Opinion
H034412 Santa Cruz County Super.Ct.No. CV158559
09-27-2011
ALBERT R. SCHRECK et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, et al., Defendants and Respondents; RABOBANK, Real Party in Interest and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In 2004, Michael and Deborah Collins, formerly the real parties in interest in this case, applied for a coastal development permit to build a "bunker style" home on their property located at the base of a steep coastal bluff on Beach Drive, which runs parallel and next to the beach, in the Rio Del Mar area of Aptos. A bunker style home is so described because its extensive engineering and design features maximize stabilization of the structure and render it more able than other kinds of structures to withstand failure of the sloped ground on which it is built or the bluff overhead. Any landslide from above would pour over the roof and along the sides of the house while the inhabitants are safe inside. These design features give the building the appearance of a rectangular, solid bunker built into the hillside. Several neighboring bunker style homes had already been approved and built at the same base of the bluff along Beach Drive and others were in various stages of development during the course of the administrative permitting process that the Collinses pursued.
The Collinses ultimately lost the property in foreclosure and Pacific State Bank became its owner and the real party in interest while this petition was pending in the superior court. Rabobank has now become the record owner of the property and has recently been substituted in by this court's order as the real party in interest. But we refer to the Collinses throughout this opinion because it is they who obtained the coastal development permit from the Coastal Commission that is being challenged here.
After the Santa Cruz County Planning Commission denied their application for a coastal development permit in June 2006, the Collinses appealed to the County Board of Supervisors, which approved the permit in September 2006, subject to various conditions designed to mitigate adverse impacts associated with the project. Several neighbors, including appellants Joel and Albert Schreck and Mitzie and Robert Forsland, own homes on the beach side of Beach Drive across the street from the Collinses' property and had objected to the project, mostly because of the perceived risk that excavation of the hillside and construction of the house would destabilize the bluff overhead that was already vulnerable, thereby causing damage to the properties below and endangering the residents. Schreck and Forsland sought review by the Coastal Commission, which found a substantial issue and took jurisdiction over the permit application. The Commission ultimately approved the project in September 2007, likewise subject to mitigating conditions, and adopted findings, which included that the development was consistent with various portions of the certified Santa Cruz County Local Coastal Program (LCP).
For convenience, we collectively refer to appellants as Schreck and Forsland.
Schreck and Forsland then sought relief in mandamus in the superior court, contending that the project violated aspects of the California Coastal Act of 1976 (Pub. Res. Code, § 30000 et seq.). The court denied their petition, concluding that because Santa Cruz County has adopted an LCP that was certified on January 13, 1983, by the Coastal Commission under sections 30512, subdivision (c) and 30512.2, any legally viable challenges to the issuance of the permit by the Coastal Commission were limited under sections 30603 and 30604 to those asserting inconsistency with the LCP, not the Coastal Act, and that Schreck and Forsland had accordingly not articulated a viable legal challenge warranting relief in mandate.
Further statutory references are to the Public Resources Code unless otherwise indicated.
This section also permits challenges to a project on the basis that it does not conform to Coastal Act access policies, an issue not relevant here.
For reasons we will explain, the only issue preserved for appeal is whether the Coastal Commission abused its discretion by approval of the coastal development permit on the basis that the development conformed to the LCP, without regard to whether the development more broadly conformed to section 30253, subdivisions (a) and (b) of the Coastal Act. Our answer is no, and we accordingly affirm the judgment.
Section 30253 was amended in 2008 to rename its subdivisions with alphabetical letters replacing numbers. There was no substantive change in the statute. (Stats. 2008, ch. 179, § 187.) Although at the time of the events of this case, section 30253's applicable subdivisions were labeled (1) and (2), for clarity we refer to them as the statute now reads, section 30253, subdivisions (a) and (b).
STATEMENT OF THE CASE
I. Factual Background
A. The Proposed Development
The development is an approximately 5,800 square foot, single family, three story home proposed to be built on a lot on the inland side of Beach Drive in an unincorporated area of Aptos in Santa Cruz County located within the coastal zone. Beach Drive includes a private, gated section at its dead end and this property is located there, at 548 Beach Drive. The neighborhood is well developed with a total of 137 homes on Beach Drive, 56 of which are on the beach side and 81 of which are on the inland side at the base of a steep coastal bluff. Most of this existing development took place before passage of the Coastal Zone Protection Initiative in 1972. Most of the beachside homes are one story. Nearly half of the inland side homes are three stories, though this requires a variance. Of the 15 existing homes on the inland bluff side within the private section of Beach Drive, 11 are three stories. While a number of existing homes along the inland side of the private section of Beach Drive are in the 2,000 to 3,000 square foot range, five of these range in size from 3,120 to 6,322 square feet.
The site where the home is proposed to be constructed is a large lot at the base of the bluff. It is "steeply sloped, with the entire site consisting of a slope ranging from 50 [percent] to over 70 [percent]." The bluff face is "actively eroding," which, along with the slope, has required "extensive mitigations" for development, including "the use of reinforced concrete foundations, and retaining walls, to both support the slope and bear the impact and weight of a potential major landslide, earthquake or flooding, without collapse or . . . failure of the structure, itself." "Over the years, this area of the coast has been subjected to landslides, storm surge, and wave run-up that has damaged or destroyed homes. In response to the hazardous conditions found along Beach Drive the County has been requiring since 1993 that any new residential development or redevelopment along the inland side of Beach Drive be constructed to . . . withstand landslides, earthquakes, and floods."
The proposed home "will be constructed using reinforced concrete, and has been designed and engineered to withstand the impact of expected landslides. For example, the sides of the proposed structure are designed as retaining walls to prevent damage by landslide flows along the side yards. The proposed project includes approximately 1,250 cubic yards of grading, due to the steeply sloped nature of the project site. The lowest habitable floor of the proposed dwelling is located 21-feet above mean sea level, which is above FEMA's expected 100-year wave impact height. The first floor of the proposed project consists of a non-habitable five-car garage. The garage doors and non-load bearing walls are designed to function as 'breakaway' walls, as required by the FEMA regulations for development in FEMA Flood Zone V."
The "mass of the residence will be broken up by stepping back each of the three levels to be flush with the bluff." Its design is similar to adjacent development on the inland side of Beach Drive and its features in terms of architectural style, colors and materials would be integrated with the neighborhood. And although it is three stories and requires a variance in this regard, the structure would still comply with the LCP's 25-feet height limit. By 2007, eight three-story dwellings using the same reinforced construction as the proposed project had been approved on the inland side of Beach Drive.
B. The Planning Commission
The Collinses applied to the Planning Commission for a coastal development permit in June 2004. While the project was under consideration, they submitted several engineering reports, all of which concluded that the project, as ultimately approved, adequately mitigated the geological risks that the site conditions presented. The Collinses also submitted several geotechnical reports supporting the safety of the project in that it would stabilize the base of the bluff as well as provide a "rooftop catchment area for landslide debris."
Schreck and Forsland have homes on the beach side of Beach Drive, located directly across the street from the Collinses' property. They each have owned their homes for more than 50 years, during which there have been landslides and earth movement resulting in some inland side homes sliding down the bluff toward the beach homes. In connection with the Collinses' proposed project, Schreck and Forsland hired a geologist, who submitted a report reflecting his opinion that the proposed development— or in essence, any proposed development—would decrease geologic stability at the site and because of this, the project should not be approved.
The County Geologist reviewed all the technical reports submitted and prepared his own report, which concluded that the project met pertinent safety and other legal requirements and should be approved.
The Planning Commission initially heard the proposal for development on April 12, 2006, and continued the matter to May 10, 2006 to "allow the applicants to conduct a neighborhood meeting and to ensure that representatives from the Department of Public Works Storm Water Management Section and the [Collins'] engineer would be present." The continued hearing included testimony by staff, the Collinses' structural engineer, neighbors opposing the development, and the geologist hired by Schreck and Forsland. The Planning Commission denied the Collinses' application for a permit on a 3-2 vote and adopted findings in support of that denial on June 28, 2006. The denial was "based on health and safety concerns due to the location of the residence in an area subject to landslide hazards at the toe of a coastal bluff."
C. The Board of Supervisors
The Collinses appealed the Planning Commission's decision to the County Board of Supervisors, which voted on August 22, 2006 to take jurisdiction of the project and to schedule it for public hearing. "On September 26, 2006[,] the . . . Board of Supervisors overturned the Planning Commission's denial and approved the project based on the recommended findings and conditions presented to the Planning Commission at the April 12, 2006 hearing, with two additional conditions of approval."
D. The Coastal Commission
Schreck and Forsland appealed the project approval to the Coastal Commission, which, on December 13, 2006, found that the appeal raised a substantial issue in terms of the project's consistency with the LCP. The Commission took jurisdiction over the coastal development permit application to conduct a de novo review for consistency with the LCP and public access and recreation policies of the Coastal Act, which is the extent of Coastal Commission jurisdiction for this proposed development when, as here, a local government has adopted an LCP that the Commission has certified as being consistent with chapter 3 of the Coastal Act. (§§ 30200, subd. (a), 30512, subd. (c), 30603, subds. (a), (b).)
The Commission held its first hearing on the proposed development on March 14, 2007. The staff report for the hearing recommended that the Commission find the development, as conditioned, consistent with the LCP and approve the permit. During the hearing, several commissioners voiced concern about the project as one of the first "bunker style" homes to come before them and wanted further analysis and information about its consistency with the LCP's landform alteration and hazard policies. The hearing was accordingly continued for staff to provide further analysis and information on these topics. Specifically, staff was to provide additional analysis "regarding the public safety issues of developing on such a steep slope and an evaluation of whether a reduction in the size of the house will equal a reduction in risk from geological hazards" and information on the question whether the amount of grading required made the project inconsistent with the LCP's landform alteration policy.
Staff conducted further evaluation of the development and revised its recommendations in its report for the continued hearing, then offering that the project as proposed was inconsistent with several land use policies (LUP) incorporated into the LCP, including those concerning minimization of excavation or fill (LUP policy 6.3.9(c)); minimization of landform disruption for grading operations taking place in scenic areas (LUP 5.10.3); the siting and design of new development to avoid or minimize hazards (LUP 6.2.10); set backs (LUP 6.2.12); and neighborhood compatibility (LUP 5.10.7).
Because of the extreme site conditions, staff further opined that there were no feasible development alternatives that would be fully consistent with the LCP. But because of constitutional takings concerns, staff recommended that the Commission approve a modified and smaller "development on the site[,] subject to special conditions to address land form alteration, natural hazards, and neighborhood compatibility issues in a manner consistent with private property rights." The suggested modifications to the development included removal of its third story and resulting reduction of its square footage to 3,800 square feet. Staff advised that even with the suggested modifications, the project would "not achieve full consistency with the LCP's policies and zoning regulations regarding landform alteration, neighborhood compatibility, and natural hazards. However, as conditioned, the project's impacts regarding" these issues "will be mitigated to the maximum extent feasible, while providing the applicants a reasonable economic use, consistent with Coastal Act [s]ection 30010."
Before the continued hearing, the Commission's staff geologist reviewed all of the technical reports and performed a site visit. His separate report discussed all of the contentions against the project as proposed but provided his conclusion, inconsistent with the revised staff report, that "this parcel can be developed safely within the parameters of the LCP." ~(AR 1426)~ He further concluded that the house's extensive foundation system and structure design "will serve to strengthen the slope and will actually tend to reduce the risk of deep-seated landslides at the site" and lend increased "stability . . . to the hillside." The staff geologist further opined that reducing the size of the residence would not lower the risk of landslide or debris flow either during construction or upon completion of the development, and that suggested changes to the development associated with the size reduction would actually increase risk. The Commission's staff engineer separately concurred with this conclusion and further offered in a memo that the "safe buildability does not change greatly if the house is two or three stories."
Despite the revised staff report, the Commission approved the permit for the development, as proposed by the Collinses and conditioned by the County, at its September 6, 2007 hearing, subject to the same conditions that Commission staff had recommended in its first report in connection with the prior March 14, 2007 hearing. The Commission also adopted the findings that staff had previously recommended with respect to that hearing. These included that the development as conditioned for mitigation was consistent with the LCP, specifically with respect to (1) minimization of hazards (LUP 6.2.10) and (2) neighborhood compatibility and visual resources (multiple zoning ordinances and LUP policies 5.10.2, 5.10.3, and 5.10.7).
II. Procedural Background
Schreck and Forsland challenged the Coastal Commission's approval of the development and issuance of the coastal development permit by petition for writ of mandate filed on November 5, 2007, in the superior court. They named the Coastal Commission and the Board of Supervisors of the County of Santa Cruz as respondents and the Collinses as the real parties in interest. They alleged that the Coastal Commission staff had advised the Commission before its approval of the project that excavation for and construction of the bunker style home would violate unspecified policies of the LCP that restrict "development on slopes in excess of 30 [percent];" minimize "grading on coastal bluffs;" and require "a minimum 25 foot setback from the top of a bluff." They further pleaded that notwithstanding this advice, the Commission approved the development, which violated section 30253 of the Coastal Act in two respects. The first of these was that excavation for and construction of the project would, contrary to section 30253's mandate for new development, "permit the significant alteration of the bluff." Secondly, these activities would fail to (1) "[m]inimize risks to life and property in areas of high geologic, flood and fire hazard;" and (2) "[a]ssure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability or destruction of the site or surrounding [area], or in any way require the construction of protective devices that would significantly alter natural land forms along the bluffs and cliffs." (Underlining omitted.) Therefore, they alleged, the Commission abused its discretion in issuing the permit by its "failure to comply with and enforce" section 30253. Schreck and Forsland sought a peremptory writ of mandamus commanding the Commission's compliance with this section, which, they contended, required denial of the Collinses' application for a coastal development permit.
The Coastal Commission filed a return and the Collinses filed what they labeled an answer. Schreck and Forsland each filed what they labeled "Replication to Answer," which, in essence denied defensive allegations made by the Commission and the Collinses.
California does not recognize a replication to answer, by which a plaintiff in a civil action responds to affirmative matter pleaded by way of defense, as a form of pleading. (Platner v. Vincent (1924) 194 Cal. 436, 442-443.) In the context of an extraordinary writ proceeding such as habeas corpus, the petitioner responds to the respondent's return to order to show cause by way of traverse and the interplay of all these pleadings frames and joins the factual issues the court must decide. (People v. Duvall (1995) 9 Cal.4th 464, 476-478.)
Schreck and Forsland then asserted in written argument below that their petition presented "one fundamental issue: Whether Public Resources Code [section] 30253 of the California Coastal Act may be construed to authorize alteration of a landform by extensive excavation, back cutting and significant removal of material during the construction of a proposed bunker home on a fragile[,] steep coastal bluff which lies at a 50-70 [percent] slope." They contended that this controlling issue was one of statutory interpretation, or involved application of a statute to undisputed facts, such that the court would review the question de novo and not under the substantial evidence test.
In this regard, they substantively argued that the "proposed structure does not conform to Public Resources Code [section] 30253" in the two respects alleged in their petition, citing only evidence from the administrative record favoring their position and ignoring the rest. In the context of this argument, and not as a separate argument or contention, they cited three respects in which Commission staff had opined that the development was inconsistent with LCP policies (5.10.3; 6.2.10; and 6.3.9). They additionally and separately contended that the proposed development did not come within the provisions of section 30235, which allows alteration of a bluff but only to protect existing structures. They finally contended that denial of the coastal development permit by the Commission would not constitute a taking, a matter beyond the Commission's findings and not included as a basis for its decision to approve the issuance of the permit.
In an attempt to overcome opposing arguments that the Commission's jurisdiction was limited as a matter of law to determining whether the development conformed to the LCP and not the Coastal Act generally, Schreck and Forsland articulated a new contention in their reply brief. This was that the Commission's finding that the development conformed to the LCP was not supported by substantial evidence and that the record instead affirmatively demonstrated that the project violated policy 6.2.10 (minimization of hazards) and policy 6.2.12 (set backs) of the LCP.
At the hearing on the petition, the court attempted to clarify just what Schreck and Forsland were contending. Their counsel did not argue that the project violated the LCP, as had been asserted in their reply brief. He instead contended that the LCP, under which the permit was approved, is inconsistent with section 30253 of the Coastal Act and that this provision, rather than the LCP, controls. In fact, counsel said that this contention was Schreck and Forsland's "whole case," effectively abandoning any other claims. Thus, the issue the trial court perceived was before it for determination, as framed by Schreck and Forsland, was whether relief in mandate should be afforded because the Coastal Commission abused its discretion by approving a development permit that was inconsistent with section 30253 of the Coastal Act even though it conformed to the LCP, which would mean either that the LCP itself is inconsistent in some respect with section 30253 or that the LCP fails to address the subject matter of section 30253.
The court denied the petition, concluding that section 30604, subdivision (b) sets the standard for issuance of a coastal development permit once a local government has a certified LCP in place and that standard is whether the development conforms to the LCP, not whether it conforms to the Coastal Act generally. Here, the Coastal Commission had specifically found that the development complied with the LCP and given this finding, which Schreck and Forsland did not affirmatively challenge, the Commission was bound to approve the issuance of the permit. The court further observed that if an LCP is found to be inconsistent in some respect with the Coastal Act, "there is a statutory process to amend the [LCP]" and a "recognized procedure for accomplishing that." The court directed counsel for the Coastal Commission to prepare a formal order, as the clerk's minutes reflect.
The court's later written order denying relief in mandate said, "Petitioners contend that the Commission abused its discretion in approving the project, based exclusively on allegations that the Coastal Commission approved development in violation of section 30253 of the California Coastal Act, rather than a claim that it violates any provision of the certified Santa Cruz County Local Coastal Program ("LCP"). The Coastal Commission was required by Public Resources Code [section] 30604[, subdivision] (b) to approve the coastal development permit if it found the proposed development to be in conformity with the LCP, and the Coastal Commission properly considered conformity of the proposed development with the LCP. This Court finds that the evidence in this case supports the Coastal Commission's finding that the proposed development is in conformity with the LCP, and the Coastal Commission's approval of the coastal development permit for the proposed development was therefore valid."
The order also reflected that Schreck and Forsland had dismissed all claims against the Board of Supervisors of the County of Santa Cruz, which had previously been a party to the proceeding.
The trial court entered judgment on June 25, 2009, against Schreck and Forsland, consistently with its written order filed the same day denying relief in mandate. Five days later, Schreck and Forsland filed a notice of appeal "from the Minute Order denying Petitioners['] Writ of Mandate entered on January 7, 2009." For some reason, on July 13, 2009, the court again entered the same written order denying the petition, along with another judgment.
The judgment reflects that by that point, the court had granted Pacific State Bank's application to substitute in as the real party in interest in place of Michael and Deborah Collins, although a formal, written order allowing that substitution came later.
One difference between the two documents is the earlier judgment's reflection of Pacific State Bank as the substituted real party in interest in place of the Collinses, who were dismissed. The other difference in the two documents is the treatment of costs to the Coastal Commission as the prevailing party. Because of the one final judgment rule, which provides that an appeal lies only from the single, final judgment in an action that terminates the trial court proceedings by completely disposing of the matter in controversy (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697; Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304), we will treat the judgment entered on June 25, 2009, as the final, appealable judgment in the action and deem the second judgment as a postjudgment order concerning costs.
DISCUSSION
I. Appealability
It is necessary at the outset to address the question of appealability. Of course, a judgment adjudicating the rights of the parties and reflecting the denial of relief in mandate is appealable like any other final judgment under Code of Civil Procedure section 904.1, subdivision (a)(1). (Code Civ. Proc., §§ 1063, 1064; Knoll v. Davidson (1974) 12 Cal.3d 335, 343 [writ petitions are special proceedings of a civil nature and a final judgment in a special proceeding is a final determination of the parties' rights, which is immediately appealable]; Bloom v. Municipal Court (1976) 16 Cal.3d 71, 74-75; Catalina Investments, Inc. v. Jones (2002) 98 Cal.App.4th 1, 5.) But Schreck and Forsland have not appealed from a judgment. They instead specifically appealed from the minute order dated January 7, 2009.
An order denying relief in mandate may be appealable under the one final judgment rule notwithstanding the lack of a judgment if the order effectively disposes of all causes of action and no other causes of action or issues remain pending between the parties and no other further action on the petition is contemplated. (Griset v. Fair Political Practices Com., supra, 25 Cal.4th at p. 697; Breslin v. City & County of San Francisco (2007) 146 Cal.App.4th 1064, 1073-1074.) But here, there is a final, appealable judgment. And if there were no judgment, the written order denying the petition, not the minute order, would be appealable as a final judgment. Because the minute order directed counsel to prepare a formal written order, the court's "order" denying the petition for writ of mandate is not considered to be final or appealable or even to have been entered until the written, signed order was later filed. (Cal. Rules of Court 8.104(c)(2); Matera v. McLeod (2006) 145 Cal.App.4th 44, 59.) Thus, this appeal should not have been from the minute order, but instead from the judgment, or failing that, from the written order denying the petition.
Nevertheless, we are to liberally construe a notice of appeal so as to "protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." (Luz v. Lopes (1960) 55 Cal.2d 54, 59; Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18, 20, 22; Cal. Rules of Court 8.100(a)(2).) And where the appeal is mistakenly taken from an order preliminary to rendition of final judgment, we have the discretion to save the appeal by treating the notice of appeal as being taken from the existing judgment or appealable order. (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69; Conservatorship of Starr (1989) 215 Cal.App.3d 1390, 1393-1394 [faulty notice of appeal from minute order treated as appeal from subsequent formal order].) We exercise that discretion here because there is no doubt which ruling appellants seek to have reviewed and other parties were not misled to their prejudice. We accordingly construe the appeal as being from the final judgment entered June 25, 2009, and proceed to the merits. (Dominguez v. Financial Indemnity Co. (2010) 183 Cal.App.4th 388, 391.)
II. Scope of Our Review
The appellate record and briefing present some confusion about the basis on which Scheck and Forsland have maintained their challenge to the Commission's issuance of the coastal development permit to the Collins, both here and in the trial court.
As noted, they alleged in their petition for writ of mandate that in approving the permit, the Commission abused its discretion by failing to comply with and enforce section 30253 of the Coastal Act, which was the principle objection to the project they had raised during the administrative process. But their petition also alleged that the Commission had approved the permit in spite of its staff having advised it that the "proposed excavation [and] construction of the bunker home . . . would violate the policies of the [LCP] [that] [¶] (a) restrict[] development on slopes in excess of 30 [percent], [¶] (b) minimiz[e] grading on coastal bluffs, and [¶] (c) requir[e] a minimum 25 foot setback from the top of a bluff." Construed broadly, this allegation could be read to challenge the Commission's findings for the project's consistency with the LCP as not being supported by substantial evidence.
Section 30253 provides in pertinent part that new development shall "(a) Minimize risks to life and property in areas of high geologic, flood, and fire hazard. [¶]b) Assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs."
Then, in written argument below, they returned to their primary contention that there was but one single issue presented for the court's determination: "Whether [section 30253 of the Coastal Act] may be construed to authorize alteration of a landform by extensive excavation, back cutting and significant removal of material during the construction of a proposed bunker home on a fragile steep coastal bluff which lies at a 50-70 [percent] slope." And they challenged none of the Commission's findings, including those that specifically found the project consistent with the LCP, positing instead that the controlling issue in the case purely involved statutory interpretation or the application of a statute, section 30253, to undisputed facts. In so doing, they effectively forfeited in the trial court any claims that the Commission's findings are inadequate or are not supported by substantial evidence. (Black v. State Personnel Board (1955) 136 Cal.App.2d 904, 909 [any finding not specifically attacked in mandamus proceeding is to be accepted as true].)
On the other hand, their reply brief below contained the new, general assertion that the administrative record lacks substantial evidence that the project conforms to the LCP. But at the hearing on the petition, Schreck and Forsland's counsel did not argue that the project violated the LCP, instead contending that the LCP, under which the permit was approved, is somehow inconsistent with section 30253 of the Coastal Act and that this provision, rather than the LCP, controls. Indeed, counsel said that this contention was Schreck and Forsland's "whole case," abandoning any other claims. And, as noted, the court's order denying their petition confirmed the limited scope of their challenge below by observing that Schreck and Forsland had exclusively contended that the project violates section 30253 of the Coastal Act "rather than [making] a[ny] claim that it violates any provision of the LCP.
Even so, their briefing on appeal still includes undeveloped contentions that the project violates not just section 30253 of the Coastal Act but also four specific provisions of the LCP—arguments that invoke substantial evidence review because the Commission expressly found that the project conformed to the LCP, resolving disputed issues about
which there was conflicting evidence in the administrative record. With respect to these contentions in argument as well as in their statement of facts, Schreck and Forsland cite only favorable evidence from the administrative record regarding the project's inconsistency with the LCP while ignoring contrary evidence. But under substantial evidence review in the determination whether administrative findings are supported by the evidence, we look to the whole record and an appellant in any case is required to fairly set out all material evidence from the record on a disputed point. (Code Civ. Proc. § 1094.5, subd. (c); Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Bresnahan v. Chrysler Corp. (1998) 65 Cal.App.4th 1149, 1153, fn. 5.) In spite of these evidentiary contentions attacking the Commission's findings, Schreck and Forsland's briefing in this court still urges that the only applicable standard of review is de novo because the case involves only interpretation of a statute, section 30253 of the Coastal Act, or application of law to undisputed facts, thus again confirming that they are not seriously challenging any of the Commission's findings, including those findings confirming the project's conformity to the LCP.
In light of the foregoing, we will limit our review in this case to the primary issue as framed by appellants. This is whether the Coastal Commission abused its discretion by approval of the coastal development permit on the basis that the development conformed to the LCP, without regard to whether the development more broadly conformed to section 30253, subdivisions (a) and (b) of the Coastal Act. This is an issue of law, which we review de novo. It is the only issue Schreck and Forsland pursued in the court below, where they expressly disavowed any claims concerning the project's lack of conformity with the LCP. These claims concerning the project's lack of conformity with the LCP have accordingly been waived and we decline to consider them. (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 46 [new theory raised for the first time on appeal not cognizable]; Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316-1317 [unfair to trial court and other parties to permit change in legal position on appeal to assert new theory]; Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218; Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410 [neither respondent nor the appellate court are required to independently comb the record where an appellant has shirked the duty to set forth all material evidence relevant to a sufficiency-of-the-evidence claim].)
But we parenthetically observe that the administrative record appears to contain substantial evidence to support the Commission's findings of the project's conformity with the LCP.
III. General Legal Landscape
A. The Coastal Act
The Coastal Act was enacted in 1976 " 'as a comprehensive scheme to govern land use planning for the entire coastal zone of California.' [Citations.]" (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 271 (McAllister):) Its goals are to: " '(a) Protect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources. [¶] (b) Assure orderly, balanced utilization and conservation of coastal zone resources taking into account the social and economic needs of the people of the state. [¶] (c) Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners. [¶] (d) Assure priority for coastal-dependent and coastal-related development over other development on the coast. [¶] (e) Encourage state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development for mutually beneficial uses, including educational uses, in the coastal zone.' (§ 30001.5.) Among other things, the 'scenic and visual qualities of coastal areas shall be considered and protected as a resource of public importance.' (§ 30251.)" (McAllister, supra, at p. 271.)
"The Coastal Act 'assigns chief responsibility for regulating the use and development of the "coastal zone" . . . to [the] California Coastal Commission.' [Citation.]" (McAllister, supra, 147 Cal.App.4th at p. 271.) But the Coastal Act also requires that "local governments within the coastal zone prepare a Local Coastal Program (LCP) and implement ordinances to promote the Coastal Act's objectives of protecting the coastline and its resources and maximizing public access. (§§ 30001.5, 30512, 30513; Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006, 1011.)" (Schneider v California Coastal Com. (2006) 140 Cal.App.4th 1339, 1344 (Schneider).) The Coastal Act sets " ' "minimum standards and policies" for localities to follow in developing land use plans' but leaves ' "wide discretion to ... local government ... to determine the contents" of such plans . . . . [Citations]; see also §§ 30004, subd. (a), 30005, subds. (a), (b).) The act thus contemplates 'local discretion and autonomy in planning subject to review for conformity to statewide standards.' [Citation.]" (McAllister, supra, 147 Cal.App.4th at p. 272.)
A "local government's land use plans, zoning ordinances, zoning district maps, and other implementing actions that satisfy the Coastal Act" comprise its LCP. (McAllister, supra, 147 Cal.App.4th at p. 272; § 30108.6.) "The LCP is submitted to the Coastal Commission for certification. (§ 30510, subd. (a); [citation].) In order to certify the LCP, the commission must find that it satisfies the requirements and policies set forth in chapter 3 of the Coastal Act [beginning with section 30200]. (§§ 30200, subd. (a), 30512, subd. (c); [citations].) Those 'Chapter 3 policies' thus represent the standards for judging the adequacy of an LCP. (§ 30200, subd. (a); [citations].) These policies are designed to protect certain identified resources, including recreation, sensitive habitat, and scenic resources. [§§ 30223, 30240, 30251].)" (McAllister, supra, 147 Cal.App.4th at p. 272.) " 'Once the Commission certifies the LCP and all implementing actions become effective, the Commission's authority over coastal development permits is 'delegated to the local government . . . .' (§ 30519, subd. (a).) . . . [T]he Commission has appellate jurisdiction to determine whether the development permit issued by the local government is consistent with the LCP and coastal access policies. (§ 30603, subd. (b).)" (Reddell v. California Coastal Com. (2009) 180 Cal.App.4th 956, 962-963; McAllister, supra, 147 Cal.App.4th at p. 272.)
Thus, " '[i]f ... the local government approves an application for a [coastal development permit], its action may be appealed to the commission by an applicant, any aggrieved person, or any two members of the commission. [Citation.] The commission has limited jurisdiction to hear the appeal.' [Citation.] . . . [T]he governing statute provides [in relevant part]: '(a) After certification of its [LCP], an action taken by a local government on a coastal development permit application may be appealed to the commission for only the following types of developments: [¶] (1) Developments approved by the local government between the sea and the first public road paralleling the sea or within 300 feet of the inland extent of any beach or of the mean high tideline of the sea where there is no beach, whichever is the greater distance.' (§ 30603, subd. (a)(1).) The grounds for such an appeal are 'limited to an allegation that the development does not conform to the standards set forth in the certified local coastal program or the public access policies set forth in this division.' ([§ 30603], subd. (b)(1), [referring to div. 20, the Coastal Act]; [citations.]" (McAllister, supra, 147 Cal.App.4th at p. 273; Schneider, supra, 140 Cal.App.4th at p. 1344-1345 [only grounds for appeal to the commission are that the locally approved development does not conform to the standards
" 'Any person undertaking any development in the coastal zone, with certain limited exceptions, is required to obtain a coastal development permit. This is in addition to any other permit required from any state, regional or local agency.' ([Citation]; § 30600, subd. (a).) Development is broadly defined for these purposes. [Citations.] Thus, for example, a lot line adjustment may constitute a development requiring a coastal development permit (CDP). [Citations.]" (McAllister, supra, 147 Cal.App.4th at p. 273.)
of a certified LCP or the Coastal Act's public access policies].)
The Coastal Act also provides for regular, periodic review of LCPs and procedures for various kinds of amendments to account for changed circumstances or administrative problems, for example. (§§ 30514, 30515, 30519, subd. (c), 30519.5.) In order for a local government to amend its LCP, it must follow the same procedures applicable to the initial adoption of an LCP and, as with an initial LCP, amendments are not effective until they are certified by the commission. (§ 30514, subds. (a), (b).)
" 'If an action is appealable, the commission must hear the appeal unless it determines no substantial issue exists with regard to the grounds for the appeal. (§ 30625, subd. (b)(2).)' [Citation.] . . . 'On appeal, the commission reviews the matter de novo, and may take additional evidence not received by the local government.' [Citation.] Thus, 'in effect, the Commission hears the application as if no local governmental unit was previously involved, deciding for itself whether the proposed project satisfies legal standards and requirements.' [Citation.] The resulting decision ' "takes the place of and completely nullifies the former determination of the matter." ' [Citation.]" (McAllister, supra, 147 Cal.App.4th at p. 274.)
B. Judicial Review
A person aggrieved by a Coastal Commission decision may seek judicial review of the decision within 60 days of finality by petition for writ of administrative mandate under Code of Civil Procedure section 1094.5. (§ 30801.) An aggrieved person includes the permit applicant as well as any person who participated in the permit hearing, informed the commission of his or her concerns, or for good cause was unable to do one of these things. (Ibid.)
In an administrative mandamus proceeding, the court's inquiry extends to whether there was a fair trial, or whether the agency acted without or in excess of jurisdiction or prejudicially abused its discretion. (La Costa Beach Homeowners' Assn. v. California Coastal Com. (2002) 101 Cal.App.4th 804, 814 (La Costa); Code Civ. Proc., § 1094.5, subd. (b).) Prejudicial abuse of discretion in the administrative mandamus context is established if the agency failed to proceed in a manner required by law, by, for example failing to follow the laws governing it or applying laws that are unconstitutional, or if the agency's order or decision is not supported by the findings or, in turn, the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).) "Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.[] In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record." (Code Civ. Proc., § 1094.5, subd. (c).)
Cases in which a court is authorized in administrative mandamus proceedings to make an independent judgment on the evidence are those involving fundamental or vested rights, a circumstance not presented here as permit decisions typically precede the vesting of rights. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Transcentury Properties, Inc. v. State of California (1974) 41 Cal.App.3d 835, 844 [court is authorized to make independent judgment on evidence when Commission's decision affects fundamental or vested right].)
Where an agency's jurisdiction involves the interpretation of a statute, regulation or ordinance, the issue whether the agency proceeded in excess of its jurisdiction is a question of law reviewed by the court de novo. (Schneider, supra, 140 Cal.App.4th at pp. 1333-1344; Gilliland v. Medical Board (2001) 89 Cal.App.4th 208, 219.) Similarly, the ultimate questions whether the trial provided by the agency was procedurally unfair or unlawful are questions of law, which the court also reviews de novo. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443; Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155 [whether procedures afforded by agency violated due process is pure question of law].) And to the extent a case involves interpretation of a statute or the application of law to undisputed facts, or the legal effect of undisputed facts, a court engages in independent review. (Usher v. County of Monterey (1998) 65 Cal.App.4th 210, 216, 219 [County did not proceed in manner required by law in that it failed to follow statutory mandate]; LT-WR, L.L.C. v. California Coastal Com. (2007) 152 Cal.App.4th 770, 781; Aries Dev. Co. v. California Coastal Zone Conservation Com. (1975) 48 Cal.App.3d 534, 545; Stermer v. Board of Dental Examiners (2002) 95 Cal.App.4th 128, 132-133 [independent judgment applied to issues of law concerning an agency's action]; TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1371 [to the extent administrative decision rests on statute or ordinance, matter presents question of law for court's independent review].)
But where a petitioner attempts to show abuse of discretion by demonstrating that an agency's findings do not support its decision or its findings are not supported by the evidence, a court proceeding in administrative mandamus "examines the whole record and considers all relevant evidence, including that evidence that detracts from" the agency's decision. (Alberstone v. California Coastal Com. (2008) 169 Cal.App.4th 859, 862 (Alberstone).) " 'Although this task involves some weighing to fairly estimate the worth of the evidence, that limited weighing does not constitute independent review where the court substitutes its own findings and inferences for that of the Commission. Rather, it is for the Commission to weigh the preponderance of conflicting evidence, as [the court] may reverse [the Commission's] decision only if, based on the evidence before it, a reasonable person could not have reached the [same] conclusion . . . .' [Citations.]" (Id. at p. 863.) The agency's decision is presumed to be supported by substantial evidence and the burden lies with the petitioner to show otherwise. (Ocean Harbor House Homeowners Assn. v. California Coastal Com. (2008) 163 Cal.App.4th 215, 227.) In determining whether the Commission's findings are supported by substantial evidence and whether the findings support the decision, any reasonable doubts must be resolved in favor of the Commission, which is the sole arbiter of the evidence and sole judge of witness credibility. (Paoli v. California Coastal Com. (1986) 178 Cal.App.3d 544, 550; Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970-971.)
"On appeal from the denial of a petition for writ of mandamus, our role is identical to that of the trial court with respect to the administrative record. That is, both the trial and appellate courts must determine whether the record is free from legal error. Thus, the trial court's conclusions and disposition of the issues are not conclusive on the court of appeal. [Citation.]" (Alberstone, supra, 169 Cal.App.4th at p. 863; La Costa, supra, 101 Cal.App.4th at pp. 814-815.) Similarly, on legal questions, the court of appeal is not bound by the trial court's determinations. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699; Donnellan v. City of Novato (2001) 86 Cal.App.4th 1097, 1103.)
IV. The Coastal Commission Did Not Abuse its Discretion by Measuring the Proposed Development For Consistency With the LCP and Not Section 30253 of the Coastal Act
Schreck and Forsland challenge the Coastal Commission's approval of the coastal development permit by contending that the project violates or is inconsistent with section 30253, subdivisions (a) and (b), which address the minimization of a new development's adverse impacts. This section is part of the Coastal Act but it is not included within the chapter 3 public access and recreation policies that are relevant to the exercise of the Commission's appellate jurisdiction where, as here, a local government has a certified LCP in place and the development is close to the ocean. (§§ 30603, subds. (a) & (b), 30200-30224 (chapter 3 public access and recreation policies).)
As noted, section 30253, subdivision (a) provides that new development must "[m]inimize risks to life and property in areas of high geologic, flood and fire hazard." Schreck and Forsland contend that the record is replete with evidence of hazards imposed by this development in this geographic area, citing only evidence that supports the contention that site conditions essentially preclude any safe development. This evidence includes the staff geologist's isolated conclusion that hazard avoidance by no development on this site would be preferable to the hazard mitigations imposed as conditions to development, despite his ultimate conclusion that "this parcel can be developed safely within the parameters of the LCP." Schreck and Forsland thus contend that there is evidence in the administrative record that this project fails to minimize risks to life and property, in violation of section 30253, subdivision (a).
As also noted, section 30253, subdivision (b) provides that new development must "[a]ssure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would significantly alter natural land forms along bluffs and cliffs." Schreck and Forsland assert that "[t]here should be no question that by requiring approximately 1,250 cubic yards of grading, ... this project significantly contributes to erosion, destruction of the site and significantly alters natural land forms along the bluffs and cliffs." They further contend that this structure is itself a "protective device" within the meaning of section 30253, subdivision (b), a factual conclusion not contained within the Commission's findings, simply because its design is "wholly dependent on protective devices in its construction" such as the use of reinforced concrete, retaining walls, and steel and concrete frames. But there is substantial evidence in the record that a "protective device" as used in this section does not refer to safety measures inherent in a structure's design, such as its foundation and structural requirements, but rather to "structures whose sole purpose is to protect another separate structure. Protective devices include concrete armored bluffs, sea walls, revetments, rip rap, [separate] retaining walls and deflection walls. None of these structures is proposed here." Schreck and Forsland however contend that there is evidence in the administrative record that the development violates section 30253, subdivision (b).
Whether or not these contentions would prevail under substantial evidence review, they are irrelevant as a matter of law to our inquiry into whether the Coastal Commission abused its discretion. This is because the development's conformity to section 30253 of the Coastal Act was not within the permissible scope of consideration by the Coastal Commission as it exercised its appellate jurisdiction over the Collins' application for a coastal development permit. Schreck and Forsland's argument that the development violates section 30253 betrays a fundamental misunderstanding of the applicable substantive law by which both the Coastal Commission and we are bound. As we have previously observed and as the Commission correctly argues, its limited role when taking jurisdiction over this permit application was to ascertain the project's consistency with the LCP and the public access and recreation policies of the Coastal Act, which do not include section 30253.
The Coastal Act provides at section 30600, subdivision (a) that before certification of a locality's LCP, the Commission has vested authority for issuing coastal development permits. While exercising this authority, under section 30604, subdivision (a), the Commission reviews applications for consistency with all of the policies located within chapter 3 of the Coastal Act. But the Act delegates primary permitting authority to local governments through the creation of LCPs, which consist of land use plans, zoning ordinances, and other implementing actions and which the Commission certifies for consistency with the resource protection policies contained within chapter 3 of the Coastal Act. (§§ 30604, subd. (a), 30108.6, 30512, 30513; Charles A. Pratt Construction Co. v. California Coastal Com. (2008) 162 Cal.App.4th 1068, 1075 (Pratt).)
Once a local government has a certified LCP in place, permitting authority is delegated to the local government in the first instance. (§§ 30519, subd. (a), 30600, subd. (d); Pratt, supra, 162 Cal.App.4th at p. 1075.) But certain types of local government permitting decisions may be appealed by aggrieved parties to the Commission. (§§ 30603, 30625.) When this occurs, there is a two-step process by which the Commission first considers whether the local decision raises an issue of substantial compliance with the LCP or the public access and recreation policies of the Coastal Act. The Commission must hear an appeal unless it determines that it does not raise a substantial issue. If the Commission determines that a substantial issue is raised, it then conducts a de novo review of the permit application. (§ 30625, subd. (b)(2); Coronado Yacht Club v. California Coastal Com. (1993) 13 Cal.App.4th 860, 867.)
When conducting its de novo review, the Commission is limited to determining whether the project conforms to the LCP and if so, a permit must be issued. (§§ 30604, subd. (b), 30603, subd. (b)(1).) But for projects close to the ocean such as this one, the Commission also considers whether the proposed development is consistent with the public access and recreation policies of chapter 3 of the Coastal Act. (§§ 30604, subds. (b) & (c); 30603, subd. (b)(1).) These policies are located at sections 30210 through 30224 and do not include section 30253.
This detailed and thorough statutory scheme establishes the scope of the Commission's review and limits its authority over coastal development applications, both before and after the local government has an LCP in place. By its review and approval of the Collinses' application, the Commission here stayed within the boundaries of its authority and jurisdiction, properly measuring the adequacy of the application against the LCP and public access and recreation policies of the Coastal Act. The Commission therefore did not act without or in excess of its jurisdiction and did not abuse its discretion by failing to proceed in the manner required by law, the applicable tests.
Finally, Schreck and Forsland contend that in the absence of an applicable LCP provision that parallels the provisions of section 30253, the Commission as "overseer of local coastal planning efforts" should have imposed the requirements of section 30253 to fill the vacuum under the authority of section 30200, subdivision (a). This subdivision establishes, except as otherwise provided, the substantive standards by which the adequacy of LCPs and the permissibility of proposed developments are determined. But the statutory scheme we have outlined above excepts the circumstances of this case from section 30200, subdivision (a)'s purview. And although, as Schreck and Forsland note, McAllister cites section 30200, subdivision (a), it does so in the context of discussing the Coastal Act's general framework while later expressly acknowledging the limited grounds for appeal to the Coastal Commission once a local government has a certified LCP in place. (McAllister, supra, 147 Cal.App.4th at pp. 272-273.)
For the reasons stated, we conclude that that the Coastal Commission did not abuse its discretion by declining to use section 30253 of the Coastal Act as the standard against which the Collinses' proposed development should have been measured, and by not denying approval of the coastal development permit on the asserted basis that the development violated this section. It follows that Schreck and Forsland were not entitled to relief in mandate in the trial court.
DISPOSITION
The judgment is affirmed.
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Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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Premo, Acting P.J.
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Elia, J.