Ackerberg v. >Cal.> Coastal
Com.

 

 

 

 

 

 

 

Filed 8/27/12  Ackerberg v. Cal. Coastal Com. CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
ONE

 
>

LISETTE ACKERBERG, Individually and as Trustee, etc.,               Plaintiff and Appellant,               v.   CALIFORNIA COASTAL COMMISSION,               Defendant and Respondent;   STATE COASTAL CONSERVANCY,               Real Party in Interest and             Respondent.

B235351         (Los Angeles County       Super. Ct. No. BS122006)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, James C. Chalfant, Judge.  Affirmed.

            Law Office
of David C. Codell, David C. Codell; Law Office of Diane R. Abbitt,
Diane R. Abbitt; Richards, Watson & Gershon and Steven H. Kaufman
for Plaintiff and Appellant.

            Kamala D.
Harris, Attorney General, John A. Saurenman, Senior Assistant Attorney General,
and Jamee Jordan Patterson, Supervising Deputy Attorney General, for Defendant
and Respondent and for Real Party in Interest and Respondent.

            An owner of
beachfront real property in Malibu, California, dedicated two public accessway
easements on the property, one vertical and one lateral, as mitigation for
development permits under the California Coastal Act of 1976 (Coastal
Act).  (Pub. Resources Code,
§§ 30000–30900; all undesignated section references are to that
code.)  Later, at a public hearing, the California
Coastal Commission (Commission) issued an administrative cease and desist order
to remove development from the easements so they could be opened and provide
public access to the beach.  Before the
Commission, the landowner argued
that (1) the offer to dedicate the vertical easement was subject to an
unfulfilled condition precedent â€” a nearby publicly owned
easement would be opened first â€” and (2) the order was
precluded by res judicata based on the judgment in a prior lawsuit between the
landowner and a nonprofit organization concerning the opening of the vertical
easement on the landowner’s property. 
The Commission rejected those arguments and issued the cease and desist
order in an effort to open the landowner’s easements.

            The
landowner then filed this action, seeking a petition for a writ of
administrative mandate overturning the Commission’s cease and desist
order.  The trial court denied the
petition.  The landowner appealed.

            On appeal,
the landowner points to the original permit findings to support the argument
that a prerequisite to opening the vertical easement renders the cease and
desist order invalid, claiming the Commission promised it would attempt to open
a nearby county-owned accessway easement before opening the accessway easement
on the landowner’s property.  We disagree
because there is no unsatisfied prerequisite; the landowner’s argument confuses
permit findings, which serve to facilitate review on appeal by elucidating the
Commission’s deliberative process, with terms and conditions, which impose
requirements on the coastal development permit agreement between the landowner
and the Commission to ensure that development complies with the Coastal
Act.  The landowner also asserts that the
Commission and the trial court should have applied the 1986 local coastal
program standards in reaching their respective decisions.  We disagree because the Commission and the
trial court applied the proper standards, which were those in place at the time
of enforcement given that the permit was to be interpreted under the Coastal
Act.  The landowner contends that the
cease and desist order is not supported by substantial evidence.  We disagree. 
Finally, the landowner argues the judgment in the prior suit between the
nonprofit organization and the landowner precludes the cease and desist
order.  We disagree because public policy
would be undermined by applying res judicata in this case.

>I

>BACKGROUND

A.        The Coastal Act

            The
California Legislature implemented the goals of the federal Coastal Zone Management
Act (16 U.S.C. §§ 1451–1466) by enacting the Coastal Act in 1976,
which codifies the policy of maintaining public access to the ocean as set
forth in article X, section 4 of the California Constitution.  Consistent with the principle that regulatory
and enforcement powers be separated, the Legislature divided authority under
the Coastal Act between two state agencies, the Commission, established under
the Coastal Act, and the State Coastal Conservancy (Conservancy), established
under division 21 of the Public Resources Code (§§ 31000–31410)
(Conservancy Act).  (See §§ 30300
[creating the Commission], 31100 [establishing the Conservancy].)

            The
Commission administers the Coastal Act by approving local coastal programs or
acting as the reviewing body for coastal development permits in areas where no
local coastal program has been approved. 
(§ 30600, subd. (c).) 
The Commission may condition its approval of coastal development permits
on mitigation measures, including offers to dedicate public coastal accessway
easements (offers to dedicate), designed to offset the impacts of development
on public access to the coast. 
(§ 30212; see also § 30534.) 
Offers to dedicate are necessary because by law the Commission cannot
hold title to property; thus, permit applicants cannot transfer public
accessway easements to the Commission. 
(§§ 30330–30344.)  The
Coastal Act “provides for two kinds of access [easements]:  ‘vertical’ access, that is, access from the
nearest public roadway to the sea; and ‘lateral’ access, that is, access along
the coast.  [Citations.]”  (Grupe
v. California Coastal Com. (1985) 166 Cal.App.3d 148, 161; see also
§ 30212, subd. (a).)  Vertical
easements enable public access from the public road to the ocean, while lateral
easements run parallel to the ocean and enable public beach access inland of
the mean high-tide line.  The public
cannot use a mitigation accessway easement unless a public or nonprofit entity,
approved by the Conservancy, accepts the offer to dedicate by way of a recorded
certificate of acceptance and acknowledgement, under which that “public agency
or private association agrees to accept responsibility for maintenance and
liability of the accessway.” 
(§ 30212, subd. (a).) 
Most offers to dedicate are irrevocable for a period of 21 years
from the date of the offer.

            Originally,
the Legislature granted the Conservancy authority to acquire land and directed
it to secure public accessways, but did not mandate that the Conservancy accept
all offers to dedicate.  (See
§ 31105, added by Stats. 1976, ch. 1441, § 1 [“conservancy is
authorized to acquire . . . real property”].)  Subsequently, some offers to dedicate expired
when they were not accepted through recorded certificates of acceptance within
the period specified as the irrevocable period of the offers.  In 2002, the Legislature amended the
Conservancy Act to require the Conservancy to accept every offer to dedicate that would otherwise expire within
90 days.  (§ 31402.2, added by
Stats. 2002, ch. 518, § 4.) 
The Legislature added language clarifying its intent:  “In order to prevent the potential loss of
public accessways to and along the state’s coastline, it is in the best
interest of the state to accept all offers to dedicate real property that
. . . have the potential to provide access to . . . any
beach, shoreline, or view area, or that provide a connection to other easements
or public properties providing this access.” 
(§ 31402.1, subd. (b)(1).)

            Although
the Conservancy must accept all easements to prevent expiration of the offers
to dedicate, it has some discretion in opening and managing easements.  (See §§ 30214 [legislative intent for
implementing public access policies], 31402.2 [requiring Conservancy to accept
all accessway offers prior to expiration], 31404 [Conservancy is not required
to “open any area for public use when, in its estimation, the benefits of
public use would be outweighed by the costs of development and
maintenance”].)  The Legislature granted
the Conservancy discretion to act in the public interest so long as it
maintains public accessways.  (>Ibid.) 
Section 31402.3 of the Conservancy Act governs the transfer of public
access easements to nonprofit organizations. 
It provides the Conservancy may “enter into agreements with
. . . nonprofit organizations for the development, management, or
public use of the accessway . . . [and] . . . shall retain
the right to reclaim the easements . . . in the event that
. . . the nonprofit organization . . . violates the terms
of the agreement.”  (§ 31402.3,
subd. (b).)  Any nonprofit
organization seeking to accept an offer to dedicate must first submit a
management plan to the Conservancy outlining the nonprofit’s planned management
and operation of the easement. 
(§ 31402.3, subd. (c)(2), amended by Stats. 2003, ch. 337,
§ 3.)  The management plan must
grant the Conservancy the right to reclaim or assign the interest to another
public agency or nonprofit organization “if the [C]onservancy and the
[C]ommission determine that the nonprofit organization is not managing or
operating the interest consistent with the management plan
. . . .”  (§ 31402.3,
subd. (c)(3).)

B.        The Accessway Easements

            In 1983,
Ralph Trueblood, the prior owner of what is now the Ackerberg property,href="#_ftn1" name="_ftnref1" title="">>>[1] applied for a coastal development permit to construct
a bulkhead on the property.  The permit
was approved subject to an offer to dedicate, irrevocable for 21 years, a
lateral public accessway easement extending from the exterior toe of the
bulkhead to the mean high-tide line.  In
February 1984, Ackerberg purchased the property subject to the offer to
dedicate a lateral easement.

            In 1984,
Ackerberg applied to the Commission for a coastal development permit to
demolish a beachfront Malibu home and replace it with a home quadruple the size
of the existing home.  In 1985, the
Commission approved the permit subject to an offer to dedicate a vertical
public accessway easement through the property that would be irrevocable for 21
years.  At the permit hearing, Ackerberg
proposed a condition be added to the permit that would “first require
development of [a nearby county easement] before the development of the
Ackerberg [easement] accessway and in the event [the county easement] is
developed that the requirement for access on [Ackerberg’s property] may be abandoned.”  Ackerberg asserted the county easement should
be opened before her easement because the county easement would provide
adequate public access to the beach.  The
Commission did not approve the proposed amendment, although Commission staff
and the commissioners discussed a
preference for opening publicly owned easements prior to privately owned
easements as a matter of policy, and the Commission amended the permit findings
to reflect that discussion.

The amended permit findings
included a reference to the commissioners’ discussion of the proposed Malibu
Local Coastal Plan, which had not yet been adopted.  The commissioners speculated that, if the
plan were adopted, it could include provisions to require that publicly owned
easements be opened prior to privately owned easements.  The revised findings provided that “[t]he
Commission believes as a matter of policy, publically owned vertical accessways
should be improved and opened to the public before additional offers to
dedicate vertical easements are opened,” but the “appropriate vehicle for
establishing the policy relative to the precise spacing of vertical accessways
and whether previously secured offers to dedicate vertical accessways can be
extinguished if another vertical accessway is improved and opened within 500
feet of the subject property [is] the [land use plan].”  The findings included additional qualifying
language providing that “[t]his position assumes that the publically owned accessway is within 500
feet of the subject property, that it is equally suitable for public use based
on management and safety concerns, and that improvements to accomplish public
use are feasible.  Once a public
accessway has been improved and opened for public use, and a suitable policy
and mechanism has been developed and adopted to ensure that such vertical
accessway remains open and available for public use and assuming the Commission
has approved a policy that outstanding offers to dedicate additional vertical
access easements within 500 feet of an opened vertical accessway can then
be extinguished, staff will initiate actions to notify affected property owners
that they can take steps to extinguish such offers to dedicate.  As part of the Commission’s public access
program, procedures will be developed to implement this directive.”  The findings further stated that the
easement termination might be
accomplished in the future >if a local coastal program were adopted
for the Malibu area, but noted that this was contingent on the county staff recommendations being approved by
both the Los Angeles County Board of Supervisors and the Commission.  The Ackerberg permit was issued at the
Commission meeting in January of 1985; the Malibu Local Coastal Program Land
Use Plan was certified on December 11, 1986.  The Malibu Local Coastal Program Land Use
Plan contained a provision that future offers to dedicate would not be required
if the county determined that adequate access existed nearby and provided for
the abandoning of existing offers to dedicate on the condition that adequate
alternative access was already opened to the public.  (See Malibu Local Coastal Program Land Use
Plan (Dec. 11, 1986) § 4.1.2, Vertical Access, P51
[as of
Aug. 22, 2012].)

            In 2003,
Access for All, a nonprofit organization, contracted to manage the Ackerberg
vertical easement in exchange for funding from the Conservancy.  Access for All recorded a certificate of
acceptance and acknowledgement on December 17, 2003, within the 21-year
period provided for in the recorded offer to dedicate the easement.  The recorded acceptance included the
following language:  “It is the intention
of the California Coastal Commission . . . and Access for All to
ensure that the purposes, terms and conditions of the Offer to Dedicate be
carried out within a framework established by and among the Commission, Access
for All and the State Coastal Conservancy . . . in order to implement the Commission’s Coastal Access Program
pursuant to the California Coastal Act of 1976 . . . .  [¶] . . .  [¶] 
[A]cceptance of the offer is subject to a covenant that runs with the
land, providing that any offeree to
accept the easement may not abandon it but must instead offer the easement
to other public agencies or private associations acceptable to the Executive
Director of the Commission . . . .  [¶] 
. . .  [¶]  [T]he easement will be transferred to another
qualified entity or to the Conservancy in the event that Access for All ceases
to exist or is otherwise unable to carry out its responsibilities as Grantee, >as set forth in a management plan approved
by the Executive Director of the Commission . . . [¶] [and] on
the condition that should Access for All cease
to exist or fail to carry out its
responsibilities as Grantee to manage the easement for the >purpose of allowing public pedestrian access
to the shoreline, then all of
Access for All’s right, title and
interest in the easement shall vest in the State of California
. . . .  The
responsibilities of Access for All to manage the easement shall be those set
forth in the Management Plan dated July 28, 2003, and maintained in the
offices of the Commission and the Conservancy . . . .”  (Italics added.)

>1.         The
Management Plan

            Access for
All, the Commission, and the Conservancy signed the public vertical access
easement management plan (management plan) for the purpose of providing “public
pedestrian access to Carbon Beach.”  The
parties thereby agreed that the easement would be developed in two phases.  During the first phase, Access for All would
hire a surveyor to locate the boundaries of the easement and identify
encroachments . . . .” 
Access for All would then “submit the information to the Coastal
Commission staff for review and action.” 
The management plan specified that the wall along Pacific Coast Highway,
two eucalyptus trees, and a large generator box appeared to be encroaching on
the easement.  During the second
development phase, Access for All was to work with Ackerberg to determine the
best means of delineating the public accessway, either with “a short side yard
fence or marking on the existing pavement.” 
But “prior to placement of any improvements on the site,” Access for All
was to submit design plans to both the Commission and the Conservancy “for
review and approval and subsequent amendment to this management plan.”  The management plan could be amended only
with written approval of the Commission, the Conservancy, and Access for
All.  The management plan included
details about the hours the access gates would be unlocked, the frequency of
trash pickup, and the number and content of signs to be placed at the
easement.  Additionally, Access for All
agreed to submit a report to the Commission and the Conservancy every year on
February 1, in which it would outline “efforts to open the vertical
easement area,” the “estimate[d] number of users,” and “any concerns raised
regarding the public use [of the easement] and efforts to address those
concerns.”

>2.         Enforcement
Proceedings

            After
Access for All accepted the easement, Ackerberg’s attorneys persistently sought
an alternative to opening the easement. 
Ackerberg took the position with Commission enforcement staff that her
offer to dedicate was contingent on the Commission’s alleged promise that it
would attempt to open the county easement before opening her easement and that
her easement could be terminated because the county easement would provide
adequate alternative access.  On
December 13, 2005, the Commission notified Ackerberg’s attorney that all
encroachments in the vertical easement had to be removed, including the portion
of the riprap in the lateral easement. 
The development encroaching in the easement was described as “rock
riprap, a 9-ft high wall, a concrete slab and generator, and a fence, railing,
planter, light posts, and landscaping in the area of the property covered by
the public access easements . . . which were established pursuant to
Commission-issued Coastal Development Permit Nos. 5-83-360 and 5-84-754.”

            In 2007,
after repeatedly communicating that the vertical easement on Ackerberg’s
property had to be opened, the Commission commenced administrative enforcement
proceedings under section 30810 of the Coastal Act by sending notice to
Ackerberg.  But the Court of Appeal
stayed enforcement proceedings pending the outcome of litigation commenced by
Ackerberg’s neighbor in 2006 involving the Ackerberg easement.  The Commission prevailed in that
litigation.  Later, the Court of Appeal> affirmed the judgment in favor of the
Commission.  (Roth v. California Coastal Com. (Apr. 23, 2008, B195748,
B200099) [nonpub. opn.].)  The Commission renewed its enforcement efforts
by scheduling an administrative hearing for December 2008.  The hearing was postponed at Ackerberg’s
request.

>3.         The
Access for All Lawsuit and Settlement Agreement

            On
January 6, 2009, notwithstanding the detailed terms of the management plan
stating that Access for All was to seek approval from the Commission and the
Conservancy at regular intervals during the development process, Access for All
commenced a suit against Ackerberg to open the easement.  (Access
for All v. Lisette Ackerberg Trust (Super. Ct. L.A. County, 2009,
No. BC405058) (Access for All
lawsuit).)  In response, Commission
staff did not order Access for All to withdraw the suit under the terms of the
management plan agreement.  Instead,
Commission staff met with Commission counsel, then informed Access for All that
the Commission could not “provide legal advice on the matter, [but] there are a
few ways in which filing suit prior to a hearing may [a]ffect the outcome of
our administrative proceedings.  First,
filing suit may cause the court to place a stay on any href="http://www.fearnotlaw.com/">administrative proceedings
. . . .  In addition it
may be beneficial to have an administrative record for the courts to review
instead of them reviewing the facts of the case de novo.”  Commission staff communicated with
Ackerberg’s attorney throughout this period. 
Ackerberg’s attorney emailed a meeting request to Commission executives
on April 13, 2009, because Access for All had informed Ackerberg that it
could not proceed further with “any course of action other than what it ha[d]
already taken with regard to the Ackerberg accessway” without approval from the
Commission and the Conservancy.  The
executive director of the Commission, Peter Douglas, agreed to meet with
Ackerberg’s attorney, but sent her an email, explaining, “[W]e have made our
position very clear on many previous occasions . . . .  There is a major public asset and value at
stake here . . . . I do not see any basis for giving away
or abandoning such a precious public resource . . . .”  On May 21, 2009, Douglas emailed a third
party regarding the Ackerberg easement, stating, “To my knowledge Access for
All wants to open this access way and does not think eliminating it is
something they support.  Even if they
did, we will not.”

            The
Commission rescheduled the administrative enforcement hearing for June 10,
2009.  On May 29, 2009, Commission
staff postponed the hearing and scheduled a meeting for June 5, 2009, with
Ackerberg’s attorney because Commission staff were “attempting to resolve this
matter amicably.”  On June 3, 2009,
Ackerberg’s attorney sent Commission staff an email stating that counsel
representing Access for All would join them at the June 5 meeting because,
“[a]s you are aware Access for All brought an enforcement action against Mrs.
Ackerberg in LA Superior Court this last January.”  (See Access
for All lawsuit, supra,
BC405058.)  Commission staff responded
that counsel for Access for All should not attend the meeting.

            On
June 19, 2009, the superior court in the Access for All lawsuit, supra,
No. BC405058, approved a settlement agreement between Access for All and
Ackerberg (Ackerberg Trust Settlement).  The
Ackerberg Trust Settlement provided that Ackerberg would pay $10,500 of Access
for All’s attorney fees in the Access for
All lawsuit; Access for All would commence a lawsuit against Los Angeles
County to open the county easement; Ackerberg would fully fund the lawsuit
against Los Angeles County; and Ackerberg’s attorney would serve as lead
counsel in the suit against Los Angeles County. 
The Ackerberg Trust Settlement also provided that, if the lawsuit were
successful, Ackerberg would pay to improve and open the county accessway;
Access for All and Ackerberg would jointly seek Commission approval to
terminate the Ackerberg easement; and Ackerberg would pay $250,000 for
maintenance, management, and enforcement of the county easement if her easement
were terminated.  The $250,000 payment
would be split between the Conservancy and Access for All unless the
Conservancy did not “wish to accept the funds,” in which case the full amount
would be paid to Access for All as maintenance costs for 10 years for the
county easement.  If the lawsuit were not
successful, Ackerberg and Access for All would jointly apply to the Commission
to amend the management plan to include security measures at Ackerberg’s
expense and then open the Ackerberg easement within 90 days.

On July 6, 2009, Douglas
exchanged emails with Steve Hoye, the executive director of Access for
All.  Douglas expressed surprise at
learning that Access for All had entered into a settlement agreement with
Ackerberg and noted that neither Access for All nor Ackerberg had mentioned the
possible settlement in recent meetings with Commission staff.  In his second email, Douglas informed Hoye
that he saw “the $125,000 offer to the Commission as a bribe to acquiesce in
giving up a public right that we will reject AS WE HAVE EVERY TIME SUCH AN
OFFER HAS BEEN MADE IN THE PAST under similar circumstances
. . . .”

>4.         The
Cease and Desist Order

            On
July 8, 2009, the Commission held its rescheduled administrative hearing
and issued a cease and desist order that directed Ackerberg to “[r]emove all
unpermitted development located within the lateral and vertical public access
easements on the property according to the provisions of this Order.”  At the hearing, Ackerberg argued that the
Commission’s actions were barred under the doctrine of res judicata by the
Ackerberg Trust Settlement in the Access
for All lawsuit, supra,
No. BC405058.  In determining to
issue the cease and desist order, the Commission referred to the Malibu Local
Coastal Program, which was adopted in 2002 under the Coastal Act.  (See § 30600.5.)  The 2002 Malibu Local Coastal Program
explicitly forbade abandoning any public access easements.

            Ackerberg
initiated the present action against the Commission, filing a petition for a
writ of administrative mandate (see Code Civ. Proc., § 1094.5) and arguing
that the cease and desist order was not supported by substantial evidence; the
Commission erred by citing the public access provisions from the current local
coastal program, namely, the 2002 Malibu Local Coastal Program, in its
decision; and the cease and desist order was barred under the doctrine of res
judicata.  The trial court denied
Ackerberg’s petition for a writ of administrative mandate, determining that
Access for All did not act in the public interest by settling the lawsuit and
that the Commission and the Conservancy were not in privity with Access for
All, thereby precluding the application of res judicata.  The trial court determined that the
Commission’s order was supported by substantial evidence and was not premature
because authorization to “use” the easement area did not include authorization
to erect structures on the easement without first obtaining permits.  In reaching its decision, the trial court
referenced standards from the 2002 Malibu Local Coastal Program as applicable
to the cease and desist order.

            Ackerberg
appealed from the trial court’s denial of her petition for a writ of
administrative mandate.

>II

>DISCUSSION

            On appeal,
Ackerberg points to the original permit findings to support the argument that a
prerequisite to opening the vertical easement renders the cease and desist
order invalid, claiming the Commission promised it would attempt to open a
nearby county-owned accessway easement before opening the accessway easement on
the Ackerberg property.  We disagree
because there is no unsatisfied prerequisite; Ackerberg’s argument confuses
permit findings, which serve to facilitate review on appeal by elucidating the
Commission’s deliberative process, with terms and conditions, which impose
requirements on the coastal development permit agreement between Ackerberg and
the Commission to ensure that development complies with the Coastal Act.  Ackerberg also asserts that the Commission
and the trial court should have applied the 1986 local coastal program
standards in reaching their respective decisions.  We disagree because the Commission and the
trial court applied the proper standards, which were those in place at the time
of enforcement.  Ackerberg contends that
the cease and desist order is not supported by substantial evidence.  We disagree. 
Finally, Ackerberg argues that the judgment in the Access for All lawsuit and the Ackerberg Trust Settlement preclude
the cease and desist order under the doctrine of res judicata.  We disagree because applying res judicata in
this case would contravene public policy. 
Accordingly, we affirm the trial court’s denial of Ackerberg’s petition
for a writ of administrative mandate.

A.        Standard of Review

Under Public Resources Code section
30801, an “aggrieved person” secures judicial review of a Commission action by
filing a petition for a writ of mandate pursuant to Code of Civil Procedure
section 1094.5.  “‘The inquiry in such a
case shall extend to the questions of whether the [Commission] has proceeded
without, or in excess of jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion.  Abuse of discretion is established if the
[Commission] has not proceeded in the manner required by law, the order or
decision is not supported by the findings, or the findings are not supported by
the evidence.’  (Id., § 1094.5, subd. (b).)”  (La
Costa Beach Homeowners’ Assn. v. California Coastal Com. (2002) 101
Cal.App.4th 804, 814.)  In reviewing the
agency’s decision, a court “‘“must consider all relevant evidence,
. . . a task which involves some weighing to fairly estimate the
worth of the evidence.  [Citation.]”  [Citations.] 
That limited weighing is not an independent review where the court
substitutes its own findings or inferences for the agency’s.  [Citation.] 
‘It is for the agency to weigh the preponderance of conflicting evidence
[citation].  Courts may reverse an
agency’s decision only if, based on the
evidence before the agency, a reasonable person could not reach the
conclusion reached by the agency.’ 
[Citation.]”  [Citation.]’”  (Ibid.)

            “‘“‘“[I]n
an administrative mandamus action where no limited trial de novo is authorized
by law, the trial and appellate courts occupy in essence identical positions
with regard to the administrative record, exercising the appellate function of
determining whether the record is free from legal error.  [Citations.]” 
[Citation.]  Thus, the conclusions
of the superior court, and its disposition of the issues in this case, are not conclusive
on appeal.  [Citation.]’  [Citation.]” 
[Citation.]’  [Citation.]”  (La
Costa Beach Homeowners’ Assn. v. California Coastal Com., >supra, 101 Cal.App.4th at pp. 814–815.)

B.        Terms and Conditions of
the Vertical Easement

            Ackerberg
contends that the Commission erred in issuing the cease and desist order
because it ignored the Commission’s 1985 promise that it would attempt to open
the nearby county-owned easement prior to opening Ackerberg’s easement.  We disagree because Ackerberg’s argument is
based on the faulty assumption that permit findings are tantamount to permit
terms and conditions.  Simply put, the
Commission did not promise to open the county-owned easement prior to opening
Ackerberg’s easement.

“‘A contract may validly include
the provisions of a document not physically a part of the basic
contract. . . .  “It is,
of course, the law that the parties may incorporate by reference into their
contract the terms of some other document. 
[Citations.]  But each case must
turn on its facts.  [Citation.]”’”  (Troyk
v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1331.)  The contractual
agreement between Ackerberg and the Commission, coastal development permit
No. 5-84-754, was attached to the recorded offer to dedicate the vertical
easement.  The coastal development permit
and the offer to dedicate both incorporated terms that required those
agreements to be construed in compliance with the Coastal Act, including its
public access provisions and management plan requirements.  (See §§ 31400 [declaring legislative
policy of guaranteeing public access to coastal resources and noting the
Conservancy’s principal role in accessway implementation], 31402.3, subd. (c)(2)
[requiring management plans].)  Accordingly,
we look to the permit, the offer to dedicate, the transcript of the public
hearing, and the management plan in evaluating the agreement between Ackerberg
and the Commission.

            Ackerberg
cites principles of contract interpretation to support the argument that
findings included in the 1985 permit are binding terms of the contract between
Ackerberg and the Commission that should be construed against the
Commission.  Ackerberg states that as
reasonably construed, and relied on, the findings guarantee that the vertical
easement would be terminated either when the county easement was opened or when
the offer to dedicate expired.  This
argument fails for three reasons:  It
ignores the purpose of findings under the Coastal Act, thereby confusing
findings with terms and conditions; it does not account for the policies
underlying the Coastal Act, including limitations on the Commission’s approval
authority; and it requires a narrow reading of the findings rather than reading
the permit and the findings as a whole.

            “The
purpose of requiring written findings [under the Coastal Act] is to record the
grounds on which the decision of the Commission rests and thus render its
legality reasonably and conveniently reviewable on appeal.  [Citations.] 
Without appropriate written findings, the trial court cannot properly
perform its function in a proceeding for administrative mandate and determine
whether the agency’s decision is supported by its findings and its findings are
supported by the evidence. 
[Citation.]”  (>McAllister v. California Coastal Com.
(2008) 169 Cal.App.4th 912, 941.)  The
Commission uses written findings to elucidate its reasoning for the purpose of
enabling judicial review under Code of Civil Procedure section 1094.5 and
Public Resources Code section 30801. 
(See also Cal. Code Regs., tit. 14, § 13057 [requiring staff
reports to the Commission contain “specific findings, including a statement of
facts, analysis, and legal conclusions as to whether the proposed development
conforms to the requirements of the Coastal Act”].)  Courts review the Commission’s findings to
determine whether the Commission’s decision complies with the Coastal Act.  (See Pub. Resources Code, § 30604,
subds. (a)–(c); Cal. Code Regs., tit. 14, § 13096,
subd. (a).)  In contrast to findings,
terms and conditions impose requirements on the permit “in order to ensure that
such development or action will be in accordance with the provisions of [the
Coastal Act].”  (Pub. Resources Code,
§ 30607.)  While findings, terms,
and conditions all relate to compliance with the Coastal Act, they differ in
that findings explain the reasoning underlying the Commission’s decision that a
given permit complies with the Coastal Act at the time the decision is
rendered, while terms and conditions operate to constrain or limit a specific
development project at the time of formation and into the future.

            On
January 24, 1985, at a public hearing, the Commission approved Ackerberg’s
coastal development permit, but the Commission decided not to approve a special
condition, proposed by Ackerberg, that would limit the required offer to
dedicate by requiring that the Commission attempt to open the nearby
county-owned easement, and if opened, the Ackerberg easement would terminate if
termination were possible under a not-yet-approved local coastal plan.  Rather, the Commission approved the permit
with revised findings reflecting the discussion during the hearing.  Both the face of the permit and the findings
attached to the offer to dedicate specifically included language that the
permit would not be approved without the offer to dedicate.  During the hearing, Commission staff advised
the commissioners that a preference for opening publicly owned easements “is a
policy question that . . . is appropriate for the [land use plan],
and could be incorporated . . . in the finding, as a policy that [the
Commission has] taken, as opposed to a condition.  And then . . . the message [gets]
across to the county . . . . 
[¶]  [T]hat would be a better way to get [the Commission’s] point
across.”  Just prior to the Commission’s
vote on the coastal development permit, Commission Chair Nutter discussed the
proposed amended findings.  Commissioner
McMurray responded and asked Chair Nutter whether the findings, like
Ackerberg’s proposed amendment, would dictate that “if the public access point
was improved, then no other access points within 500 feet are required,”
adding, “I think we should vote on that.” 
Chair Nutter clarified his proposed amended findings prior to moving for
a vote by responding, “No, what I am suggesting is, that what we have before
us, at this point in time, is a permit application.  We don’t have the county before us. We have
no ability —obviously, at this point — to open any accessway.  [¶] 
What we have got is a permit application, with some policy
considerations that we have been struggling with for a good long while, and I
think it is appropriate to reflect that in the findings.  [¶]  . . .  The main motion is per staff, with the
understanding that we will have revised findings for our consideration.”  Without further discussion, the Commission
then voted to approve the permit application with the revised findings.

We conclude that the findings did
not create an additional condition of the permit and thus did not require the
Commission to open the county easement before opening the Ackerberg
easement.  Rather, the findings reflected
the Commission’s reasoning process at the time it approved Ackerberg’s coastal
development permit.  The Commission
demonstrated its compliance with the Coastal Act in its findings by requiring
Ackerberg to dedicate the easement in exchange for the permit and clarified its
reasoning process in responding to Ackerberg’s proposed amendment by including
language that the termination might
be accomplished but only if the
recommendations drafted by the Los Angeles County staff working on completing
the Malibu Local Coastal Plan were approved (by both Los Angeles County and the
Commission) and enacted through a future local coastal plan.  While the 1986 land use plan contained a
provision that future offers to dedicate would not be required if the county
determined that adequate access existed nearby, it did not contain a provision
requiring that existing offers to dedicate be abandoned.  To the contrary, it provided that existing
offers to dedicate should be accepted and opened before new offers to dedicate
were required in the same area.  (See
Malibu Local Coastal Program Land Use Plan, supra,
[as of
Aug. 22, 2012].)

            The
findings merely discuss a possible future
policy and did not constitute a condition when the instrument was read as a
whole.  While findings referenced by
Ackerberg include language that “[t]he Commission believes as a matter of
policy, publically owned vertical accessways should be improved and opened to
the public before additional offers to dedicate vertical easements are opened,”
the findings go on to qualify this statement, noting that the Commission does
not implement policy changes through individual permit applications which apply
to a single property because broad policy decisions are implemented through
local land use plans which apply to the entire community.

            Ackerberg
references the commissioners’ discussion to support her argument that the
permit findings operated as conditions on her offer to dedicate the
easement.  This interpretation fails to
account for the entire record.  The statements
of the commissioners, when read together with the recorded offer to dedicate,
illuminate the meaning behind the policy decision espoused by the
Commission.  The commissioners
acknowledged that they could not force Los Angeles County to open its nearby
easement, but wanted to call attention to the need to open the easement.  The commissioners and Commission staff
discussed, in language almost identical to the language in the revised
findings, that the Commission would not enact broad policy changes in an
individual coastal development permit, but that broad policy changes were the
purview of a local coastal program. 
Thus, the Commission’s findings do not operate as conditions on
Ackerberg’s permit because the Commission did not adopt any broad policy change
at that time.

            Assuming
the Commission’s findings could be construed to mean that the Commission
guaranteed the future termination of Ackerberg’s easement, such a guarantee
would violate the Coastal Act.  The
Legislature sought to encourage local government regulation by enabling municipalities
to implement Coastal Act regulations through their own local coastal
programs.  “The Legislature left wide
discretion to local governments to formulate land use plans for the coastal
zone and it also left wide discretion to local governments to determine how to
implement certified [local coastal programs].” 
(Yost v. Thomas (1984) 36
Cal.3d 561, 574.)  A land use plan is one
component of a local coastal program.  A
local coastal program is tailored to the unique needs of the local community
and must “meet the requirements of, and implement the provisions and policies
of, [the Coastal Act] at the local level.” 
(§ 30108.6.)

            The
proposed land use plan that would have covered the Ackerberg property in 1986
was written and adopted by Los Angeles County, the local municipality
responsible for adopting a local coastal program at that time.  The Commission could only have guaranteed
that the future land use plan would contain policies enabling termination of
the vertical easement if the Commission used its review authority to reject any
local coastal program that did not enact the easement termination policy â€”
an action which would violate the Coastal Act. 
“‘[T]he Commission in approving or disapproving [a local coastal
program] does not create or originate any land use rules and regulations.  It can approve or disapprove but it >cannot itself draft any part of the coastal
plan.’”  (Yost, supra,> 36 Cal.3d at p. 572, italics
added.)  “Section 30500, subdivision (c)
provides, in relevant part:  ‘The precise
content of each local coastal program shall be determined by the local
government, consistent with Section 30501, in full consultation with the
Commission and with full public participation.’ 
Pursuant to section 30512, the Commission’s review of a land use plan is
limited to a determination as to whether the land use plan conforms to the
. . . Coastal Act [and], in making its review, section 30512.2,
subdivision (a) provides that ‘the commission is not authorized by any
provision of this division to diminish or abridge the authority of a local
government to adopt and establish, by ordinance, the precise content of its
land use plan.’”  (Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181,
1198.)  Accordingly, Ackerberg could not
have reasonably relied on the findings as a promise to open the county-owned
easement before opening the vertical easement on her property.

C.        Application of Local
Coastal Program

            Ackerberg
argues that the Commission and the trial court erred because they applied the
2002 policies to interpret both Ackerberg’s offer to dedicate and Ackerberg’s
coastal development permit.  Ackerberg
asserts that the 2002 policies do not expressly authorize their retroactive
application, and, therefore, they should not apply to the 1985 permit.  Ackerberg implies that the 2002 policies
should also not apply to the 1983 bulkhead permit.  For reasons we shall explain, we disagree.

The California Coastal Act of 1976
encourages local agencies to enact their own local coastal programs and to then
issue local coastal development permits. 
(§§ 30004, 30500.)  Land use
plans are one component of a local coastal program.  (§ 30108.6; see also § 30108.5.)  On December 11, 1986, the Commission
certified Los Angeles County’s land use plan for the unincorporated Malibu area
(portions of Malibu that were under the county’s jurisdiction because they had
not been incorporated by the City of Malibu) as a part of the county’s proposed
local coastal program.  The remainder of
the proposed program was never adopted. 
Instead, in 2002, after the Ackerberg property had been incorporated
into the City of Malibu, the city adopted a new local coastal program that
applied to the Ackerberg property.  The
2002 Malibu Local Coastal Program policies include standards for vertical
easement spacing and the policy of opening as many public accessways as
possible.  (See Malibu Local Coastal
Program Land Use Plan, supra,
[as of
Aug. 22, 2012].)

“‘[W]hen an instrument provides
that it shall be enforced according either to the law generally or to the terms
of a particular . . . statute, the provision must be interpreted as
meaning the law or the statute in the form in which it exists at the time of
such enforcement.’  [Citations.]”  (City
of Torrance v. Workers’ Comp. Appeals Bd. (1982) 32 Cal.3d 371,
379.)  The Coastal Act governs
enforcement of Ackerberg’s recorded offer to dedicate and the> accompanying coastal development
permit because both documents include language that they are subject to the
Coastal Act.  Further, both documents
directly reference and quote the Coastal Act extensively.  The permit included a standard condition,
labeled “interpretation,” which specified that “[a]ny questions of intent or
interpretation of any condition will be resolved by the Executive Director of
the Commission.”

In issuing the cease and desist
order, the Commission was enforcing the 2002 Malibu Local Coastal Program, the
law in effect at the time it issued the order. 
Under the Coastal Act, all new development in the coastal zone must be
authorized under a coastal development permit. 
(§ 30600, subd. (a).) 
When it issued the cease and desist order, the Commission found that
there were no coastal development permits issued for the development in the
Ackerberg easements, but the easements were nevertheless developed with “rock
riprap, a 9-ft high wall, a concrete slab and generator, and a fence, railing,
planter, light posts, and landscaping.” 
The Commission found that the development was not included in the 1983
permit, nor was it included in the 1985 permit. 
Finding that the development had been added without the necessary
coastal development permit(s), the Commission applied the 2002 Local Coastal
Program standards to its evaluation of the unpermitted
structures in the easement accessways. 
When development occurs in violation of the Coastal Act, the law
applicable to enforcement of the act is the law then in force.  Neither the law in effect at the time the
unpermitted development commences nor the law in effect at the time an offer to
dedicate an easement is recorded applies, even when the easement offer is for
the same property as the development.  In
sum, when the Commission issued the cease and desist order, it was acting as
required under the Coastal Act to accomplish the opening of an easement
accessway to the public.

            Ackerberg
relies on Strauss v. Horton (2009) 46
Cal.4th 364 (Strauss) for the
proposition that retroactive application of a statute requires either a clear
statement of retroactive intent or very clear extrinsic evidence of such
intent.  (See id. at p. 470.) 
Ackerberg’s reliance on Strauss
and similar cases is misplaced.  >Strauss addressed the retroactive
application of Proposition 8, a voter-approved measure that prohibited
same-sex marriage in California effective November 5, 2008.  (Strauss,
at p. 385.)  Interveners in >Strauss argued that California should
not recognize same-sex marriages that occurred prior to the enactment of
Proposition 8, reasoning that refusal to recognize same-sex marriages, as opposed
to revoking past marriage licenses, would not involve retroactive application
of Proposition 8.  (>Strauss, at pp. 471–472.)  The court held that “[w]ere Proposition 8 to
be applied to invalidate or to deny recognition to marriages performed prior to
November 5, 2008, rendering such marriages ineffective in the future, such
action would take away or impair vested rights acquired under the prior state
of the law and would constitute a retroactive application of the measure.”  (Strauss,
at p. 472.)  The court explained,
“‘[A] . . . retrospective law “‘is one which affects rights,
obligations, acts, transactions and conditions which are performed or exist
prior to the adoption of the statute.’” 
[Citations.]  . . .  “‘[E]very statute, which takes away or
impairs vested rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability, >in respect to transactions or considerations
already past, must be deemed retrospective.’”’”  (Id.
at pp. 471–472, italics added.)

            Ackerberg’s
analogy to Strauss relies on two
faulty assumptions.  First, >Strauss dealt with executed marital
“contracts”; the married, same-sex couples had accepted the state’s offer of
the right to marry, entered into a contractual relationship, and reasonably
relied on the state’s promise to honor their marriages.  (See Strauss,
supra, 46 Cal.4th at pp.
472–474.)  In contrast, Ackerberg’s offer
to dedicate a public easement was analogous to an option contract that the
Commission had explicitly accepted by recording an acceptance certificate.  Ackerberg’s offer to dedicate the easement
was irrevocable for 21 years and was recorded in exchange for the coastal
development permit for her home.  “‘An
irrevocable option is a contract,
made for consideration, to keep an offer open for a prescribed period’
[citation].”  (Erich v. Granoff (1980) 109 Cal.App.3d 920, 927–928; >City of Orange v. San Diego County Employees
Retirement Assn. (2002) 103 Cal.App.4th 45, 51–52.)  The Commission reasonably relied on Ackerberg’s
offer when it allowed Ackerberg to build a large beachfront home, thereby
impacting public coastal access.  Second, the argument assumes Ackerberg
had a vested right to have the offer of an easement terminated.  That assumption is incorrect.  Ackerberg’s vested rights were included in
the plain language of the 1983 and 1985 offers to dedicate; those rights were
limited to the right to quadruple the size of the existing home and add other
improvements to the property consistent with the approved plans in 1985 and to
maintain the 1983 bulkhead.  Two offers
to dedicate public access easements across the property were offered in
exchange for those rights, and the offers specified that they were to remain
irrevocable for 21 years. 
Ackerberg’s rights to maintain the development on her property, as
depicted in the plans submitted for the 1983 and 1985 coastal development
permits, were not impaired by the issuance of the cease and desist order.  The cease and desist order requires Ackerberg
to remove development that was added without the requisite permits in the
public accessways and to bring the property into compliance with its depiction
in the plans submitted for the 1983 and 1985 permits.  It follows that Ackerberg’s vested
rights â€” to build a larger home and to maintain the bulkhead â€” were
not affected by the cease and desist order.

            Additionally,
Ackerberg’s argument fails on its own terms. 
Even assuming the cease and desist order should be evaluated under
standards in place at either the time Ackerberg’s permit was originally
approved in January of 1985 or the offer to dedicate was recorded on
April 4, 1985, Ackerberg advocates applying the Los Angeles County land
use policies adopted in December 1986. 
Ackerberg attempts to justify the application of those standards, which were enacted nearly two years after the
1985 permit was approved and the offer to dedicate was recorded, by arguing
that she believed the standards adopted in December 1986 governed the permit
agreement and thus justifiably decided to “avoid challenging the Commission’s
actions in requiring the opening of the easement â€” a challenge that almost
certainly would have [succeeded as] . . . an unconstitutional taking
without compensation . . . .” 
But “[t]here cannot be written into the contract of the parties by
implication the provision that it shall be subject to the terms of statutes to
become effective at a future date.”  (>Loeb v. Christie Hotel Corp. (1936) 16
Cal.App.2d 299, 300–301.)  This argument
mirrors Ackerberg’s contention that the permit findings operate as conditions
and therefore runs into the same problems as her assertion that the 1985 permit
was intended to require opening the county easement before opening the
Ackerberg easement.  Both arguments fail
to account for the Commission’s limited authority under the Coastal Act (see §
30512.2, subd. (a)) and the need to interpret the permit and the offer to
dedicate reasonably according to the plain language of the documents (see >Fireman’s Fund Ins. Co. v. Superior Court (1997)
65 Cal.App.4th 1205, 1212–1213).  Section
30512.2, subdivision (a) provides: 
“The commission’s review of a land use plan shall be limited to its
administrative determination that the land use plan submitted by the local
government does, or does not, conform with the requirements of Chapter 3
(commencing with Section 30200).  In
making this review, the commission is not authorized by any provision of this
division to diminish or abridge the authority of a local government to adopt
and establish, by ordinance, the precise content of its land use plan.”

            Ackerberg
contends that she relied on the commissioners’ statements at the 1985 meeting,
which were reflected in the permit findings, to guarantee a future right to
terminate the easement.  We disagree
because Ackerberg’s reliance on a finding that would contradict the purpose of
mitigation measures under the Coastal Act would be unreasonable.  (See Feduniak
v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1369 [finding
property owners could not have reasonably believed that the Commission intended
to abandon an easement by failing to enforce it for 18 years].)  During the January 24, 1985> public hearing, the Commission
discussed the forthcoming local coastal program and the need for hearings and
findings related to the local coastal program before it could return to the
Commission for approval.  (See
§§ 30503, 30510.)  While the revised
findings for the Ackerberg coastal development permit referred to a >recommendation made by the Los Angeles
County land use planning staff, allowing a mere recommendation to govern the
interpretation of the coastal development permit here is not reasonable.  Staff recommendations serve to provide
background information to the public at public hearings and local elected officials
who must decide the contents of the proposed local coastal program prior to
submitting the proposed program to the Commission for its approval or
denial.  The Los Angeles County Board of
Supervisors, the local approving authority, did not approve the Malibu land use
policies until October 7, 1986. 
(See Malibu Local Coastal Program Land Use Plan, supra,
[as of
Aug. 22, 2012].)

            The correct
vehicle for implementing the access policies that Ackerberg sought would have
been through public participation in the local coastal program adoption
process.   Finally, as noted in the
permit, “the Commission found that but for the imposition of the
. . . condition [requiring an irrevocable offer to dedicate a
vertical public accessway easement], the proposed development could not be
found consistent with the public access policies of Section[s] 30210 through
30212 of the California Coastal Act of 1976 and that therefore in the absence
of such a condition, a permit could not have been granted.”

D.        Substantial Evidence
Supported the Cease and Desist Order

            Arkerberg’s
final argument in her opening brief is
captioned, “Questions Involving the Purportedly Unpermitted Development Are
Mere Pretexts for the Commission’s Core Goal of Opening the Easement.”  In that section Ackerberg states that “the
removal of this purportedly unpermitted development is not truly at issue here”
because “there is no reason to remove allegedly unpermitted development at all
unless the easement itself is opened.” 
But Ackerberg’s contention that the easement cannot be opened is based
on her arguments that we have already rejected.

Nevertheless, Ackerberg further
argues that the Commission’s finding that the development was unpermitted is
not supported by the record.  She devotes
nine lines of her opening brief to this argument, citing plans, photographs,
and a staff report which she claims proves her point.  We have examined those items in light of the
entire record and the statutory requirements under the Coastal Act and the
Conservancy Act, and we conclude that Ackerberg has failed to demonstrate that
the Commission’s findings were not supported by substantial evidence.

“‘Substantial evidence’ is evidence
of ponderable legal significance, evidence that is reasonable, credible and of
solid value.  [Citations.]”  (Roddenberry
v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)  “The ultimate test is whether it is
reasonable for a trier of fact to make the ruling in question in light of the
whole record.  [Citation.]”  (Id.
at p. 652.)  Development in the
coastal zone always requires a coastal development permit subject to the
requirements of the Coastal Act.  (See
§§ 30600, 30820; Cal. Code Regs., tit. 14, § 13052.)

Ackerberg forfeited the defense
that the development predated the Coastal Act by not seeking a vested rights
ruling under section 30608 of the Coastal Act. 
(See Cal. Code Regs., tit. 14, § 13200.)

Ackerberg further contends that the
Commission permitted the development in the vertical easement at the 1985
hearing, when Commission staff told Ackerberg she could “use” the easement
unless or until the easement was accepted and opened to the public.  In reaching its determination to issue the cease
and desist order, the Commission reviewed evidence from its enforcement staff
and Ackerberg and heard from both sides. 
Evidence submitted to the Commission and in the administrative record
included plans, photographs, and staff reports. 
The 1985 coastal development permit application describes the project as
“[d]emolition of existing single family dwelling . . . and concrete
block wall along street property line.” 
The plans associated with the 1985 permit depict the proposed and
existing structures on the property but do not depict the block wall at the
street line nor the generator Ackerberg placed on the easement.  The Commission could reasonably find, based
on the 1985 permit description and plans, that the wall and other development
in the easement were unpermitted. 
Similarly, the 1983 bulkhead permit plans include a depiction of a
“typical section” of the bulkhead in which an arrow connects the depiction of
riprap at the toe of the bulkead and the words “replace exist[ing] boulders
with rock and gravel wastemix, 3/4" to 12".”  The Commission required an offer to dedicate
a lateral easement as a condition of issuing the bulkhead permit; that lateral
easement area included the area on which Ackerberg placed the riprap according
to the survey completed by Access for All. 
Further, the Commission reviewed the plans, photographs, staff report,
and survey record and reasonably determined that the boulders Ackerberg placed
on the public accessway easement were not authorized by a coastal development
permit.  Finally, Ackerberg presented no
evidence establishing development in the easements met the permit requirements
under the Coastal Act.  Thus, the record
shows the cease and desist order was supported by substantial evidence.

E.        Res Judicata

            The trial
court determined that the Ackerberg Trust Settlement was not in the public
interest based on policy considerations. 
We agree.  “‘[R]es judicata will
not be applied “if injustice would result or if the public interest requires
that relitigation not be foreclosed.”’ 
[Citatio