SerraCanyon Property Owners Assn. v. Cal. Coastal Commission

Filed 6/25/07 Serra Canyon Property Owners Assn. v. Cal. Coastal Commission CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Paul G. Flynn, Judge. Affirmed as modified.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Tom Greene, Chief Assistant Attorney General, J. Matthew Rodriguez, Senior Assistant Attorney General, John A. Saurenman and Terry T. Fujimoto, Deputy Attorneys General, for Defendants and Appellants California Coastal Commission and Peter Douglas.

Gaines & Stacey, Sherman L. Stacey and Nanci S. Stacey for Plaintiff and Respondent Serra Canyon Property Owners Association.

Jenkins & Hogin and Christi Hogin for Defendants and Respondents City of Malibu and Victor Peterson.

The California Coastal Commission and its executive officer Peter Douglas (collectively, the Commission) appeal from a judgment entered in favor of Serra Canyon Property Owners Association (SCPOA) on a petition for writ of mandate.[1] In the peremptory writ of mandate, the trial court ordered the City of Malibu and its environment and community development director Victor Peterson (collectively, the City) to terminate the suspension of building permits the City had issued after it concluded SCPOAs proposed development project was exempt from the coastal development permitting requirements of the Coastal Act,[2]and the Malibu Local Coastal Program (Malibu LCP) the Commission had certified. The trial court also ordered the Commission to cease and desist from any interference with the permits approved by the [City] and to pay SCPOAs costs. This case arises out of a battle between the Commission and the City concerning which agency has permitting authority over some gates SCPOA erected at an already permitted gate house on Serra Road in Malibu, near state parkland which the public is permitted to access.

On appeal the Commission contends (1) it retained jurisdiction over SCPOAs gate project, (2) the project was not exempt from the coastal development permitting requirements of the Coastal Act and the Malibu LCP, (3) the mandate claim was not ripe for adjudication, and (4) the trial court lacked jurisdiction to enter judgment against the Commission because the Commission was not a party to the fourth cause of action in SCPOAs complaint, which was styled as a petition for writ of mandate. Although judgment also was entered against the City, the City has not appealed from the judgment and has submitted a respondents brief in this court advocating reinstatement of the Coastal Act exemption and building permits it issued for SCPOAs gate project but later rescinded in response to the Commissions request asserting it had jurisdiction over the project.

We agree with the Commissions last contention. SCPOA did not assert any allegations or seek any relief against the Commission in its petition for writ of mandate (the fourth cause of action in the complaint). It sought only the relief the trial court awarded against the City -- reinstatement of the exemption and the building permits. The Commission pointed this out in its opposition to SCPOAs motion for order granting peremptory writ of mandate, at oral argument, and in its objections to the proposed judgment. SCPOA never sought to amend its petition for writ of mandate to seek relief against the Commission or demonstrated in its motion that the Commission had a ministerial duty to cease and desist from interference with the City permits. Moreover, the trial court never adjudicated the declaratory relief causes of action which were directed at the Commission, and SCPOA dismissed these causes of action before judgment was entered.

For the foregoing reasons, we modify the judgment to delete any reference to the Commission, including the cease and desist order and the order requiring it to pay SCPOAs costs. As so modified, the judgment is affirmed. The Commission will not be heard to complain about its alleged jurisdiction over SCPOAs gate project.

FACTS AND PROCEEDINGS BELOW

In 1991, SCPOA built a gate house on Serra Road to shelter a security guard who would control access to the Serra Canyon community. In May 2003, after a lengthy struggle with the Commission and the Department of Parks and Recreation, the Commission approved SCPOAs application for an after-the-fact coastal development permit for the gate house. The permit was subject to several conditions the Commission imposed to ensure the public would be able to access state parkland abutting Serra Road.

In June 2003, SCPOA applied to the Commission for an amendment to its coastal development permit to add three swing-arm gates adjacent to the gate house, each 12 feet in length, to control vehicular traffic into and out of the Serra Canyon community. In a written response to the application, the Commission informed SCPOA the City, not the Commission, had jurisdiction over the proposed gate project under the Malibu LCP, and SCPOA would have to apply to the City for a coastal development permit. SCPOA applied to the City and the City told SCPOA to go back to the Commission to get an amendment to its coastal development permit.

In September 2004, SCPOA sent a letter to the City asking it to determine the gate project was exempt from the permitting requirements of the Coastal Act because the proposed gates would be directly attached to an already permitted structure (the gate house). Given the City had instructed SCPOA to go back to the Commission to get an amendment to its coastal development permit, in November 2004, SCPOA submitted another application to the Commission for the gate project, which the Commission filed by operation of law, as staff was unable to review the application within 30 days of its submittal . . . due to other work priorities. The Commission set the matter for a hearing and requested additional information about the project.

In June 2005, the City sent SCPOA a letter stating it had determined the gate project was exempt from coastal development permitting requirements under the Malibu LCP because the project will not involve the risk of adverse environmental impact, adversely affect public [sic], or involve a change in use contrary to the polices of the Local Coastal Program. The City approved the exemption and later approved building permits for the gate project. SCPOA notified the Commission it was withdrawing its application for an amendment to its coastal development permit. SCPOA erected the three swing-arm gates.

In August 2005, the Commission sent SCPOA a Notice of Violation of the California Coastal Act, asserting the gate project was not exempt from coastal development permitting requirements under the Malibu LCP because the gates were not directly attached to the gate house, and construction of the unpermitted gates on Serra Road constitutes new development which clearly changes the intensity of use of the structure resulting in potential adverse impacts to public access and the publics ability to access existing public hiking and equestrian trails on the subject site. The Commissions position on this issue was directly contrary to that asserted in response to SCPOAs first application for an amendment to its coastal development permit.

The Commission also sent a letter to the City requesting it rescind the exemption it had issued. On August 30, 2005 the City informed SCPOA, in response to the Commissions request, it was rescinding the exemption and suspending its approval of the building permits.

In October 2005, SCPOA filed a verified complaint for declaratory relief/petition for writ of mandate. On the caption page, SCPOA named the City and the Commission as defendants. In the first cause of action, SCPOA sought a declaration stating the gates installed are exempt from the permit requirements of the Malibu LCP and the Coastal Act. In the second cause of action, SCPOA sought a declaration stating the installation of gates at the Serra Road gatehouse is not within the jurisdiction of the Coastal Commission to approve or disapprove a permit and is within the jurisdiction of the City of Malibu. In the third cause of action, SCPOA sought a declaration stating the Coastal Commission is without authority to reserve any jurisdiction to itself, other than its appellate jurisdiction, after the certification of an LCP, including the Malibu LCP, and that the provisions of Malibu LCP 13.10.2 are unlawful and unenforceable.

The fourth cause of action was styled as a petition for writ of mandate under Code of Civil Procedure section 1084 et seq., and includes the following four allegations: (1) The City properly issued permits 05-1018 and 05-1019 for the gates because no coastal development permit was required from the Coastal Commission or the City as the gates are an exempt improvement to the gate house; (2) The City improperly rescinded CDPE 05-024 [the exemption] under demand from the Coastal Commission and suspended the effectiveness of the permits for the gates; (3) The City is under a mandatory duty to end the suspension of permits 05-1018 and 05-1019 and to restore permits 05-1018 and 05-1019 for the gates; and (4) SCPOA is entitled to a writ of mandate directed to Defendants Peterson and the City to terminate the suspension of permits 05-1018 and 05-1019 and to restore permits 05-1018 and 05-1019 for the gates.

In the prayer for relief in the complaint and petition for writ of mandate, SCPOA asked the trial court to issue a judgment including the three declarations sought in the declaratory relief causes of action and a peremptory writ of mandate directed to the City of Malibu to reinstate CDPE 05-024 [the exemption] and terminate the suspension of permits 05-1018 and 05-1019 for the gates at the Serra Road gatehouse.

SCPOA decided to proceed on the petition for writ of mandate. It filed a notice of motion and motion for order granting peremptory writ of mandate along with supporting declarations, exhibits and a memorandum of points and authorities. In the motion, SCPOA asked the trial court to issue a peremptory writ of mandate not only ordering the City to restore the exemption the City rescinded and to terminate suspension of the building permits the City issued, but also ordering the Commission to cease interference with [SCPOA]s permits for gates at the gate house in [sic] Serra Road, Malibu. SCPOA argued a writ of mandate applies to the Citys issuance of building permits and to its determination a project is exempt from coastal development permitting requirements, and the City was correct in its ministerial determination that the gates were an exempt improvement to an existing structure[3]under the Coastal Act and the Malibu LCP. SCPOA also argued, after the Commissions certification of the Malibu LCP, jurisdiction over this type of development project vested in the City; but even if the Commissions reservation of jurisdiction for itself as set forth in the Malibu LCP was valid, the Commission did not have jurisdiction over this particular project under the terms of that reserved jurisdiction. In the conclusion of the memorandum of points and authorities, SCPOA asserted a peremptory writ of mandate should issue ordering the City to do its ministerial duty and to order the Coastal Commission to stay out of it.[4]

The Commission submitted a written opposition to SCPOAs motion for order granting peremptory writ of mandate, and also submitted declarations and exhibits. In its opposition, the Commission argued (1) the petition for writ of mandate does not seek any relief from the Commission, (2) the matter is not ripe for adjudication because the Commission has not taken any formal action to assert jurisdiction over SCPOAs project, (3) the gate project is not exempt from the permitting requirements of the Coastal Act, and (4) the Commission has jurisdiction over the project.

The City submitted a brief in response to the petition for writ of mandate in which it stated it believes that the certified [Malibu] LCP vests in [the City] all permitting authority that the Coastal Act does not otherwise reserve for the Coastal Commission, but has deferred to the Commission with respect to its assertion of jurisdiction over [SCPOA]s application to install gates at the previously approved gatehouse. The City argued it had correctly determined the gate project was exempt from the coastal development permitting requirements under the Malibu LCP.

The trial court heard oral argument on SCPOAs motion. At the hearing, the Commission argued the merits of the matter, but also continued to assert its objection it was not a party to the petition for writ of mandate. The trial court granted the motion for a peremptory writ of mandate directing the City to restore the exemption it had rescinded and to terminate the suspension of SCPOAs building permits for the gate project, and ordering the Commission to cease interference with the building permits. Thereafter, SCPOA filed a request for dismissal without prejudice of the declaratory relief causes of action in its complaint.

The Commission filed objections to SCPOAs proposed judgment and peremptory writ of mandate, arguing the petition for writ of mandate was directed only at the City and did not seek any relief against the Commission. On April 12, 2006, the trial court overruled the objections and entered a judgment granting a peremptory writ of mandate ordering the City to restore the exemption and to terminate suspension of the building permits, and ordering the Commission to cease and desist from any interference with the permits approved by the [City] for gates erected by [SCPOA] at the gate house located in [sic] Serra Road, Malibu, California. Two days later the peremptory writ of mandate issued. The Commission filed a return stating it would not comply with the writ and intended to appeal from the judgment. The City filed a return stating it restored the coastal development permit exemption and terminated suspension of the building permits on May 12, 2006.

DISCUSSION

On the one hand, the Commission argues the trial court got the matter wrong substantively and contends it, not the City, had jurisdiction over SCPOAs gate project. On the other hand, the Commission argues it was not a party to the petition for writ of mandate and the trial court improperly entered judgment against it. The Commission cannot have it both ways. To the extent this court agrees with the Commission on its procedural argument, the Commission will not be heard to challenge the substantive merits of the judgment (i.e., who had permitting authority over the gate project).

SCPOA brought this action to force the City to reinstate the exemption and the building permits. In an attempt to get that result, SCPOA filed a complaint for declaratory relief seeking declarations stating the City, not the Commission, had jurisdiction over its gate project. It also brought a petition seeking a peremptory writ of mandate ordering the City to reinstate the exemption and the building permits (the fourth cause of action in the complaint). The petition for writ of mandate sought no relief against the Commission.

SCPOA decided to litigate its petition for writ of mandate and not its declaratory relief causes of action. For the first time in its motion for order granting peremptory writ of mandate, SCPOA asked the trial court to order the Commission to cease interference with its building permits for the gate project. But SCPOA included nothing in its motion demonstrating it was entitled to such relief on a petition for writ of mandate brought under Code of Civil Procedure section 1084 et seq. SCPOA asserted a writ of mandate is appropriate where a municipal officer is under a ministerial duty to act.[5] It argued the City had a ministerial duty to issue the building permits. It did not, however, allege, argue or demonstrate the Commission had a ministerial duty to cease interference with the building permits.[6]

The Commission repeatedly objected to the proceedings, arguing it was not a party to the petition for writ of mandate. SCPOA never sought to amend its petition to allege it was entitled to relief against the Commission by way of a peremptory writ of mandate. This is not even a case where we can say the pleading conforms to proof because, as discussed above, SCPOA never alleged, argued or demonstrated the Commission had a ministerial duty to cease interference with the building permits which could be compelled by order granting a peremptory writ of mandate.

Quoting Code of Civil Procedure section 580, subdivision (a), SCPOA states the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. But here, the petition for writ of mandate was not directed at the Commission and the allegations in the complaint for declaratory relief do not support SCPOAs entitlement to the cease and desist order the trial court granted.

SCPOA also argues joinder of the Commission as a party to the petition for writ of mandate was mandatory under Code of Civil Procedure section 389 because SCPOA would be subject to claims of inconsistent obligations to the City and to the Coastal Commission if the Coastal Commission were not a party. Not so. In the petition, SCPOA sought a peremptory writ of mandate ordering the City to reinstate the exemption and the building permits. The Commission has no authority to make such an exemption determination or issue City permits. Thus, SCPOA could be accorded complete relief within the meaning of section 389 without the Commission being joined as a party to the petition for writ of mandate and there are no inconsistent obligations arising out of the judgment. The trial court found the gate project was exempt from the coastal development permitting requirements and the City properly issued the exemption and the building permits. Thus, the court awarded SCPOA the relief it requested in the petition for writ of mandate. Should the Commission seek to interfere with the building permits although it is not clear how or why the Commission would do so once the judgment becomes final SCPOA could at that time seek an injunction preventing that conduct.

SCPOA also argues the Commission could have been joined as a party to the petition for writ of mandate under Code of Civil Procedure section 379 because the Commission claimed an interest in this controversy adverse to SCPOA. The Commission has never argued it was not party to the litigation, i.e., the declaratory relief causes of action. But the petition for writ of mandate was directed at the City and did not seek any relief against the Commission. SCPOA did not ask the trial court to rule on its declaratory relief causes of action and it dismissed those causes of action before the trial court entered judgment.

Based on the foregoing, we conclude the trial court improperly rendered judgment against the Commission on a petition for writ of mandate which was not directed at and did not seek any relief against the Commission. Accordingly, we will order the judgment modified to delete all references to the Commission, including the cease and desist order and the order requiring it to pay SCPOAs costs. Because no relief can be awarded against the Commission on the petition for writ of mandate, SCPOA certainly is not entitled to a cost award against the Commission on the petition for writ of mandate.[7]

Given the Commissions argument it was not a party to the petition for writ of mandate and the trial court did not have jurisdiction to enter judgment against it on that petition, the Commission will not be heard to complain about the merits of the portion of the judgment ordering the City to reinstate the exemption and the building permits. SCPOA and the City agree the trial court properly ordered the City to act. Thus, there is no controversy on appeal as to this portion of the judgment and this court has no cause to reach the merits and decide who had permitting authority over the gate project.

DISPOSITION

The judgment is modified to delete all references to the Coastal Commission, including the cease and desist order and the order requiring it to pay Serra Canyon Property Owners Associations costs. As so modified, the judgment is affirmed. Each party is to bear its own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] Code of Civil Procedure section 1084 et seq.

[2] Public Resources Code section 30000 et seq.

[3] Emphasis in original omitted.

[4] Italics added.

[5] Emphasis in original omitted.

[6] Code of Civil Procedure section 1085, subdivision (a) provides: A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person. This section may be employed to compel the performance of a duty which is purely ministerial in character. (State of California v. Superior Court (1974) 12 Cal.3d 237, 247.)

[7] Code of Civil Procedure section 1032, subdivision (b) (Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding).