Opinion
A169773
12-20-2024
HUMBOLDT ALLIANCE FOR RESPONSIBLE PLANNING, Plaintiff and Appellant, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent; Bureau of Indian Affairs, Real Party in Interest.
J. Bryce Kenny, Eureka, for Plaintiff and Appellant. Rob Bonta, Attorney General, Daniel A. Olivas, Assistant Attorney General, and David G. Alderson, Deputy Attorney General, for Defendant and Respondent.
Trial Court: Superior Court of the County of Humboldt, Trial Judge: Timothy Canning (Humboldt County Super. Ct. No. CV190866)
J. Bryce Kenny, Eureka, for Plaintiff and Appellant.
Rob Bonta, Attorney General, Daniel A. Olivas, Assistant Attorney General, and David G. Alderson, Deputy Attorney General, for Defendant and Respondent.
No appearance for Real Party in Interest.
CHOU, J.
Pursuant to the Coastal Zone Management Act of 1972 (16 U.S.C. § 1451 et seq.; CZMA), the United States Bureau of Indian Affairs (BIA) submitted a consistency determination to defendant and respondent California Coastal Commission (Commission) for the construction of a five-story hotel on land owned by the Cher-Ae Heights Indian Community of Trinidad Rancheria (Tribe). The BIA determined that the hotel project was consistent with the California Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.; Coastal Act). The Commission conditionally concurred with the BIA’s consistency determination.
All further statutory references are to the Public Resources Code unless otherwise specified.
Plaintiff and appellant Humboldt Alliance for Responsible Planning (HARP) challenged the Commission’s decision by filing a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5). The trial court denied the petition. On appeal, HARP argues that the Commission: (1) applied the wrong standard in assessing the visual impact of the proposed hotel; (2) failed to sufficiently state its basis for finding that the hotel would be visually compatible with the hotel’s surroundings; (3) improperly relied on its Environmental Justice Policy (EJP) and the doctrine of tribal sovereignty; (4) abused its discretion by issuing a conditional concurrence, rather than an objection; and (5) failed to make express findings as to fire protection services for the hotel—which were not adequate based on the evidence in the administrative record. We reverse in part, finding that there is insufficient evidence to support a finding of adequate fire protection services for the hotel as required by section 30205, subdivision (a). We affirm in all other respects.
I. BACKGROUND
A. Relevant Law
We begin with a brief overview of the relevant statutes and regulations.
The CZMA declares a national policy "to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations." (16 U.S.C. § 1452(1).) One of the CZMA’s stated pur- poses is "to encourage coordination and cooperation" among federal and state agencies in their "regulation of land use practices affecting the coastal and ocean resources." (Id. § 1452(5).) If a federal agency plans to commence an activity "within or outside the coastal zone" that affects coastal land or resources, it "shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs." (Id. § 1456(c)(1)(A).) To that end, the federal agency is required to "provide a consistency determination to the relevant State agency." (Id. § 1456(c)(1)(C).) The state agency may concur, conditionally concur, or object to that determination. (15 C.F.R. §§ 930.4(a) & 930.41(a).)
"California’s coastal zone includes coastal waters and adjacent shorelands, and extends three miles seaward from the State’s coast line." (California v. Norton (2002) 311 F.3d 1162, 1167.) The Commission is the state’s "designated … coastal zone planning and management agency" and "may exercise any and all powers set forth in the [CZMA]." (§ 30330.) It is responsible for implementing the provisions of the Coastal Act, which is the state’s federally approved coastal zone management program. (§ 30008.) Implementing those provisions, the Commission certifies coastal programs of local California governments located in coastal zones. (§ 30500.) As relevant here, the enforceable policies of the Coastal Act address the adequacy of public services for new developments (§ 30250, subd. (a)) as well as a development’s visual compatibility with its surroundings (§ 30251).
B. Administrative Proceedings
The Tribe owns approximately 46.5 acres of land east of the City of Trinidad. The BIA holds the land in trust for the Tribe. Although the land falls outside of California’s coastal zone due to its federal trust status, it is still subject to the CZMA. (16 U.S.C. § 1456(c)(1)(A).)
The Tribe seeks to build a five-story hotel on the land, next to its existing casino. Because the project requires the BIA to approve a loan guarantee and lease agreement, it is considered a federal activity that affects coastal resources and must comply with the CZMA. (16 U.S.C. § 1456(c)(1)(A).) Accordingly, in February 2019, the BIA submitted a consistency determination letter to the Commission. The BIA determined that the proposed project was consistent with the Coastal Act and requested that the Commission concur with its determination.
In June 2019, the Commission held a consistency determination hearing in San Diego. Commission staff recommended that the Commission object to the BIA’s consistency determination based on the hotel’s visual impact and the potential lack of an adequate water supply. Staff also noted that it had requested an extension from the BIA so the matter could be heard at the Commission’s August 2019 meeting in Eureka and local residents could voice their opinions, but the BIA denied the request. At the June hearing, the Commission (by a vote of six to three) followed staff’s recommendation and objected to the BIA’s consistency determination. Several commissioners requested that the BIA resubmit the project for consideration.
The BIA previously extended the deadline for the Commission's decision to June 14, 2019, and Commission staff noted that unless the BIA agreed to extend this deadline further, "federal statutory deadlines require the Commission to act by June 14th or else the Commission’s concurrence with the consistency determination will be presumed."
The BIA resubmitted its consistency determination the next month, and the Com- mission heard the matter at its August 2019 hearing in Eureka. Commission staff again recommended an objection based on the hotel’s visual impact and the potential lack of an adequate water supply. As to the visual impact, staff stated that the project could be brought into compliance with the Coastal Act (specifically, section 30251) if the hotel’s height was reduced from 64 feet to no more than 40 feet so that it is "not out of character" with its surroundings. At the August hearing, a motion was made to limit the hotel’s height to 40 feet or less, but the Commission rejected it by a six to five vote. After discussing other issues, the Commission conditionally concurred with the consistency determination (by a vote of eight to three), with the condition that the BIA provide evidence of an adequate water supply before starting construction.
Staff prepared revised findings to reflect the Commission’s conditional concurrence. HARP submitted written comments to these revised findings and requested that the Commission not adopt them. Its comments addressed, among other things, the adequacy of the water supply, the hotel’s visual impact, and the Commission’s improper reliance on the E JP. At its September 2019 hearing, the Commission adopted the revised findings.
C. Petition for Administrative Mandamus
HARP filed an administrative mandamus petition (Code Civ. Proc., § 1094.5), challenging the Commission’s conditional concurrence. HARP argued that the conditional concurrence must be set aside because: (1) the Commission used the wrong legal standard in approving the visual aspects of the proposed hotel; (2) the Commission failed to state in sufficient detail the basis for its rejection of its staff’s recommendation regarding the hotel’s visual impacts; (3) the Commission improperly relied on the EJP and the doctrine of tribal sovereignty; (4) the Commission misapplied the law in granting a conditional concurrence; and (5) substantial evidence did not support a finding that the hotel will have adequate fire protection services. The Commission opposed the petition.
[1] Following a hearing, the trial court denied the petition. With respect to the hotel’s visual impact, the court found that HARP failed to administratively exhaust its argument that the wrong legal standard was used and that the Commission stated the basis for its action in sufficient detail to allow its staff to prepare revised findings. The court also held that the Commission did not apply the EJP or the doctrine of tribal sovereignty in making its consistency decision and did not abuse its discretion by issuing a conditional concurrence. Finally, the court found that HARP forfeited any challenge to the adequacy of fire protection services by failing to present all relevant evidence in its opening brief. As a result, the court did not address the merits of that argument. HARP timely appealed.
We grant HARP’s unopposed request for judicial notice. We, however, note that HARP may cite a publication like the Federal Register without requesting judicial notice. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45, fn. 9, 77 Cal.Rptr.2d 709, 960 P.2d 513 ["A request for judicial notice of published material is unnecessary. Citation to the material is sufficient"].)
IL DISCUSSION
A. Standard of Review
A decision by the Commission may be challenged by a petition filed under Code of Civil Procedure section 1094.5. (§ 30801.) As relevant here, the inquiry is "whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [Commission] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).) When the findings are challenged for insufficient evidence, "abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Id., § 1094.5, subd. (c).)
[2–5] "The trial court presumes that the agency’s decision is supported by substantial evidence, and the petitioner bears the burden of demonstrating the contrary." (McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912, 921, 87 Cal.Rptr.3d 365 (McAllister).) The court does not substitute its own findings for that of the Commission; rather, "it is for the Commission to weigh the preponderance of conflicting evidence." (Kirkorowicz v. California Coastal Com. (2000) 83 Cal. App.4th 980, 986, 100 Cal.Rptr.2d 124.) Thus, the court "may reverse [the Commission’s] decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it." (Ibid.) Finally, the court must resolve all doubts in favor of the Commission’s findings and decision. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514, 113 Cal.Rptr. 836, 522 P.2d 12.)
[6] On appeal, "our role is identical to that of the trial court." (McAllister, supra, 169 Cal.App.4th at p. 922, 87 Cal.Rptr.3d 365.) We therefore independently determine whether substantial evidence supports the Commission’s findings. (Ibid.) We also review questions of law de novo. (Id. at p. 921, 87 Cal.Rptr.3d 365.)
See footnote *, ante.
C. EJP and Trial Sovereignty
[7] HARP contends that the Commission abused its discretion by relying on policies not found in the Coastal Act—specifically, the EJP and the doctrine of tribal sovereignty—to support its finding that the visual requirements of section 30251 were met. We find no abuse of discretion.
The Commission adopted the EJP with the goal of "provid[ing] guidance and clarity … on how the Commission will implement its recently enacted environmental justice authority including how it will consider environmental justice in coastal development permits. [Fn. omitted.]" Consistent with this goal, the Commission’s revised findings included a standalone "Environmental Justice" section. In that section, the Commission explained that its conditional concurrence will not only assist the Tribe "in achieving [its] goals," it will also "ensure that the hotel will be consistent with Chapter 3 standards of the Coastal Act." Then, in a different section titled "Scenic and Visual Resources"—which does not mention the EJP or tribal sovereignty—the revised findings explain why the hotel complies with the "scenic and visual" requirements of section 30251. Thus, the revised findings make clear that the Commission did not consider the EJP or tribal sovereignty in determining that the hotel project complied with section 30251. Indeed, the findings expressly stated that the "standard of review for this project is consistency with the enforceable policies of … the Coastal Act."
HARP nevertheless contends that the Commission improperly relied on the EJP based on the following facts. In June 2019, the Tribe stated in a letter to the Commission that its objection "may be construed as contrary to [the Commission’s] very own principles of environmental justice." In an addendum to its report, staff responded that "the Commission’s actions in furtherance of environmental justice goals must be undertaken in accordance with the resource protection policies of Chapter 3 of the Coastal Act." (Italics added.) At the August 2019 hearing, staff confirmed that "current law doesn’t allow us to afford any different analysis, even given the tribe’s sovereignty." Commissioner Padilla then commented that he was "very sensitive to the sovereignty question" and that although "the standards certainly don’t change, [ ] the way in which we interpret facts or circumstances to apply those standards [ ] do change." He continued that he was "willing, in light of the backdrop of the sovereignty issue, to give the [Tribe], certainly, a lot more leeway in making those determinations."
Shortly after Commissioner Padilla’s comments, the Commission’s then-Executive Director advised that the standard "is consistency with the Coastal Act" and that "[y]ou can use environmental justice in consideration of these decisions but, ultimately, the standard of review is the Coastal Act." In response, Commissioner Padilla agreed but added "that sometimes, depending on the different circumstances … there isn’t a but after [environmental justice], and it is as legitimate a consideration, based on the statute, as some of the others, because it is part of the law." He then explained why he did not believe that the hotel would substantially block any coastal views. Several other commissioners also highlighted tribal sovereignty during the hearing.
[8] Based on the colloquy described above, HARP argues that there were simply "too many references to tribal sovereignty and the EJP to find that they played no part in the [Commission’s] decision." We disagree. First, it is the written findings that determine "the grounds on which the decision of the Commission rests and thus render its legality reasonably and conveniently reviewable on appeal." (McAllister, supra, 169 Cal.App.4th at p. 941, 87 Cal.Rptr.3d 365.) Thus, oral comments made by select commissioners (primarily Padilla) at a hearing that may conflict with the written findings ultimately approved by the Commission are not relevant. That is especially so where, as here, the oral comments were made at the hearing that preceded the hearing in which the Commission approved those findings.
Citing two cases, HARP claims that oral comments are relevant and must be considered. But both cases are distinguishable. In No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 118 Cal.Rptr. 34, 529 P.2d 66, the trial court remanded a matter to the city council so it could determine whether an environmental impact report (EIR) was required but ordered the council to follow the wrong standard. (Id. at p. 82, 118 Cal.Rptr. 34, 529 P.2d 66.) Our Supreme Court held that the council’s resolution not to require an EIR was defective because the council applied the wrong standard imposed by the trial court. (Ibid.) In confirming that the council did, in fact, apply that standard, the high court noted that several council members "explicitly phrased their determination in terms of the trial court’s test." (Id. at pp. 86–87, 118 Cal.Rptr. 34, 529 P.2d 66.) In this case, however, the revised findings establish that the Commission applied the correct standards, rendering the oral comments irrelevant.
In Harris v. City of Costa Mesa (1994) 25 Cal.App.4th 963, 31 Cal.Rptr.2d 1, the city council affirmed the denial of a condi- tional use permit, and the clerk prepared a one-sentence memorandum justifying the denial. (Id. at p. 966, 31 Cal.Rptr.2d 1.) The trial court found that the findings in the memorandum were not supported by substantial evidence and set aside the council’s decision. (Id. at p. 967, 31 Cal. Rptr.2d 1.) The Court of Appeal reversed, holding that there "were other reasons given by the council members which were not specifically articulated in the memorandum" (id. at p. 970, 31 Cal.Rptr.2d 1) and which justified the denial of the permit (id. at p. 971, 31 Cal.Rptr.2d 1). In reaching this holding, the Court of Appeal used oral comments at the hearing to fill gaps in the written findings. In this case, however, the written findings adequately stated the grounds for the Commission’s decision. We therefore need not look any further.
But even if we did consider the oral comments, we still would not find an abuse of discretion. Although Commissioner Padilla commented that he was willing to give the Tribe "a lot more leeway" in light of "the sovereignty issue," he also stated that he was not "all that concerned about the issues of inconsistency that have been identified by the staff with respect to those standards." He also agreed that the standard was consistency with the Coastal Act and explained why he did not believe that the hotel violated the visual requirements of section 30251. Thus, Padilla’s comments indicate that he based his consistency conclusion on the Coastal Act and not the EJP or tribal sovereignty. And to the extent that his comments are ambiguous, his approval of the revised findings eliminate any such ambiguity. The same is true for the other commissioners who approved the revised findings.
Finally, Schneider v. California Coastal Com. (2006) 140 Cal.App.4th 1339, 1349, 44 Cal.Rptr.3d 867, does not compel a contrary conclusion. In that case, the Commission imposed several conditions that "were premised on the erroneous theory that section 30251 … protected public views from the ocean to the land" even though there is no such policy under section 30251. By contrast, the Commission did not impose any conditions premised on the EJP or tribal sovereignty in this case. We therefore find that the Commission did not improperly base its decision on any policies not found in the Coastal Act.
D. Conditional Concurrence
[9] HARP next argues that the Commission failed to proceed in a manner required by law because a conditional concurrence was not "procedurally proper." In support, HARP relies on two extrinsic documents: (1) the National Oceanic and Atmospheric Administration (NOAA)’s response to comments on its regulations implementing the CZMA; and (2) the Commission’s published guide, "Federal Consistency in a Nutshell" (Nutshell). We disagree.
Part 930.4 of title 15 of the Code of Federal Regulations (part 930.4 or 15 C.F.R. § 930.4) expressly authorizes the Commission to "issue[ ] a conditional concurrence" with a federal action like the BIA’s consistency determination (15 C.F.R. § 930.4, subd. (a)) and sets forth what must be done if a conditional concurrence is issued (id. subds. (a)(1)–(3)). The regulation does not, however, impose any prerequisites before a conditional concurrence may be issued. Thus, the Commission did not abuse its discretion in issuing one.
HARP counters that part 930.4 is ambiguous because "the term ‘conditional concurrence’ is semantically very similar to the phrase ‘approved the conditions,’ something that local agencies and the Commission frequently do in reviewing non-federal projects." (Italics added.) HARP’s argu- ment based on this ambiguity is less than clear. But it appears to be arguing that because of this ambiguity, the commissioners, in issuing a conditional concurrence, mistakenly believed that they were imposing conditions on the hotel project that they could enforce. In support, HARP points to comments made by Commissioner Howell at the August hearing and argues that he mistakenly believed that granting a conditional concurrence was the same as approving a project with conditions.
If the BIA adopts the condition proposed by the Commission, only the BIA, but not the Commission, may enforce that condition. (See New York v. DeLyser (W.D.N.Y. 1991) 759 F. Supp. 982, 987.)
But HARP does not explain how such a mistaken belief establishes that the Commission failed to proceed in a manner required by law. Indeed, the language of part 930.4 is not ambiguous; it imposes no prerequisites for issuing a conditional concurrence. That the commissioners may not have fully understood the difference between a conditional concurrence and an approval with conditions does not appear to establish one of the limited circumstances in which an abuse of discretion may be found under Code of Civil Procedure section 1094.5.
In any event, there is ample evidence that the Commission understood the import of a conditional concurrence when it approved the revised findings. Those findings, and not the oral comments of an individual commissioner, constitute the Commission’s action. (See, ante, at pp. 193–94.) And those findings set forth the correct standard for a conditional concurrence under part 930.4. Moreover, nothing in those findings suggests that the Commission ignored that standard. Indeed, Commissioner Howell approved those findings at a hearing that occurred after the hearing in which he made the comments at issue. Thus, he must have believed that his comments at the earlier hearing were consistent with the discussion of part 930.4 in the revised findings.
Our consideration of the two extrinsic documents that HARP references does not change our conclusion.
The first document referenced by HARP is an excerpt from the response of NOAA, the federal agency charged with implementing the CZMA, to comments on revisions to its own regulations implementing the CZMA. (65 Fed. Reg. 77127 (Dec. 8, 2000).) The excerpt explained why an objection may be more preferable than a conditional concurrence: "Once a State agency has concurred, even with conditions, the [] agency retains no further consistency authority over the project." This is significant because the "CZMA does not require a Federal agency to adopt a State’s conditions of concurrence" or take any enforcement action if it issues an approval but the applicant later does not comply with the conditions. But "[i]f a State agency objects, then [it] retains its authority over the project" and "the Federal agency … may not be able to proceed with a Federal agency activity." NOAA noted, however, that "[s]ome States still prefer conditional concurrences, presumably as a more positive response to an applicant or Federal agency" and that "States have a choice of choosing either option on a case by case basis."
The second document referenced by HARP is the Nutshell published by the Commission. According to HARP, the Commission revised the Nutshell in January 2001 to reflect NCAA’s response described above. With respect to conditional concurrences, the Nutshell stated: "Where there are significant concerns about a fed- eral activity, permit, or assistance, the Commission is likely to continue, as it has in the past, to object to the submittal rather than to issue a conditional concurrence. Conditional concurrences will be limited to situations where relatively minor project modifications are necessary to bring a project into consistency with an enforceable policy of the [state coastal management program]." (Italics added.)
HARP contends that the Commission must give deference to NOAA’s and its interpretation of the federal regulations and "was not free to ignore" them. HARP accordingly argues that the Commission acted unlawfully in issuing a conditional concurrence because identifying an adequate water supply was not a minor project modification. HARP, however, reads far too much into these two documents.
As a threshold matter, it is not clear how much deference should be given to the documents. In Auer v. Robbins (1997) 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (Auer), the United States Supreme Court held that courts should defer to a federal agency’s interpretation of its own regulation unless " ‘ "plainly erroneous or inconsistent with the regulation." ’ " And just five years ago, the high court in Kisor v. Wilkie (2019) 588 U.S. 558, 563, 139 S.Ct. 2400, 204 L.Ed.2d 841 (Kisor), reaffirmed that "Auer deference retains an important role in construing agency regulations." But more recently, that same court appeared to cast doubt on the viability of Auer deference in Loper Bright Enterprises v. Raimondo (2024) 603 U.S. 369, 144 S.Ct. 2244, 2263, 219 L.Ed.2d 832 (Loper). In Loper, the high court overruled Chevron, U.S.A, Inc. v. National Resources Defense Council, Inc. (1984) 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694, holding that "courts need not and … may not defer to an agency interpretation of the law simply because a statute is ambiguous." (Loper, at p. 2273.)
Although Loper did not expressly overrule Auer and Kisor, its reasoning is arguably irreconcilable with Auer deference. (See United States v. Boler (4th Cir. 2024) 115 Frith 316, 322, fn. 4 ["The Supreme Court’s recent ruling in [Loper] calls into question the viability of Auer deference"]; Friends of the Floridas v. United States Bureau of Land Management (D.N.Mex., Aug. 27, 2024, No. CIV 20-0924 ), — F.Supp.3d —, — , fn. 59, 2024 WL 3952037, *93, fn. 59 ["Although the Supreme Court did not overrule or alter Auer deference in Loper [], and the Supreme Court declined to overrule Auer just five years ago, … the basic principles that purport to underlie Auer and— formerly—Chevron deference are conceptually similar in that both involve administrative law’s judicial deference to agency interpretations of law, and thus both are susceptible to constitutional criticisms"].) Finally, it is not clear what, if any, deference should be accorded to a state agency’s interpretation of a federal regulation. (Cf. Land v. Anderson (1997) 55 Cal. Apprith 69, 81–82, 63 Cal.Rptr.2d 717 [declining to accord deference to a state regulation interpreting a federal statute], overruled by statute on another point.)
Fortunately, we do not have to determine the amount of deference to be given to the two documents referenced by HARP because part 930.4 is not ambiguous. It establishes no requirements that must be met before the Commission may issue a conditional concurrence. (See Kisor, supra, 588 U.S. at p. 575, 139 S.Ct. 2400 ["a court should not afford Auer deference unless the regulation is genuinely ambiguous"].)
But even if we accorded the highest level of deference to NOAA’s response or the Commission’s Nutshell, neither docu- ment supports a finding of abuse of discretion. At most, the documents suggest that an objection should be the preferred option; they do not limit the Commission’s discretion to issue a conditional concurrence. For example, NOAA observed that some state agencies "still prefer conditional concurrences" over an objection and made clear that state agencies "have a choice of choosing either option on a case by case basis." (Italics added.) Similarly, the Nutshell stated that "the Commission is likely to continue … to object" to a project if "there are significant concerns about a federal activity." (Italics added.) In other words, the Commission, in its discretion, may issue a conditional concurrence even if significant concerns exist.
Although the next sentence in the Nutshell states that the Commission will not issue a conditional concurrence if non-minor "project modifications are necessary to bring the project" into compliance with the Coastal Act, that sentence is qualified by the preceding sentence discussed above. Moreover, HARP does not point to anything in the record suggesting that a non-minor modification will be necessary to ensure an adequate water supply. Finally, the concern raised by the Commission’s then-Executive Director about issuing a conditional concurrence in light of the water supply issue at the June 2019 hearing has no bearing on whether the Commission acted lawfully. In any event, the Director did not raise that concern again at the August hearing in which the Commission voted for a conditional concurrence.
Accordingly, the Commission did not abuse its discretion by issuing a conditional concurrence.
See footnote *, ante.
III. DISPOSITION
The judgment is reversed in part. The matter is remanded, and the trial court is directed to issue a peremptory writ commanding the Commission to reconsider whether the proposed project is consistent with section 30250 with respect to fire protection services. The Commission may, on remand, consider any additional evidence of fire protection services that either party wishes to present. In all other respects the judgment is affirmed. Both parties shall bear their own costs.
We concur.
SIMONS, Acting P. J.
BURNS, J.