitted those permits to the Commission, and in evaluating Dr. Marsh's applications, the Commission has generally reviewed those applications under the Coastal Act standards, but has considered the prior certified LCP "as guidance" for its decisions.

Despite the long-held understanding by the Commission, the County, and affected landowners that the County's LCP is not the controlling standard, Dr. Marsh now contends the County's 1985 LCP necessarily governed the Commission's review of her 2006 development application because the County never took formal action to withdraw its LCP. This contention is without merit. As explained below, there was no need to take formal action because the County's LCP never took effect under the applicable statutes and regulations.

Under section 30519, subdivision (a), a local government obtains authority to issue coastal development permits after its LCP "has been certified andall implementing actions within the area affected have become effective . . . ."[2] ( 30519, subd. (a), italics added.) The parties agree these implementing actions necessarily include the local entity accepting permitting responsibility and enacting any amendments required by the Commission. Although section 30519, subdivision (a) does not additionally state that the proposed LCP standards take effect at this same time, this rule can be reasonably inferred from the statutory language and the overall statutory scheme. Because the local government is the entity primarily interested in effectuating its own local coastal policies, and is most knowledgeable about those policies, it makes sense that the LCP standards would not apply until the entity adopts a final approved LCP and accepts permitting authority, absent an expressed intention otherwise by the Commission and the local government.

This is precisely the manner in which the Commission has long interpreted section 30519. (Cal. Code Regs, tit. 14,  13544.)[3] California Code of Regulations section 13544, adopted more than 25 years ago, provides that an LCP does not become "final and effective" until the local government: (1) "acknowledges receipt of the Commission's resolution of certification including any terms or modifications which may have been suggested for final certification"; (2) "accepts and agrees to any such terms and modifications and takes whatever formal action is required to satisfy the terms and modifications (e.g. implementations of ordinances)"; and (3) "agrees to issue coastal development permits for the total area included in the certified local coastal program." (Cal. Code Regs.,  13544, subd. (a), italics added.) This regulation further provides that the LCP shall not be deemed "final and effective" until the Commission takes additional steps to acknowledge the local entity's implementing actions, including determining that the local government's response was legally adequate, and the local government files a "[n]otice of the certification . . . with the Secretary of the Resources Agency for posting and inspection as provided in . . . Section 21080.5(d)(2)(v)." (Cal. Code Regs.,  13544, subds. (b)(c)&(d).)

Under California Code of Regulations section 13544, the County's 1985 LCP never took effect. The County's governing body never agreed to the additional terms suggested by the Commission for final certification of the LCP, nor did it agree to issue coastal development permits. Additionally, there is no showing the Commission's executive director determined in writing (or otherwise) that the County's response to its certification action (adding modifications to the proposed amended LCP) was legally adequate; the Commission's executive director reported the determination at a public meeting; or that the County's final certified LCP was posted for public inspection.

Dr. Marsh argues California Code of Regulations section 13544 does not define when an LCP standard becomes effective, and instead addresses only the issue of a local agency's jurisdiction. Dr. Marsh relies on the regulation's phrase "resulting in the transfer of coastal development review authority pursuant to Public Resources Code Section 30519 . . . ." (Cal. Code Regs.,  13544; see fn. 3, ante.) However, viewed in context, this phrase merely highlights the fact that the final LCP certification results in the transfer of review authority, and does not evidence an intent to limit the "deemed final and effective" regulatory language to only the issue of which agency has jurisdiction to issue the permits. (Cal. Code Regs.,  13544.)

Dr. Marsh alternatively contends California Code of Regulations section 13544 is inconsistent with the Coastal Act and thus void. (See Slocum v. State Bd. of Equalization (2005) 134 Cal.App.4th 969, 974 ["[A]gencies do not have discretion to promulgate regulations that are inconsistent with the governing statute, or that alter or amend the statute or enlarge its scope"].) We reject this argument because the regulation is consistent with the Coastal Act.

The Legislature gave the Commission the specific responsibility to promulgate regulations and to adopt procedures regarding the certification of LCP's to implement the Coastal Act's environmental protection policies. ( 30501, 30330.) In providing this broad authority, the Legislature necessarily intended that the Commission would decide the details governing the certification process, including when an LCP would constitute the controlling standard for permit issuance. Specifically, because the Legislature specified the time at which a local entity assumed jurisdiction over coastal development permitting ( 30519, subd. (a)), but did not also specify the time at which an LCP standardbecomes effective, the issue was left to the Commission's determination under its broad authority to establish rules governing LCP certifications. ( 30501.) This authority is particularly important given the shared responsibility between the Commission and the local entities for the issuance of coastal development permits. Under the statutory scheme, it is essential that clear rules be established to provide notice to the public as to when an LCP takes effect, and which entity is responsible for evaluating permits under that standard. The Commission acted lawfully in making clear that LCP's become final and effective only after certain formal steps are taken, including after the local government agrees to any proposed modifications of the LCP and agrees to assume permitting authority.

Dr. Marsh maintains that California Code of Regulations section 13544 is void because it conflicts with section 30604, subdivision (b).[4] The argument is without merit. Section 30604, subdivision (b) does not define what constitutes a "certification"; instead it merely provides that "[a]fter" a certification, the LCP constitutes the governing standard. Dr. Marsh claims that the Legislature in section 30604, subdivision (b) must have been referring to the initial certification (before the locality has taken steps to implement the LCP and accepted jurisdiction) because of language used in section 30519, governing the jurisdiction of a local government to issue coastal development permits. (See fn. 2, ante.) Specifically, Dr. Marsh argues that because section 30519, subdivision (a) states that a local agency obtains jurisdiction only after an LCP "has been certified and all implementing actions within the area . . . have become effective"(italics added), the word"certification" in section 30604, subdivision (b) cannot be interpreted to include all implementing actions, such as the acceptance of permitting authority, and instead the Legislature must have intended that "certification" means that the Commission is bound by an LCP once it is initially certified even if the local entity does not adopt the necessary implementing actions, suggested modifications, or permitting authority.

This argument is unsupported. We are required to interpret statutes in context and in a common sense manner. (See Doe v. Brown (2009) 177 Cal.App.4th 408, 417-418.) In construing a statute, a court must initially focus on the plain words of the statute, but if the language is " 'reasonably susceptible to more than one interpretation,' " a court must then " ' "examine the context in which the language appears," . . . " ' "including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part." ' " [Citation.]' " (Id. at p. 417.) " ' "We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." [Citation.]' " (Id. at pp. 417-418.) Additionally, the Coastal Act specifically provides that it "shall be liberally construed to accomplish its purposes and objectives." ( 30009; see Douda, supra, 159 Cal.App.4th at p. 1192.)

Under these principles, we cannot accept Dr. Marsh's view that sections 30519 and 30604 reflect the Legislature's intent that once the Commission has initially certified an LCP, this certification requires the Commission to immediately apply this standard, despite that the local government has not enacted implementing actions or accepted permitting authority. Although the word "certified" in section 30519, subdivision (a) appears to refer to the initial certification of the LCP (without implementing actions), this does not reasonably support that the Legislature intended that the word "certification" in section 30604, subdivision (b) means the exact same thing. " ' "There is no rule of law that necessarily requires the same meaning to be given to the same word used in different places in the same statute." [Citations.] "When the occasion demands it, the same word may have different meanings to effectuate the intention of the act in which the word appears." [Citations.]' " (People v. Jones (1988) 46 Cal.3d 585, 595.) Under Dr. Marsh's proposed interpretation, section 30604, subdivision (b) requires the Commission to treat an LCP as the effective standard even if the local entity has no intention of implementing the plan and is not itself treating the LCP as a valid or enforceable planning document. That interpretation undermines the fundamental policies of the Coastal Act, and thus is unsupported.

Dr. Marsh contends the Commission should have applied the County's 1985 LCP because "it reflects the unique circumstances of the local community." We agree that the Legislature created the LCP procedure to recognize and respect the importance of local land use decisions. But an equally important legislative concern was to ensure that local decisions are consistent with protective state coastal policies. (Pratt, supra, 162 Cal.App.4th at pp. 1075-1076.) Under the Act, "state policies prevail over the concerns of [a] local government." (Id. at p. 1075.)

Although the County's LCP may have reflected local circumstances in 1985, the circumstances have changed significantly. After the County sought to amend the LCP, the Commission found the LCP was no longer consistent with the Coastal Act, and identified suggested modifications to conform to the Act. There is no evidence that these modifications were made, or that any modifications were approved by the Commission. There is further no showing that the County reviewed the LCP when it updated its other land use planning documents. In this regard, Dr. Marsh's reliance on the fact that the Commission applies standards in other LCP's that were established before 1985 is unhelpful. The critical point is that there is no evidence the County considers its LCP to be valid, and therefore there would be no reason for the County to review or evaluate the plan for consistency with its own current standards or the standards applicable to the Coastal Act.

We emphasize that the issue here is not whether the County should have accepted the modifications to the LCP proposed by the Commission more than 20 years ago and implemented the LCP by accepting permitting authority. Instead, it is whether the Commission erred in applying the statewide standards, rather than the standards of an outdated plan that was essentially abandoned by the entity that proposed it. Although the Coastal Act requires the Commission to conduct regular reviews of certified LCP's, under the particular circumstances here there would be no reason for the Commission to have reviewed the LCP where the County did not consider the LCP to be the valid and controlling plan.

III. Failure to Set Hearing Within 49 Days of Permit Application Filing

Dr. Marsh next contends she is entitled to a coastal development permit as a matter of law because the Commission did not schedule a hearing within 49 days of her permit application.

Section 30621 provides that: "A hearing on any coastal development permit application or an appeal shall be set no later than 49 days after the date on which the application . . . is filed with the commission." "This short time limit is 'designed to avoid unnecessary bureaucratic delay.' " (EncinitasCountryDay School v. California Coastal Com. (2003) 108 Cal.App.4th 575, 584.)

Dr. Marsh applied for a coastal development permit on September 1, 2006. The Commission held a hearing on the petition 102 days later, on December 12, 2006. The Commission concedes the hearing was beyond the statutory deadline, but argues that it did not lose jurisdiction to deny the permit because the 49-day rule was merely directory. The Commission relies on LT-WR, L.L.C. v. California Coastal Com. (2007) 152 Cal.App.4th 770, 788-789 (LT-WR).

In LT-WR, the Commission held a public hearing about six months beyond the statutory 49-day deadline, but the court found the noncompliance with section 30621 "did not divest [the commission] of jurisdiction to deny [the permit] application." (LT-WR, supra, 152 Cal.App.4th at p. 788.) The court explained that as a general rule, a public agency's failure to comply with a procedural step does not necessarily invalidate the action unless " 'the Legislature clearly expresses a contrary intent. [Citation.]' " (Ibid.) After examining the Coastal Act, the court found the statutes do "not indicate a legislative intent to make the prescribed [49-day] time limit jurisdictional." (Ibid.) The court reasoned that unlike other related statutes, section 30621 merely establishes the deadline without setting forth a loss of jurisdiction as the consequence for violating the rule. (Id. at pp. 788-789.) Specifically, the court compared section 30621 with section 30625, subdivision (a), pertaining to appeals to the Commission, which provides that if the Commission does not take action within the specified deadlines, "the decision of the local government . . . shall become final . . . ."(LT-WR, supra, at p. 789.) The LT-WR court also found the practical consequences of viewing the 49-day rule as jurisdictional would undermine the purposes of the statutory scheme, and noted that the permit applicant "was not without a remedy in the face of the Commission's delay in hearing the matter. [The applicant] could have filed a petition for writ of mandate to compel the Commission to hear and decide the permit application." (Ibid.)

We are persuaded by LT-WR's reasoning, and follow its holding. If the Legislature had intended that a permit application would be deemed approved after a delay in setting a hearing, the Legislature could have expressly required this result. Absent such legislative intent, it would defeat the Coastal Act policies to hold that the remedy for a violation of the 49-day rule is an automatic grant of a coastal development permit.

In this regard, Dr. Marsh's reliance on Encinitas Country Day School, Inc. v. California Coastal Com., supra, 108 Cal.App.4th 575 is misplaced. In Encinitas Country Day, we interpreted the 49-day rule as it applied to the Commission's jurisdiction to hear an appeal, and not to the statutory deadline when the Commission is the initial issuing agency. (Id. at pp. 583-587.) The rules applicable to these two situations are different. As explained in LT-WR, the Legislature specifically provided that, with respect to appellate jurisdiction, the local government's determination shall become final if the statutory deadline is not satisfied, but the Legislature did not impose this same remedy when the Commission is the agency first considering the coastal permit application. (LT-WR, supra, 152 Cal.App.4th at pp. 788-789.)

We recognize the purpose of the 49-day rule is to preclude unnecessary delay, and a determination that the deadline is merely directory does not provide substantial incentive for the Commission to comply with the statutory timeline. However, where the Commission's delay is unreasonable or causes substantial prejudice to an applicant, a court may well conclude that the violation may have affected the Commission's jurisdiction to act. In this case, the delay was minimal and Dr. Marsh presented no evidence that she was prejudiced by the delay.

IV. Roll Call Vote Requirement

Dr. Marsh next contends the Commission never legally acted on her petition because it violated California Code of Regulations section 13094 by taking a "unanimous roll call" vote instead of requiring each commissioner to orally vote on the record at the hearing.

California Code of Regulations section 13094 states: "(a) Voting upon permit applications shall be by roll call, with the chairperson being polled last. [] (b) Members may vote 'yes' or 'no' or may abstain from voting, but an abstention shall not be deemed a 'yes' vote. [] (c) Any member may change his or her vote prior to the tally having been announced by the chairperson, but not thereafter."

At the conclusion of the staff presentation on Dr. Marsh's permit application and after a brief discussion by the commissioners on the application, the commission chair stated that the motion was to recommend a denial of Dr. Marsh's coastal development application, and asked if there was any objection to a unanimous roll call vote. No one objected. The chair then stated: "Seeing none, the motion fails [sic], and the Commission hereby denies a Coastal Development Permit for the proposed development."

The transcript shows nine commissioners were present at the hearing. After the hearing, the Commission prepared a written vote tally entitled "ROLL CALL VOTE" listing a "no" vote from eight individual commissioners, including the chair. This document specifically identified how each of the eight commissioners voted. The written tally also reflected that the ninth commissioner, who had been initially present at the hearing, did not vote.

There was no prejudicial error in the vote counting. The record shows that each voting commissioner considered the permit application, and had the opportunity to discuss the issues on the record. Although we agree with Dr. Marsh that a "roll call" generally refers to an oral tally of individual votes, the Commission's action in unanimously approving the motion, without orally announcing each individual vote, did not invalidate the Commission's action. The record shows that eight commissioners voted in favor of the motion denying the permit. The one commissioner who was present at the beginning of the hearing, but who did not vote, was apparently not in attendance at the time of the vote. Because it is clear that a majority of the Commission voted to deny her application, Dr. Marsh's arguments that we should remand for an automatic approval of the petition are unpersuasive. Nothing in the applicable statutes suggests that the type of voting procedure that occurred here results in automatic approval of a coastal development project. Such a result would unfairly prejudice the public.

DISPOSITION

Judgment affirmed. Appellant to bear respondent's costs on appeal.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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[1] All statutory references are to the Public Resources Code unless otherwise specified.

[2] Section 30519, subdivision (a) states: "Except for appeals to the commission . . . after a local coastal program, or any portion thereof, has been certified and all implementing actions within the area affected have become effective, the development review authority . . . shall no longer be exercised by the commission over any new development proposed within the area to which the certified local coastal program, or any portion thereof, applies and shall at that time be delegated to the local government that is implementing the local coastal program or any portion thereof."

[3] This regulation states: "After the certification or conditional certification of a local coastal program, the . . . Commission shall transmit copies of the resolution of certification and any suggested modifications and findings to the local government that submitted the local coastal program . . . . The certification of a local coastal program resulting in the transfer of coastal development review authority pursuant to Public Resources Code Section 30519 shall not be deemed final and effective until all of the following occur: [] (a) The local government with jurisdiction over the area governed by the certified local coastal program, by action of its governing body, acknowledges receipt of the Commission's resolution of certification including any terms or modifications which may have been suggested for final certification; accepts and agrees to any such terms and modifications and takes whatever formal action is required to satisfy the terms and modifications (e.g. implementation of ordinances); and agrees to issue coastal development permits for the total area included in the certified local coastal program; [] (b) The . . . Commission determines in writing that the local government's action and the notification procedures for appealable development . . . are legally adequate to satisfy any specific requirements set forth in the Commission's certification order; [] (c) The executive director reports the determination to the Commission at its next regularly scheduled public meeting and the Commission does not object to the executive director's determination. If a majority of the commissioners present object to the executive director's determination and find that the local government action does not conform to the provisions of the Commission's action to certify the LCP, the Commission shall review the local government's action and notification procedures pursuant to Articles 9-12 as if it were a resubmittal; and [] (d) Notice of the certification of a local coastal program shall be filed with the Secretary of the Resources Agency for posting and inspection as provided in Public Resources Code Section 21080.5(d)(2)(v)." (Cal. Code Regs., tit. 14,  13544.) All references to California Code of Regulations are to Title 14.

[4] Section 30604, subdivision (b) reads: "After certification of the local coastal program, a coastal development permit shall be issued if the issuing agency or the commission on appeal finds that the proposed development is in conformity with the certified local coastal program."