Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS 104029. David P. Yaffe, Judge.
Gaines & Stacey, Sherman L. Stacey and Nanci S. Stacey for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, John A. Saurenman, Senior Assistant Attorney General, Christina Bull Arndt and G.R. Overton, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, Acting P. J.
Madalon Witter appeals from the judgment denying her petition for a writ of mandate challenging the California Coastal Commission’s (Commission) denial of two permit applications to adjust the boundaries of Witter’s property (Property) and for restoration of the Property. Witter contends the court erred in denying her requested relief because the Commission abused its discretion when it denied her applications as the Commission’s decisions were not supported by adequate findings and certain findings it made were not supported by substantial evidence. We affirm.
Application No. 4-05-150 (Application 150) sought a permit authorizing removal and restoration of unpermitted development on the Property. Application No. 4-05-151 (Application 151) sought authorization for lot line changes on the Property.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Common Facts
This case involves unpermitted development on an approximately 45-acre property located in the Malibu region of Los Angeles County, i.e., the Latigo Canyon area of the Santa Monica Mountains. The site was used primarily as a mobile home park. The unpermitted development consisted of mobile homes, trailers, other dwellings, graded areas, septic and sewage disposal sites, water facilities, lot line changes, roads, electric facilities, removal of major vegetation, roadways, and animal facilities/enclosures.
The acreage is the remainder of a total of 55 contiguous acres the Commission approved for subdivision into six parcels. In 1987, Douglas Richardson deeded the Property to Witter. The dispute between the Commission, Witter and Richardson began in 1992 when the Commission discovered massive unpermitted development on the Property, which the Commission attempted to correct through prior enforcement actions.
In 1995, the Commission filed an enforcement action under the California Coastal Act (Pub. Resources Code, § 30000 et seq.) seeking fines, penalties and an injunction to correct unpermitted development on the Property. Witter, Richardson and the Commission settled that action in 1998 (Settlement). The Settlement does not require appellant to address previously permitted development or development the Commission determined in 1997 to be vested.
Unless otherwise indicated, all statutory references are to the Public Resources Code.
In August 2005, appellant submitted two permit applications and an accompanying letter spelling out what actions she was seeking authority to do to meet the terms of the Settlement.
In addition to Coastal Act policies, in analyzing Witter’s permit applications, the Commission had to consider the additional obligations imposed by the Settlement. In return for the Commission’s dismissal without prejudice of its enforcement action, Witter and Richardson agreed to take remedial action on the Property. Generally, they agreed to file coastal development permit (CDP) applications aimed at restoring the property and legalizing other features on the Property. The applications, which were limited to “reasonably feasible” actions, were required to address the following features:
Existing mobile homes, trailers or other similar dwellings on the Property.
Graded pads to the extent reasonably feasible.
Elimination and restoration of any unpermitted septic or sewage disposal sites or systems to the extent reasonably feasible, except septic systems serving vested residence and dwellings for which after-the-fact permits were obtained.
The removal of water lines and systems for which there are no permits, except those water facilities supporting other permitted or vested development on the Property or water facilities for ranch use or fire suppression.
Reconfiguration of the defendants’ five parcels to conform to permits the Commission previously issued and defendants were to seek approval from all necessary authorities for lot line adjustments.
Existing roads on the Property.
Dwellings on each legal parcel in conformance with the Los Angeles County Land Use Plan (LUP) and Coastal Act, other than the vested residence.
Electrical service other than vested or permitted service.
Authorization for existing animal enclosures and shelters, i.e., stables, corrals, pens, etc. in existing locations or alternative locations or removal of all animal facilities.
Authorization for one water tank site per legal parcel consistent with the LUP, local government standards and the Coastal Act. Removal and restoration of all other water tank sites.
Restoration of all graded areas not specifically permitted or linked to a permitted or vested use by some form of vegetation.
II. Facts Applicable to The Restoration/Removal Permit Application
Commission staff initially prepared a report in January 2006 analyzing Witter’s proposal to address unpermitted development. Witter’s agents criticized the report and then met with Commission staff to discuss the project’s scope and nature. After that meeting, staff requested Witter submit a revised project description, addressing both the physical development and the lot line issues. After receiving a revised proposal, staff drafted a final report that the Commission adopted as its findings.
Staff analyzed the revised project for compliance with Coastal Act requirements including cumulative impacts, impacts on environmentally sensitive habitat areas (ESHA), effects on water quality, visual resource impacts, and compliance with the Settlement. Considering all those factors, staff concluded the project did not comply with the Coastal Act or the Settlement:
The number of unpermitted structures and roads and the amount of cleared and disturbed ground on the project site greatly exceeds the density and intensity of development allowed by the LUP, and is not consistent with the development standards required by the LUP in designated wildlife corridors. As discussed in detail above, while the applicant’s proposal contains some components, such as the removal of unpermitted dwellings and water lines, that are likely consistent with Section [30250(a)], the proposed project does not sufficiently address the totality of unpermitted development on the site, and its impacts on coastal resources. In addition, the proposed project does not include measures to adequately address the extensive impacts to ESHA, water quality, and public views that have resulted from the unpermitted development on the site. It is important to emphasize that the baseline for evaluating the proposed project is not the existing condition of the subject property, but its condition prior to the extensive unpermitted grading, vegetation clearance, construction, and placement of structures on the site. Given that the proposed project poorly defines the amount, location, and extent of development to be removed, and contains no viable proposal for restoration of the extensive graded and cleared areas on the site, approval of the proposed project would thus permit an undefined amount of unpermitted development on the site.
The staff comments continued by outlining alternative proposals that Witter could undertake that would remove all unpermitted structures and provide a revegetation plan with performance standards and a monitoring program to ensure successful restoration of native plants. Staff recommended denial of the application.
On May 3, 2006, a week before the public hearing on the applications, counsel for Witter sent a letter to the Commission commenting on the staff report. The letter raised a number of issues for the first time. Witter argued that unspecified structures in unspecified locations on the Property were exempt from coastal permit requirements.
Staff prepared an addendum to its report responding to the new material in the May 3 letter. The addendum pointed out that the differences between Witter’s earlier project description and the project described in the letter created further confusion and ambiguity on the eve of the public hearing as to what Witter was seeking to do on the Property.
According to the staff report, the project described in the May 3 letter differed significantly from the project described in the application. The letter appeared to seek to keep unpermitted dwellings and other features not specified in the application’s project description. For example, the revised application did not seek authorization for new water tank sites; but the May letter indicated Witter would keep two tank sites. After attacking the staff for trying to avoid its obligations under the Settlement, and while ignoring the express recommendations in the staff report, the May letter criticizes staff for not rewriting Witter’s application to address staff concerns.
III. Facts Applicable to The Lot Line Adjustment Application
The Settlement required reconfiguration of the illegal subdivisions to match the configuration the Commission had approved in 1978 and 1982. The Settlement also required Witter to obtain an approval in concept from Los Angeles County for the configuration proposed in her application.
Previously, the Commission had approved two separate subdivisions that resulted in the creation of six lots on the Property then owned by Richardson. Before Witter filed her lot line adjustment application, two of the six Commission-approved parcels had been sold to third parties as well as a fractional parcel that the Commission had not approved. According to the staff report, near the time or after the sales of the parcels, the remaining lots were reconfigured without obtaining coastal development permits resulting in up to nine unpermitted lots. Witter’s application for lot line adjustment sought to reconfigure the remaining illegally subdivided lots but did not restore the lot configurations to those previously approved by the Commission. Witter did not submit local approvals for her proposed reconfiguration as required in the Settlement.
In addition to violating her obligations under the Settlement, the Commission found the proposed lot line adjustments created impermissible development density on the Property. By proposing a four-lot configuration and not accounting for the fractional parcel transferred to a third party, Witter effectively increased the density and potential intensity of use of the remaining land which increased risk to water quality and degradation of visual resources. As an alternative to the proposal in Witter’s application, the staff report suggested a three-lot subdivision that would cure all the problems of the proposed adjustments. Witter did not accept the three-lot proposal.
On August 9, 2006, the Commission filed a new enforcement action in the superior court against Witter, alleging she had violated the Coastal Act and breached the Settlement.
After the Commission denied the permit applications, Witter filed a petition for writ of mandate in the superior court challenging the denial of her permit applications. The court denied the petition and entered judgment in favor of the Commission.
Witter filed a timely notice of appeal from the judgment.
DISCUSSION
I. Standard of Review
Appellant filed a petition for a writ of mandate pursuant to Code of Civil Procedure section 1094.5 in the superior court to review the Commission’s ruling on her permit applications. The court denied the petition. In essence, appellant contends the court erred because the Commission abused its discretion when it denied her permit applications.
“In reviewing the trial court’s determination, this court’s duty is to determine whether the Board’s decision was supported by the findings and the findings by substantial evidence or whether the Board abused its discretion by failing to proceed in the manner required by law. In making our determination, we examine all relevant evidence in the entire administrative record. We view the evidence in the light most favorable to the judgment, resolving all conflicts in the evidence and drawing all inferences in support of the judgment. Substantial evidence is defined as evidence of ponderable legal significance... reasonable in nature, credible, and of solid value[, and]... relevant evidence that a reasonable mind might accept as adequate to support a conclusion. [¶] Moreover, it is presumed that the Board regularly performed its duty. The burden is on appellant to prove an abuse of discretion by failing to proceed in the manner required by law or making a decision unsupported by substantial evidence.” (Citations and internal quotation marks omitted.) (Young v. Gannon (2002) 97 Cal.App.4th 209, 224-225.)
“A presumption exists that an administrative action was supported by substantial evidence. The burden is on the appellant to show there is no substantial evidence whatsoever to support the findings of the [administrative agency].” (Citation omitted.) (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1341.) Substantial evidence upon which an administrative decision may be based includes the opinion evidence of experts and “staff reports, statements made at the public hearing, and photographs.” (Coastal Southwest Dev. Corp. v. California Coastal Zone Conservation Com. (1976) 55 Cal.App.3d 525, 532; La Costa Beach Homeowners’ Assn. v. California Coastal Com. (2002) 101 Cal.App.4th 804, 818-819.)
“While a reviewing court must make certain an agency has adequately disclosed its reasoning process, ‘[Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515] reiterates the long established rule in California that administrative findings need not be as precise or formal as would be required of a court. Indeed, the Supreme Court there considered a planning commission’s summary of “factual data” to be agency findings.... Other examples of the judiciary’s willingness to focus on the substance rather than the form of administrative actions are legion. “As a practical matter, omissions in [administrative] findings may sometimes be filled by such relevant references as are available.” Thus, where reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision it has long been recognized that the decision should be upheld if the agency “in truth found those facts which as a matter of law are essential to sustain its... [decision].”’” (Citations omitted.) (Sierra Club v. California Coastal Com. (1993) 19 Cal.App.4th 547, 556.)
II. Lot Line Adjustments (Application 151)
A. Background
On July 7, 1978, the Commission approved CDP No. P-2-17-78-2706 (Permit 2706) authorizing the subdivision of approximately 15 acres into three parcels. On August 25, 1982, the Commission approved CDP No. 5-82-377 (Permit 377) authorizing the subdivision of approximately 40 acres into three parcels.
Appellant acknowledges that in 1984 and 1985, Richardson (appellant’s predecessor) obtained Los Angeles County approval to adjust the lot lines separating the parcels approved in Permits 2706 and 377. Some small portions of the 15 acre property were incorporated into parcels predominately on the 40 acre property and some small portions of the 40 acre property were incorporated into parcels predominately on the 15 acre property. The lot lines dividing the three parcels on the 40 acre parcel were moved. No changes were made to the lot lines of parcel 1 on parcel map 7155, and that lot was sold. A second lot (parcel 3 of parcel map 7155), which had a minor adjustment, was also sold.
Pursuant to the 1998 Settlement, Application 151 sought a permit to further adjust the lot lines dividing the remaining four parcels approved by the Commission in Permits 2707 and 377. Application 151 described the proposed development as “lot line adjustment per ‘agreement to compromise and settle disputed claims and mutual release of claims’, dated Oct. 23, 1998, section 4.1.2.5.” That provision of the Settlement required that appellant: “Reconfigure the five parcels owned by [Witter and Richardson] to conform with permits previously issued by the COMMISSION and seek approval from all necessary authorities for lot line adjustment to conform parcels to permitted legal descriptions as necessary.”
B. Jurisdiction
Appellant claims the adjustment of boundaries was beyond the jurisdiction of the Commission as such adjustment does not constitute a division of land in these circumstances and the Commission’s jurisdiction is limited to the regulation of development, which includes any: “change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act..., and any other division of land, including lot splits.” (§ 30106.) Respondent counters that appellant cannot raise this issue as she failed to exhaust her administrative remedies as she did not raise this claim before the Commission (she did raise it in her writ petition).
The Commission asserts appellant failed to exhaust her administrative remedies as to a number of claims (e.g., due process, water quality, scenic view, access road, animal facilities and the reasonably feasible requirement) because she did not raise them before the Commission either at the hearing or in writing.
In order to exhaust administrative remedies, a party must obtain a final decision from the highest level of the administrative agency before issues can be presented to a court. (McAllister v. County of Monterery (2007) 147 Cal.App.4th 253, 284-285.) The Commission does not claim its decision was not the final decision. Unlike not asserting an exemption or an affirmative defense (see e.g., Whaler’s Village Club v. California Coastal Com. (1985) 173 Cal.App.3d 240, 252; Bohn v. Watson (1954) 130 Cal.App.2d 24, 37), none of the cases cited by the Commission stand for the proposition it puts forward that a challenge to factual findings must be presented to the administrative body before the findings can be attacked in court.
Although jurisdiction may be considered for the first time on appeal (Gilliland v. Medical Board (2001) 89 Cal.App.4th 208, 219), we conclude appellant is estopped from making this argument. (See Mt. Holyhoke Homes, LP v. California Coastal Com. (2008) 167 Cal.App.4th 830, 841 [When “‘the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court’s powers as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. Whether he shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy.’” (Citations omitted.)].)
These principles are equally applicable to the jurisdiction of an administrative agency. (See Mt. Holyhoke Homes, LP v. California Coastal Com., supra, 167 Cal.App.4th at p. 840, fn. 6.) In La Fe, Inc. v. County of Los Angeles (1999) 73 Cal.App.4th 231, 240, the court determined “[a] lot line change constitutes a ‘division of land’” under section 30106. Because appellant is complaining her proposed boundary adjustments did not change the density or intensity of her property, she is basically asserting the Commission acted in excess of its jurisdiction; such a claim is subject to the doctrine of estoppel. (See California Coastal Com. v. Tahmassebi (1998) 69 Cal.App.4th 255, 259-260.)
In the case at bar, throughout her interactions with the Commission, commencing as early as 1992, appellant never challenged the Commission’s authority to address lot line adjustments. In the Settlement, appellant agreed to seek lot line adjustments to return her remaining parcels to the configuration last approved by the Commission, and then pursuant to the Settlement, appellant filed Application 151 with the Commission for lot line adjustments. During the Commission’s review of her application, appellant presented many written arguments and offered testimony at the public hearing, but she never challenged the Commission’s power and authority to regulate lot line adjustments.
C. Denial of Boundary Adjustments
Appellant notes that the Commission made numerous findings as to how her proposed adjusted boundaries were not consistent with certain sections of the Public Resources Code and that the boundaries previously approved by the Commission were subject to the same objections. Appellant then reasons that unless her requested configuration differed in a material respect from the original configuration, the Commission was bound by its prior findings and had no authority to deny the new boundaries.
In its tentative ruling regarding Application 151, the superior court noted the briefing and administrative record were confusing with regard to this application as appellant had made the application on one ground (pursuant to the Settlement), but had abandoned that ground and then contended the Commission had no jurisdiction over the proposed lot line adjustments because they had no effect on the density or intensity of use of the land. The court determined that because appellant had submitted the permit application pursuant to the Settlement, she was bound by the Settlement terms, which required her to return the boundaries to those originally approved by the Commission. Though not bound by the superior court’s ruling, we find the court’s reasoning to be persuasive. Appellant presents no argument that her proposed boundary adjustments conform the boundaries to those previously approved by the Commission and a comparison of the boundary illustrations on exhibits A (original approved configuration) and C (Witter’s requested configuration) attached to appellant’s verified writ petition shows that they do not. Appellant conceded as much below.
Accordingly, the Commission did not abuse its discretion when it denied Application 151. Given our determination, the Commission’s findings about the number of parcels attacked by appellant are irrelevant.
III. Removal and Restoration (Application 150)
Appellant contends the Commission abused its discretion when it denied Application 150 in that certain findings were not supported by substantial evidence. In addition, appellant asserts denial of the permit was not supported by adequate findings.
A. Substantial evidence supports the finding of an ESHA on the Property.
The Commission found an ESHA exists on the Property. Appellant argues there is no substantial evidence supporting this finding because in a prior (1982) action, the Commission found the 40 acre parcel did not contain an ESHA and there was no undeveloped area, there was no evidence the Property was in a wildlife corridor, the 2002 memo from Dr. John Dixon was general and made no reference to her property, and although Dixon’s 2005 memo says the Property might qualify as an ESHA, it shows the Property did not meet the test set forth in Dixon’s 2003 memo.
The Coastal Act defines an ESHA as “any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.” (§ 30107.5.)
In 1982, the Commission found “[a]s a result, approval of this application [for a boundary change] would not represent commitment of a new, environmental sensitive area.” Thus, in essence, the Commission found the proposed boundary change by itself could not have an adverse impact on the ESHA, a finding that implies there was an ESHA in the area. In any case, the Commission has an on going duty to protect ESHAs whenever they are discovered. (§ 30240; LT-WR, L.L.C. v. California Coastal Com. (2007) 152 Cal.App.4th 770, 792-793; Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 506-508.)
The finding of an ESHA was partly based on Dr. Dixon’s memorandum discussing the existence of ESHA in the area of the Santa Monica Mountains where the Property is located and aerial photographs. In addition, on August 22, 2005, Dr. Dixon personally visually inspected the Property and found an ESHA existed throughout the Property in areas that remained undisturbed. At the hearing, the district director noted Dr. Dixon had visited the site and “confirmed the site and oak woodland habitat on site is an environmentally sensitive habitat.” On her application form, appellant checked the box indicating her proposed development was in or near “[s]ensitive habitat areas.”
The report states the Property was in a wildlife corridor as reflected in Santa Monica’s LUP. Although the LUP was not attached to the report, appellant does not claim the Property is not in a wildlife corridor, and she adduced no evidence demonstrating the Property was not in a wildlife corridor.
B. Substantial evidence supports the finding water quality on the Property would be impacted.
The staff report stated a geological survey map showed there was an intermittent blue-line stream on the Property. Appellant claims no evidence supports that finding because no map was attached to the report. Moreover, appellant asserts that even if there was a stream, there was no evidence the present condition of the Property had caused any deterioration of the stream and that it was not logical that removal of the trailers and other items would have an adverse affect on the stream.
Even though the geological map was not attached, again appellant does not claim there is no stream nor did she adduce evidence demonstrating there was no stream. In addition, a letter from Heal the Bay, a non-profit environmental group supporting denial of appellant’s applications, stated Heal the Bay had “conducted detailed stream habitat mapping surveys of the Santa Monica Mountains” and their mapping indicated “that unpermitted structures and grading on this property are present within two intermittent streams. This development has damaged riparian habitat on the property and has likely degraded the water quality in these streams.”
The Commission’s obligation was to regard the Property as undeveloped except for lawful development, which in this case was the areas determined to be vested. (LT-WR, L.L.C. v. California Coastal Com., supra, 152 Cal.App.4th at p. 797.) In 1997, the Commission determined the only lawful (vested) development on the Property was: a private domestic water well on one parcel, one single family home which had been permitted in1941, one storage structure permitted in 1952, and a garage on another parcel.
The Commission stated it was concerned the animal enclosures or septic tanks might overflow and cause pollution to wash down into the stream and several of the mobile homes discharged polluted water directly on ground and not into a septic system. The report noted that vegetation removal and other unpermitted uses could cause erosion because there was no longer any brush or underbrush to slow surface water flow, preventing runoff from being absorbed into the ground, resulting in increased pollution and sedimentation in the streams. These concerns are a matter of common sense.
Thus, even though the report was stated in terms of potential problems, the Commission was fulfilling its obligation to protect water quality.
C. Substantial evidence supports the finding visual resources on the Property would be impacted.
Appellant states there was no evidence her use of the Property was inconsistent with any views or that the site was visible from a public viewpoint and the aerial photographs were insufficient to show an interference with view. On her application form, appellant checked the box indicating her proposed development was visible from “[p]ark, beach or recreation area.”
The Commission report found: “The project site is visible from various public viewing points, including along the Backbone Trail, that afford scenic vistas of the relatively undisturbed natural area. The scenic nature of the area is reflected in the certified Malibu-Santa Monica Mountains Land Use Plan (LUP), which designates several ridgelines in the area, including the Castro Crest and a lower ridgeline that crosses the northern portion of the site, as scenic ridgelines.”
The report indicated there was massive visual degradation on the Property consisting of unpermitted grading; removal of major vegetation; at least 23 trailer pads; at least three single family homes; four areas with stables, barns, and pens; two concrete structures; a garage; storage sheds; an outhouse; a yurt; sheds attached to trailers; pipes; abandoned vehicles, including cars, boats, trucks and buses; tents; trash; construction materials and equipment; and water wells and tanks. Those conditions were visible from various viewing areas.
Section 30251, which provides for the protection of scenic and visual qualities, is not limited to areas on the coast. (Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1200.)
D. Substantial evidence supports the Commission’s rejection of appellant’s reversion plan.
1. Retention of unpermitted development
The Commission found that the extent of the area which should be allowed to remain without restoration was limited to 10,000 square feet on any parcel. Appellant argues the finding that she sought to retain too much development was not supported by substantial evidence because the findings would mean only about two percent of her Property could be used (as her parcels average 11 acres) and this finding was based on the faulty finding the Property was in a wildlife corridor, which was not supported by substantial evidence, meaning the 10,000 square foot limit could not be applied.
Pursuant to the Settlement, appellant was to obtain permits to legalize or remediate/restore all the items listed in paragraph 4.1.1. However, appellant’s application only sought a permit to remove or restore some of the items on the list. The Commission found appellant was unclear about what she sought to retain, restore or remove, stating in part:
For instance, it is clear that the applicant requests approval for removal of all (approximately 25) unpermitted mobile homes, trailers and similar dwellings, and removal of any unpermitted water lines and systems. However, it is unclear whether the applicant proposes to remove the remainder of development on site. Non-habitable structures, such as the various sheds, storage containers, lean-tos, construction materials and equipment, vehicles, fences, and trash are not addressed. In addition, the proposed project description states the applicant does not seek authorization for any existing animal facilities or new water tank sites, but does not indicate whether the applicant proposes to remove such facilities.
Appellant later agreed to remove all animal facilities.
The Commission found the plan did not show the location of some of the existing unpermitted items. The Commission determined the exact nature of the work appellant proposed to do was unclear. In an addendum report, staff compared the original project with the revised project and the project described in the May 3 letter and pointed out inconsistencies. The obvious intent of the Settlement was that no unpermitted development would remain on the Property. Appellant has not demonstrated she addressed all the unpermitted development in her application.
2. Revegetation
Appellant’s plan for revegetation was to wait for vegetation to grow back naturally in the denuded areas. The Commission denied appellant’s revegetation plan because it did not restore the topography to the maximum extent possible. Appellant asserts the finding her method of revegetation was inadequate was not supported by substantial evidence because the Settlement stated restoration could be accomplished “by some form of vegetation,” and the intent of that provision was that regrading was not required. In addition, appellant claims the only evidence on the subject were her letters from David Carroll, a biological consultant for environmental planning, indicating the problem could be solved by removing the equipment and allowing the area to revegetate naturally.
Appellant notes the Commission made several factual findings supporting its reasons as to why Carroll’s recommendation was inadequate and claims nothing in the record supports those findings and complains there is no evidence supporting the requirement for removal of non-native vegetation. Appellant further argues that even if there was some non-native vegetation, there was no evidence reestablishing native vegetation by natural propagation would not be feasible.
The Settlement required: “Restoration to the extent reasonably feasible of all graded areas not specifically permitted or linked to a permitted or vested use by some form of vegetation.” Restoration is defined as “a bringing back to or putting back into a former position or condition.” (Webster’s 3d New Intern. Dict. (2002) p. 1936, col. 2.) As noted by the superior court, “It is unlikely that such agreement would have been made by the Commission if Witter had disclosed that she intended to do nothing to restore said areas except to let nature take its course.”
Thus, the Settlement required appellant to do more than wait for vegetation to grow back on its own unless she could prove it was not reasonably feasible to do so. Moreover, appellant’s plan did not identify which areas would be revegetated by natural growth or how long the natural growth would take to revegetate the areas. It is apparent from the letter of appellant’s expert that revegetation would take years, leaving the land unprotected.
3. Rewriting the plan
Appellant asserts the Commission abused its discretion by not imposing special conditions on her revegetation plan. Appellant seems to suggest the Commission should have written the plan for her even though she also implies she would not have to agree to such a plan in advance as that would mean she must give up her right to a hearing on the plan she believed to be feasible. The Commission found it could not completely redesign the restoration plan. The Commission has no obligation to do appellant’s work for her. (LT-WR, L.L.C. v. California Coastal Com., supra, 152 Cal.App.4th at p. 801 [“[T]he Commission is not required to redesign an applicant’s project to make it acceptable.”].) In addition, besides not knowing what resources appellant has, her claim she would not have to agree to such a plan explains why the Commission should not have to engage in an effort in futility.
E. Findings support the Commission’s decisions.
1. Inadequate findings
Even though appellant sought a permit pursuant to the Settlement, which required her to address all the unpermitted development on the Property, appellant argues the denial of her application was not supported by adequate findings to the extent it sought a permit for many of the elements of the Settlement. Appellant notes the application sought a permit to address the elements which were the principal thrust of the Commission’s efforts to force changes to the Property, i.e., removal of all trailers and the waterlines, septic systems and electrical wires associated with the trailers; removal of all animal facilities, and abandonment of roads serving as access to the sites where trailers were removed. Appellant notes the Commission found removal of unpermitted dwellings and waterlines was likely consistent with ESHA protection policies of the Coastal Act.
Appellant seems to suggest the Commission should have granted her a partial permit. Appellant cites no authority nor presents any argument as to why the Commission should engage in piecemeal action, especially as she had already agreed to what she was going to do.
2. Reasonably feasible alternative
The Commission found “there are feasible alternatives to the proposed project that would substantially reduce adverse effects on ESHA.” Appellant claims the Commission’s denial of this permit was not supported by the evidence as the Commission did not make a finding the alternative was reasonable feasible. Appellant cites no statute requiring the Commission to make that finding. A finding the feasible alternative was reasonable can be implied.
Even if some finding was not supported by substantial evidence, appellant has not shown the Commission abused its discretion when it denied Application 150 as the denial was based on several failings of appellant’s plan for restoration. As noted by the superior court, the application “did not delineate exactly what Witter would do to restore the property or when she would do it. Even those commitments that appeared to be unequivocal in the application itself were qualified by her counsel in his argument before the Commission.”
IV. Due Process
Appellant contends she was denied due process as the Commission failed to provide her with a fair hearing. Due process requires reasonable notice and a reasonable opportunity to be heard. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1445.) Whether a hearing was fundamentally fair is a question of law. (Id., at p. 1443.)
Appellant argues the hearing was unfair because of the size of the record, her two applications were consolidated for one hearing, no continuance was possible because the time under the permit streamlining act had run out, and the hearing was not a meaningful evaluation. Appellant also complains the Commission does not use hearing officers to conduct an evidentiary hearing and the commissioners are otherwise employed and receive only limited costs.
At the hearing, appellant asked for an hour to make her presentation. Appellant was given 15 minutes to make her presentation. The chairperson pointed out appellant’s counsel had a long history of appearing before the Commission and the back of the speaker slip indicated the customary practice was to provide 15 minutes. At the time appellant made her request, the Commission had been holding hearings for 10 hours. Appellant’s counsel, who had previously waived any time limits for Commission action on the applications, did not object to the time limit or request a continuance. Appellant had submitted extensive written material to the Commission including evidentiary material and argument.
In Reed v. California Coastal Zone Conservation Com. (1975) 55 Cal.App.3d 889, 895-896, the court concluded a 10 minute hearing was a fair hearing noting that counsel had not objected to the time limitation or claimed it was insufficient in which to present his case and that applicants were allowed to submit any supplemental written material they desired. As noted, in Reed, “Given the caseload of the commission, it is necessary and inevitable that such reasonable time limitations be placed on applicants.” (Id., at p. 896.) Thus, the Commission provided appellant with a fair hearing.
DISPOSITION
The judgment is affirmed. The Commission is awarded costs on appeal.
We concur: ZELON, J., JACKSON, J.