Opinion
A100063. A100656.
10-30-2003
KENT HARVEY, Petitioner and Appellant, v. CALIFORNIA COASTAL COMMISSION, et al., Respondents.
I. INTRODUCTION
Petitioner and appellant Kent Harvey (Harvey) opposed the approval of a coastal development permit sought by real parties in interest John and Astrid Anderson (the Andersons). Following unsuccessful administrative appeals of the permits approval, Harvey sought judicial review by petition for administrative mandate, and now appeals the trial courts judgment denying his petition. We affirm.
II. BACKGROUND
This case concerns a new development subject to the Coastal Act. (Pub. Resources Code, § 30000 et seq.) The subject property, belonging to the Andersons, is located in an unincorporated area of San Mateo County near Half Moon Bay. That area lies within a state designated scenic area, the Cabrillo Highway Scenic Corridor, which in turns lies within the California coastal zone. (See §§ 30103, 30116, subd. (c); Sts. & Hy. Code, § 263.2, subd. (e).)
Further statutory references are to the Public Resources Code unless otherwise designated.
The Coastal Act is intended to protect the natural and scenic resources of the coastal zone. (§ 30001.) One means of protection is the implementation of special policies regulating development. (§ 30250 et seq.) To develop property within the coastal zone, it is generally necessary to obtain a coastal development permit in addition to any other applicable permits. (§ 30600, subd. (a); see § 30106.) After the Coastal Commission approved San Mateo Countys local coastal plan (LCP) in 1980, the county assumed initial jurisdiction over implementation of the Coastal Act on a local level, including the approval of coastal development permits. (See § 30500 et seq.; see also §§ 30108.6, 30519, subd. (a); San Mateo County Zoning Regulations, §§ 6328.3, subd. (u), 6328.4; San Mateo LCP, Policy 8.29.)
Harvey and the Andersons own adjoining parcels of land. On the Andersons parcel, a previous owner had, in 1980, constructed a foundation for a residential building, as well as a graded driveway from the access road to the site. On June 3, 1999, the Andersons applied for the necessary permits to build a residence on this existing foundation (the foundation site). Respondent San Mateo County Planning Commission (the Commission) scheduled a public hearing on the application for February 9, 2000. In a letter to the Commission dated February 6, 2000, Harvey expressed a number of concerns about the project, including the location of the residence at the foundation site, which Harvey contended would diminish the privacy and seclusion of his own residence. In a report dated February 9, 2000, Commission staff recommended approval of the permits to build on the foundation site, subject to several conditions which included height restrictions, exterior coloration restrictions, and planting to screen the buildings visibility from the Cabrillo Highway.
The Commission continued the hearing to gather more information, chiefly concerning the possibility of relocating the proposed residence either where it could be clustered with other existing structures (the valley site), or at the site of an old corral (the corral site) where it would be more sheltered from public view.
The Andersons retained a geotechnical consultant and submitted his report, dated March 27, 2000, to the Commission. This report concluded that the foundation site was preferable to both the valley and the corral sites, because the foundation site had the best combination of geotechnical features and construction at that site would involve the least amount of grading and landform alteration. On May 10, the Commission conducted a field trip to inspect the Andersons property in preparation for the continued hearing.
For example, the soil and bedrock at the foundation site were more stable, and the topography there was better both for drainage of surface water and for placement of the leach fields of the proposed septic system.
A Commission staff report dated July 26, 2000, discussed both the geotechnical report and the results of the field trip. Staff determined that a structure on the foundation site would be visible from the Cabrillo Highway. They recommended, therefore, approval of permits to build on the corral site because, although its geotechnical features were not as suitable for construction as those at the foundation site, they were acceptable, and a structure on the corral site would be completely screened from public view.
Attachments to this report included the geotechnical report submitted by the Andersons as well as the staffs February 9, 2000 report.
After a hearing on July 26, 2000, the Commission adopted, with specified modifications, the findings and conditions for approval set out in the staff report dated February 9, 2000. That is, the Commission approved permits for building the residence on the foundation site. Two of the modifications addressed the visibility of the structure to the public. It imposed a height restriction and required submission of a landscape plan for plants that at maturity would screen any view of the structure from the Cabrillo Highway. It also required the Andersons to post security to insure installation and maintenance of the landscaping screen.
Harvey appealed this decision to respondent San Mateo County Board of Supervisors (the Board). One of his grounds for appeal was that a structure on the foundation site would violate LCP Policy 8.5, which requires, generally, that a new structure on a parcel within the coastal zone be placed on a site within that parcel that is least visible to public view. Following a hearing on October 17, 2000, the Board denied the appeal and adopted, with some modification, the Commissions findings and conditions of approval.
Under the county zoning ordinance implementing the Coastal Act, an application for a coastal development permit of this type is determined after public hearing by the Commission, the decision of which is appealable to the Board. (San Mateo County Zoning Regulations, §§ 6328.9, subd. (d), 6328.10, subd. (a)(2), 6328.16, subd. (a).) The Boards decision, as the final action of local government, is appealable to the Coastal Commission. (§§ 30603, 30625; see also San Mateo County Zoning Regulations, § 6328.16, subd. (b).)
Harvey appealed the Boards decision to the Coastal Commission. His ground for appeal, among others, was again that the coastal development permit approved by the Commission did not comply with LCP Policy 8.5. (See § 30603, subd. (b)(1).) At a public hearing held March 14, 2001, the Coastal Commission denied the appeal as one that raised no substantial issues requiring full review. (See § 30625, subd. (b)(2).)
Harvey filed a petition for administrative mandate on May 11, 2001. (§ 30801.) He sought a writ directing the Commission and the Board to set aside their approval of the Andersons application to build on the foundation site. He also sought a writ directing the Coastal Commission to set aside its denial of Harveys appeal and hold a full hearing on the merits. (See Cal. Code Regs., tit. 14, § 13321 [Coastal Commission must conduct de novo consideration of application unless it determines that "no substantial issue exists" with respect to the grounds on which the appeal has been filed].) On July 1, 2002, the trial court issued a statement of decision denying Harveys petition. Judgment was entered August 29, 2002, and this appeal followed.
Harvey filed an initial notice of appeal on August 29, 2002, from the July 1, 2002, statement of decision. (Case No. A100063.) Although this notice was possibly filed before the entry of judgment that same day, it was filed after the rendition of judgment and would normally be construed to be properly taken from the judgment once entered. (See Moore v. Morhar (1977) 65 Cal.App.3d 896, 900, fn. 2.) Harvey nevertheless filed a second notice of appeal on October 29, 2002. (Case No. A101656.) This court, on Harveys motion, ordered the appeals consolidated on November 25, 2002.
III. DISCUSSION
A. Standard of Review
The decision of the Commission does not implicate a fundamental vested right, and, accordingly, the more deferential standard of review under Code of Civil Procedure section 1094.5 applies. Unless an agency has exceeded its jurisdiction or denied a fair hearing, a trial court may issue a writ of administrative mandate only if it finds the agencys decision to be a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of discretion may be established by showing that an agencys findings are not supported by substantial evidence in the light of the whole record, or that these findings do not support its decision. (Code Civ. Proc., § 1094.5, subd. (b), (c).)
As Harvey notes, it is proper to review the decision of the countys Commission, rather than that of the Coastal Commission, because the Coastal Commission declined to review Harveys appeal pursuant to section 30625, subdivision (b)(2). (See Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52, 72.)
Our review is identical with that of the trial court. We determine whether the findings of the Commission are based on substantial evidence in light of the entire administrative record, and whether the findings support its decision. Appellant has the burden of showing there is no substantial evidence whatsoever to support the findings. (Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1212.) We may reverse the decision of the Commission only if no reasonable person could have reached that decision based on the evidence before it. (La Costa Beach Homeowners Assn. v. California Coastal Com. (2002) 101 Cal.App.4th 804, 814.)
B. The Commission Decision Is Supported by Substantial Evidence
Harvey contends there is no substantial evidence to support the Commissions formal finding that the foundation site conformed with the policies of the LCP. He argues that it was error to approve a coastal development permit allowing use of that site, because undisputed evidence showed that the alternate corral site is less visible to public view and use of the foundation site therefore violates LCP Policy 8.5. The record, according to Harvey, fails to show that the Commission considered other evidence or competing LCP policies. In particular, he contends the record does not show that the Commission engaged in any balancing of LCP Policy 8.5 with LCP Policy 8.17.
LCP Policies 8.5 and 8.17 are both part of the Visual Resources Component of the LCP. (See LCP Policy 8.1 et seq.; San Mateo County Zoning Regulations, § 6328.27.) LCP Policy 8.5(a) states in relevant part that the county will "[r]equire that new development be located on a portion of a parcel where the development (1) is least visible from State and County Scenic Roads, (2) is least likely to significantly impact views from public viewpoints, and (3) is consistent with all other LCP requirements, best preserves the visual and open space qualities of the parcel overall. Where conflicts in complying with this requirement occur, [the county will] resolve them in a manner which on balance most protects significant coastal resources on the parcel, consistent with Coastal Act Section 30007.5 . . . ."
We take judicial notice of the regulations set out in the countys zoning ordinance. (See Evid. Code, §§ 452, subd. (b), 459; Longshore v. County of Ventura (1979) 25 Cal.3d 14, 24.)
LCP Policy 8.17(a) provides that the county will "[r]equire that development be located and designed to conform with, rather than change landforms. Minimize the alteration of landforms as a consequence of grading, cutting, excavating, filling or other development."
Both policies implement section 30251 of the Coastal Act, which provides that "[t]he scenic and visual qualities of coastal areas shall be considered and protected as a resource of public importance. Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance visual quality in visually degraded areas. New development in highly scenic areas such as those designated in the California Coastline Preservation and Recreation Plan prepared by the Department of Parks and Recreation and by local government shall be subordinate to the character of its setting." (See also § 30200, subd. (a).)
Section 30007.5, to which LCP Policy 8.5 refers, provides that "conflicts may occur between one or more policies of the [act]. The Legislature therefore declares that . . . such conflicts be resolved in a manner which on balance is the most protective of significant coastal resources. In this context, the Legislature declares that broader policies which, for example, serve to concentrate development in close proximity to urban and employment centers may be more protective, overall, than specific wildlife habitat and other similar resource policies." (See also § 30200, subd. (b).) Because LCP Policies 8.5 and 8.17 both derive from broad policy of section 30251, they clearly have equal significance for purposes of section 30007.5.
Harvey asserts that the lack of substantial evidence in the record is due in large part to a gap in the audio-tape of the July 26, 2000, Commission hearing. He argues that the transcript of that tape shows only the beginning of a discussion by the Commission concerning the visibility to public view of a building at the foundation site, which is interrupted and followed abruptly by the end of the Commissions discussion relating to its conditions for approving use of the foundation site. The remaining evidence in the record, Harvey claims, is insufficient "to bridge that gap" and show the factual basis for the Commissions decision not to approve use of the corral site, as recommended by Commission staff in its report of July 26, 2000, but rather to approve use of the corral site by adopting the findings set out in the staffs prior report of February 9, 2000. In his view, the incomplete record of the Commissions initial decision requires this court to remand for a rehearing.
It is true that Harvey is entitled to have the entire administrative record reviewed. (See Chavez v. Civil Service Com. (1978) 86 Cal.App.3d 324, 332.) When a portion of the administrative record is missing, however, a rehearing is necessary only when the missing portion cannot be reconstructed and the partial record is not adequate for review. (Ibid.) This occurs if, for example, there is missing testimony or evidence that is necessary and material for the court to determination whether the administrative decision is supported by substantial evidence. (See Aluisi v. Fresno County (1958) 159 Cal.App.2d 823, 825-828; cf. Santa Cruz County Redevelopment Agency v. Izant (1995) 37 Cal.App.4th 141, 147; Code Civ. Proc., § 914.) We thus review the record here for its sufficiency in enabling us to determine, without speculation, whether substantial evidence supports factual determinations that, in turn, support the agencys decision. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 516-517, fn. 16; Code Civ. Proc., § 1094.5, subd. (b).)
The transcript of the Commission hearing of July 26, 2000, shows that the staff member who prepared both the February 9 and July 26, 2000, reports testified at the beginning of the hearing. She presented slides and described the valley, corral, and foundation sites. She referred to the geotechnical analysis the Andersons had submitted. She summarized the staff recommendation that the Commission approve use of the corral site, based on its conclusion that the proposed residence at that site would not be visible to the public, whereas at the foundation site it would be partially visible from Cabrillo Highway. The transcript also shows that, at the conclusion of the hearing, one of the Commissioners argued that the Commission should follow the staff recommendation to approve building at the corral site, so as to better conform with LCP policies. Nevertheless, the majority went on to adopt, with some modifications, the findings and conditions set out in the staffs report of February 9, 2000, permitting use of the foundation site. The modifications added further restrictions to conditions in the February 9 report that limited the height of the structure and required vegetation to screen the structures partial visibility to the public. The Commissions file shows that the July 26, 2000, report included, as attachments, both the prior report of February 9, 2000, and the geotechnical report submitted by the Andersons.
From this it is clear that the Commissions effectively rejected the corral site in favor the foundation site, and in doing so imposed conditions designed to address the concern underlying the rejected staff recommendation. It is also clear that the Commission, in reaching this decision, considered evidence presented in three critical documents: the report of February 9, 2000, which it adopted; the report of July 26, 2000, which was discussed at the hearing; and the geotechnical report, which was attached to the July 26 report and was also mentioned at the hearing.
The geotechnical report rejected the corral site primarily because the northern edge of a building on that site would be in close proximity to a slope dropping steeply down to the access road. Directly below the site, this slope had been excavated to accommodate a realignment of the access road, creating a near-vertical cut eight to ten feet high. This cut was already beginning to fail, but remained unsupported because any landslide was only a road maintenance issue and posed no risk to any existing structure. In the consultants opinion, this cut created a risk of "massive . . . instability" or "erosion" of the slope above, which could affect a building positioned on the corral site. Therefore, "extensive mitigation work" would be required to support the cut before undertaking any construction at the corral site.
Other reasons included the need for extensive grading, excavation, and fill construction, as well as the fact that the site was inferior to the foundation site in terms of drainage and the positioning of leach fields.
At the hearing, one commissioner alluded specifically to this problem. That commissioner commented that, whereas the foundation site had a "view problem," the commissioner also understood the corral site had "some difficulty with respect to retaining walls on the driveway." In reviewing the administrative record under the substantial evidence test, a court may properly infer factual determinations from an agencys oral comments made during its public hearing. (See City of Carmel-by-the-Sea v. Board of Supervisors (1977) 71 Cal.App.3d 84, 91-92.) We find that this comment succinctly summarizes the Commissions factual determinations with respect to both the foundation site and the corral site: the former site had a "view problem" and the latter site posed "some difficulty" due to the need for retaining walls. The Commissions determination as to the corral site is clearly based on the geotechnical report. In effect, the determination adopts the conclusion in that report that the corral site posed a safety risk due to a nearby unstable slope and that mitigation of the risk would require "extensive . . . work" in the form of retaining walls. Although the Commission hearing transcript contains no express mention of LCP Policy 8.17, the findings adopted by the Commission in the report of February 9, 2000, do state that use of foundation site complies with LCP Policy 8.17 because the use of the existing driveway and foundation at that site minimizes further alteration of landforms on the parcel. This is in distinct contrast with the "difficulty" posed by the support construction required at the corral site.
The implication is clear. The Commission balanced the safety risk of the corral site with the "view problem" of the foundation site, and concluded and the "view problem" conflicting with LCP Policy 8.5 was one that could be mitigated more easily and successfully than the safety risk, which could be mitigated only in derogation of LCP Policy 8.17.
This implication is consistent with a report to the Board from the Commission dated October 2, 2000. This report was prepared by the same Commission staff member who prepared both the staff recommendation dated February 9, 2000, and that dated July 26, 2000, and who appeared at the Commission hearing. It expressly states that the Commissions decision involved a balancing of LCP Policy 8.5 with LCP Policy 8.17, in light of the geotechnical report that was attached to the July 26, 2000, recommendation.
We conclude that the administrative record is sufficient to show the Commissions evidentiary determinations, in compliance with Topanga Assn. for a Scenic Community v. County of Los Angeles, supra. We conclude as well that substantial evidence supports the Commissions implied determination that the corral site posed a safety risk requiring support structures. This determination, in turns, supports the Commissions decision to allow use of the foundation site subject to conditions that mitigate the visibility of a structure at that site. The decision appears to be a reasonable resolution of conflicting policies "in a manner which on balance is the most protective of significant coastal resources." (§ 30007.5.)
Harvey suggests it is against public policy to permit the Andersons to skirt LCP Policy 8.5 by using an existing but illegally constructed foundation and driveway. The foundation and driveway are not illegal, however. It is clear from the record that these were constructed under permits duly issued to the previous owner. Those permits were suspended pending an action by the Coastal Commission, but this action concerned a prior subdivision of the parcel and not the validity of the permits. The final judgment in that proceeding voided the subdivision and conditioned further construction on new permits, which the previous owner never sought. The judgment also expressly provided that the previous owner was not required to remove the existing foundation absent "further order by appropriate governmental authorities."
C. The Boards Denial Is Supported by Substantial Evidence
Harvey suggests the Board did not properly consider the application of LCP Policy 8.5 in this case because the Commissions recommendation to the Board did not adequately address this policy as well as LCP Policy 8.17. The concerns set out in LCP Policy 8.5 were, however, repeatedly raised before the Board. Commission staff testimony and reports showed that, although the corral site was the least visible, the Commission nevertheless concluded that visibility of the residence at the foundation site could be eliminated, or at least diminished, and that site was preferable to the corral site because it would result in the "least impact" on the parcel resulting from further "grading, tree removal, et cetera." The Andersons geotechnical consultant testified that "extensive grading and retaining walls along [the] main thoroughfare" would be required to use the corral site. We conclude this is substantial evidence supporting the Boards denial of Harveys appeal after due consideration of both LCP Policies 8.5 and 8.17.
D. The Commission and Board Decisions Are Not Erroneous As a Matter of Law
Harvey urges that, even if the Commission and the Board did properly balance the competing considerations of Policies 8.5 and 8.17, the evidence in this case requires, as a matter of law, that preference be given to the preservation of public views under LCP Policy 8.5, as distinguished from the preservation of landforms under LCP Policy 8.17, because in this case any landform alteration resulting from use of corral site would not be visible to the public.
As noted above, both policies derive from section 30251 and have equal significance for purposes of the conflict resolution provisions of section 30007.5. There is nothing either in section 30251 or LCP Policy 8.17 that expressly limits the policy of minimizing landform alterations only to alterations that would be visible from existing public viewpoints. We conclude that LCP Policy 8.5 does not trump LCP Policy 8.17 on the facts of this case.
E. The Trial Court Did Not Err in Denying the Petition Despite New Evidence
Harvey argues that he presented new evidence to the trial court regarding construction at the foundation site that occurred after the Coastal Commissions denial of his appeal. Specifically, he submitted photographs taken May 29, 2002, which he claims show that the incomplete structure at the foundation site is more visible than the Commission had estimated. Harvey contends the court should have granted his petition and remanded for a rehearing before the Commission in light of this new evidence.
Normally, review under Code of Civil Procedure section 1094.5 is limited to the administrative record. However, "[w]here the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced . . . at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence." (Code Civ. Proc., § 1094.5, subd. (e).) A determination of the question of whether this exception applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) We find no such abuse of discretion in this instance. Harvey does not claim the structure violates any permit conditions, and the photographs submitted do not necessarily depict the degree to which the structure will ultimately be visible following completion and compliance with permit conditions such as exterior coloration and vegetation screening.
F. The Coastal Commissions Denial Is Supported by Substantial Evidence
Harvey argues the Coastal Commission erred in denying his appeal on the ground that the countys decision was not in compliance with LCP Policy 8.5.
As noted above, the Coastal Commission denied the appeal upon finding that it presented "no substantial issue" with respect to noncompliance with the LCP. (§ 30625, subd. (b)(2); see § 30603, subd. (b)(1).) The Coastal Commission adopted the recommendation of its staff in making this denial. The staff articulated the following factors for determining whether an appeal raises a "substantial issue" for purposes of section 30625: (1) the degree of factual and legal support for the local agency decision regarding compliance with the LCP; (2) the extent and scope of the proposed development; (3) the significance of coastal resources affected by the decision; (4) the value of the decision as precedent for future interpretation of the LCP; and (5) whether the appeal presented issues of statewide or regional importance or issues of only local importance. These factors appear to be a reasonable construction of the statutory term "substantial issue," and as this construction is made by the agency charged with enforcement of the Coastal Act, it is entitled to great weight. (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 425.)
Considering these factors, the staff reviewed the Commissions record, additional materials, and the results of its own field trips to inspect the visibility of the proposed structure from public viewpoints at the corral and foundation sites. The staff concluded, essentially, that the Commissions decision did not significantly impact coastal visual resources inconsistent with the visual protection policies of the LCP, including LCP Policy 8.5, and that the appeal therefore raised no substantial issue concerning compliance with these policies. The factual determinations underlying this conclusion included the following: the project was not in a "pristine area" of the coastal zone in which there was no other existing development; other existing development was visible from public viewpoints in the area; the extent of the proposed development was comparatively modest in scale; visibility of the proposed residence at the foundation site was limited and would be further mitigated by plants and exterior coloring; and, a building at the corral site would be only slightly less visible and would require significant grading and tree removal.
We conclude that there is substantial evidence in the Coastal Commissions administrative record supporting the denial recommended by the staff and adopted by the Coastal Commission. (See Davis v. California Coastal Zone Conservation Com. (1976) 57 Cal.App.3d 700, 709.)
G. The Coastal Commissions Did Not Violate Harveys Equal Protection Rights
Harvey argues, finally, that the Coastal Commission violated his equal protection rights, because in other appeals it has required permit applicants to prove that their proposed projects are located on the site within their property that is least visible to public view.
Although the record is not entirely clear on this point, the appeals to which Harvey refers are apparently cases in which the Coastal Commission found there was a substantial issue regarding compliance with LCP Policy 8.5, and in which it therefore granted de novo permit review. It was only in the de novo proceedings that the Coastal Commission imposed on the applicants the burden of proving compliance with LCP Policy 8.5. At the hearing on Harveys appeal, a Coastal Commission staff member addressed this issue, noting that the other cases involved proposed developments that were much larger in scale than the Andersons project and were located in areas much more pristine and undeveloped than the area surrounding the Andersons parcel. The impact on coastal visual resources was thus more significant in those cases and it was for that reason they had been deemed to raise a substantial issue justifying de novo review.
We find this to be a legitimate distinction for granting a full review in those cases. As we have concluded the Coastal Commission was within its discretion in denying Harveys appeal, and as it was therefore never necessary in his appeal to initiate a de novo review, no duty ever arose on the Andersons part to prove to the Coastal Commission that their permit complied with LCP Policy 8.5.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J. and Ruvolo, J.