Opinion
No. A153582.
04-14-2021
JOHN D. SWEENEY et al., Plaintiffs and Respondents, v. SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION et al., Defendants and Appellants.
[Modification of opinion (62 Cal.App.5th 1; ___ Cal.Rptr.3d ___).]
THE COURT.—IT IS ORDERED that the opinion filed herein on February 18, 2021, be further modified as follows:
At page 3 [62 Cal.App.5th 9, advance report, 2d full par., line 15], in the final statutory citation in the paragraph that begins on page 2, "66637" is deleted, and "66638" is inserted in its place.
At page 3 [62 Cal.App.5th 9, advance report, 3d full par., line 5], in the case citation at the end of the first full paragraph, "see also (Sustainability" is deleted, and "see also Sustainability" is inserted in its place.
At page 7 [62 Cal.App.5th 12, advance report, 2d full par., line 5], in the second citation in the first full paragraph, "Pub. Resources Code, § 29601" is deleted, and "Pub. Resources Code, § 29602" is inserted in its place.
At page 9 [62 Cal.App.5th 13, advance report, 2d full par., line 8], in the last citation of the paragraph that begins on page 8, "29520" is deleted, and "29501, subd. (b)" is inserted in its place.
At page 9 [62 Cal.App.5th 13, advance report, 3d full par., lines 2-7], the second sentence of the first full paragraph is revised to read: "The trial court set aside the BCDC Order because it found Respondents were exempt from the marsh development permit requirement based on the "repair exception" in Public Resources Code section 29508, subdivision (b) (Section 29508(b)) and the exception for work consistent with a site's component of the local protection program in Public Resources Code section 29501.5 (Section 29501.5)."
At page 11 [62 Cal.App.5th 14, advance report, 4th full par., line 6, continuing on to page 15, 1st partial par., lines 1-2], the first full sentence on the page is revised to read: "Under this provision, work undertaken at a site that is consistent with a site's component of the local protection program, or IMP, does not require a marsh development permit."
[62 Cal.App.5th 873f]
At page 11 [62 Cal.App.5th 15, advance report, 1st full par., lines 1-2], the first sentence of the first full paragraph is revised to read: "The parties agree that the Site's component of the local protection program is the Mason IMP that was certified in 1984."
At page 12 [62 Cal.App.5th 16, advance report, 1st partial par., lines 4-6], the last sentence of the first full paragraph is revised to read: "Many, if not most, of Sweeney's changes had no reasonable connection to the management contemplated in the Mason IMP, and thus were inconsistent with the Site's component of the local protection program."
At page 13 [62 Cal.App.5th 16, advance report, 2d full par., lines 11-15], the fifth sentence of the second full paragraph is revised to read: "BCDC's Enforcement Committee determined that the placement of fill to close each of the tidal breaches of the former levee should be treated as single violation rather than seven and on this basis reduced the proposed penalty to $772,000, which was the penalty ultimately adopted by BCDC."
At page 14 [62 Cal.App.5th 17, advance report, 1st full par., line 1], in the first sentence of the second full paragraph, "Mc-Ateer Petris" is deleted, and "McAteer-Petris" is inserted in its place.
At page 16 [62 Cal.App.5th 18, advance report, 1st full par., lines 4-6], the fourth sentence of the first full paragraph is revised to read: ""In determining whether the decision is supported, we require findings to `bridge the analytical gap between the raw evidence and ultimate decision or order.'"
At page 21 [62 Cal.App.5th 21, advance report, 1st full par., line 13], in the first citation in the paragraph that begins on page 20, "11332" is deleted, and "11322" is inserted in its place.
At page 24 [62 Cal.App.5th 24, advance report, 1st partial par., line 7], in the third citation in the third full paragraph, "11227" is deleted, and "11327" is inserted in its place.
At page 25 [62 Cal.App.5th 24, advance report, 1st partial par., line 9], in the first citation on the page in the paragraph that begins on page 24, "11229" is deleted, and "11329" is inserted in its place.
At page 27 [62 Cal.App.5th 25, advance report, 2d full par., lines 17-21], in the paragraph that begins on page 26, the bracketed statement following the citation to Pleasanton, supra, 211 Cal.App.4th at p. 533, is revised to read: "[no authority says "agency decisionmaking body is precluded from soliciting or receiving a written analysis and recommendation from the
[62 Cal.App.5th 873g]
agency's prosecuting attorney delivered to it as part of a public agenda packet along with the adversary's opposing analysis and recommendation"]"
At page 29 [62 Cal.App.5th 27, advance report, 2d full par., lines 7-9], the third sentence in the second full paragraph is revised to read: "There is no requirement that hearings last for any particular amount of time (see Cal. Code Regs., tit. 14, § 11327), and reasonable time limitations are necessary and inevitable."
At page 30 [62 Cal.App.5th 27, advance report, 3d full par., line 5], in the first citation on the page in the paragraph that begins on page 29, "11335" is deleted, and "11332" is inserted in its place.