Judge: James C. Chalfant, Case: 22STCP03661, Date: 2024-04-09 Tentative Ruling

Case Number: 22STCP03661    Hearing Date: April 9, 2024    Dept: 85

Thus, the LCP consists of a land use plan (“LUP”)[2] and the implementing actions of zoning ordinances, district maps, and other implementing actions (“LIP”).  Yost v. Thomas, supra, 36 Cal.3d at 571-72.  These may be prepared together or sequentially, and they may be prepared separately for separate geographical areas or “segments” of a local coastal zone.  §30511. 

Under normal circumstances, the local government drafts an LCP in accordance with Commission guidelines (See §§ 30501, 30503), and the local government’s governing body adopts the proposed LCP as conforming with provisions of the Coastal Act.  §30510.  The local government then submits the LCP to the Commission for review and certification.  §30511(a).   In making this determination, the Commission reviews the LUP for conformity with the policies in the Coastal Act.  City of Chula Vista v. Superior Court, (1982) 133 Cal.App.3d 472, 481; §§ 30500-26.  After the required public hearing(s), it may certify or not certify all or a portion of the LUP.  §§ 30512, 30512.2.  If the Commission does not certify the LUP, it must provide written reasons for not certifying and may suggest changes to the local government, that if enacted, would result in certification of the LUP. The Commission does not normally have the authority to change the LUP through its own action or require the local government to do so.  Ibid.

Once the LUP is certified, the Commission reviews the LIP to determine whether those items are sufficient to implement the policies of the certified LUP.  §30513.  If the Commission determines the LIP provisions are adequate, it certifies the LCP. As with the LUP, if the Commission denies certification of the LIP, it may suggest modifications that, if adopted, would result in certification of the LCP.  Ibid.  The Commission has no authority to impose either an LUP or a LIP on local governments.  Ibarra v. California Coastal Comm., supra, 182 CaI.App.3d at 696.

2. CDPs

The Coastal Act requires, with narrow exceptions, a CDP for any development in the coastal zone in addition to any other permit required.  §30600.  The authority to issue a CDP is initially vested in the Commission.

a. The City’s Authority

A local government may obtain authority to issue a CDP in different ways.  The authority to issue CDPs automatically passes from the Commission to the local government once the LCP is certified.  §30519(a).  Prior to certification of its LCP, a local government may accept the authority and voluntarily adopt necessary procedural ordinances for processing CDPs.  §30600(b).  This option is discretionary with the local government, and an applicant must obtain a CDP from the Commission if the local government’s LCP has not been certified and it has not chosen this option.  §30600(c). The Coastal Act expressly recognizes the need to "rely heavily" on local government "[t]o achieve maximum responsiveness to local conditions, accountability, and public accessibility .... " §30004(a); Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 794. 

The City does not have a certified LCP, but it does have a Venice LUP that was certified in 2001.  The Venice LUP states that “Venicie’s unique social and architectural diversity should be protected” and that the City should “[en]sure that the character and scale of existing single-family neighborhoods is maintained. 

The City assumed primary authority from the Commission to issue CDPs pursuant to section 30600(b) and (c).  All land west of Lincoln Boulevard in Venice, California is located in the "coastal zone" established by the Coastal Act.  §§ 30001.5; 30103(a).  The City has had sole authority to process CDP applications in the Venice coastal zone single permit jurisdiction.

b. Application for a CDP

CDP applications for properties in the Venice coastal zone are submitted to the City’s Planning Department or the City Engineer.  LAMC §12.20.2(D).  Once the Planning Department approves or denies the permit, the decision may be appealed to the pertinent City Planning Commission.  See LAMC §12.20.2(H).

c. Appeal to the Commission 

Whether or not there is an appeal to the Planning Commission, the City's CDP may be appealed to the Commission.  §3060(a).  Because the City does not have a certified LCP, any person, including the executive director or two members of the Commission, may appeal the City's issuance of a CDP within 20 working days. 14 CCR §13332.  The grounds for appeal are limited to whether the project conforms with the Chapter 3 policies of the Coastal Act.  §30604(a). 

The appeal is a two-step process.  First, the Commission decides whether the appeal raises a "substantial issue" of compliance with Chapter 3 policies.  §30625(b); 14 CCR §13115(b).  If the Commission decides that the appeal raises a substantial issue, then the City's CDP is nullified, and the Commission conducts a de novo review of the CDP.  §§ 30621(a), 30625(b)(2); Kaczorowski v. Mendocino County Board of Supervisors, (“Kaczorowski”) (2001) 88 Cal.App.4^th 564, 569.

On de novo review, the Commission takes jurisdiction over the project and decides whether to approve or deny the CDP.  14 CCR §13115.  The Commission hears the CDP application as if no local governmental unit was previously involved, “deciding for itself whether the proposed project satisfies legal standards and requirements."  Kaczorowski, supra, 88 Cal.App.4th at 569.  Once the Commission has assumed jurisdiction, it retains jurisdiction to consider modifications to the project.  See e.g., Security National Guaranty, Inc. v. California Coastal Commission, (2008) 159 Cal. App. 4th 402, 408.

Section 30335.1, entitled “Employees to give procedural assistance”, provides as follows: “The commission shall provide for appropriate employees on the staff of the commission who will assist applicants (and other interested parties) with matters which are before the commission for action.  The assistance rendered by those employees shall be limited to matters of procedure and shall not extend to advice on substantive issues arising out of the provisions of this division, such as advice on the manner in which a proposed development might be made consistent with the policies specified in Chapter 3 (commending with Section 30200).”

3. Pertinent Coastal Act Policies

Permitted development shall be designed in part to be “visually compatible with the character of surrounding areas”.  §30251.

New development shall, inter alia, protect communities and neighborhoods that have been designated Special Coastal Communities.  §30253.

“[T]he incremental effects of an individual project shall be reviewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” §30604(a).

In approving a CDP, the Commission must make a finding that the approval of the permit will not prejudice the ability of the City to prepare an LCP that is in conformity with Chapter 3. §30604(a).

4. Pertinent Venice LUP Policies

            Special Coastal Communities are “coastal resources” under the Coastal Act.  Venice’s unique social and architectural diversity should be protected as a Special Coastal Community.  Venice LUP Policy I.E.1 (AR 11).

            “New development within the Venice Coastal Zone shall respect the scale and character of the community development.  Buildings which are of a scale compatible with the community (with respect to bulk, eight, buffer and setback) shall be encouraged.  All new development and renovations should respect the scale, massing, and landscape of existing residential neighborhoods.”  Venice LUP Policy I.E.2 (Scale) (AR 11).

            “[V]aried styles are architecture are encouraged with building facades which incorporate varied planes and textures while maintaining the neighborhood scale and massing.”  Venice LUP Policy I.E.3 (Architecture) (AR 11).

D. Statement of Facts[3]

Real Parties-in-Interest Matthew Boyd and Alexandra Guglielmino (also referred to herein as “Applicants”) are husband and wife and own the single-family residence located at 822 Angelus Place, Los Angeles, California (the “Property”).  AR 204.  Angelus Street is 24 feet wide and is a “small-scale and pedestrian-oriented street”.  AR 870, 484.  The Property is a 4212 square foot lot which is similar to the size of the other lots in the neighborhood.  AR 490-91. The neighborhood and the block where the Property is located primarily has single-family dwellings, characterized as “modest homes” and “bungalows.”  AR 473, 434.  Of the 26 homes in the vicinity, 21 are one-story and five are two-story.  AR 13.

Real Party-in-Interest Robert Thibodeau (“Thibodeau”) serves as Applicants’ agent for the Project, which is the demolition of a one-story 816 foot home, garage, and accessory structure, and the construction of a new 2795 square foot residence with an attached two-car garage, one additional on-site parking space, swimming pool and roof deck on a 4212 square foot lot.  AR 1.  The Project would be more than double the size of the average house (1277 square-feet) for the 26 homes in the vicinity.  AR 490, 491.

On or about July 9, 2020, Thibodeau submitted to the City a CDP application for the Project.  AR 53.  After a public hearing, the City issued a CDP for the Project on August 17, 2021. AR 254.  On September 8, 2021, the City notified the Commission of its determination.  AR 254.

1. The Substantial Issue Appeal

On October 4, 2021, Stewart Oscars appealed the CDP to the Commission.  AR 522-44.  He argued in part that the Project fails to meet Venice LUP Policies I.E.2 (Scale) and I.E.3 (Architecture) because it is inconsistent with the scale, massing, and character of the neighborhood.  AR 473.

On November 17, 2021, the Commission held a hearing on whether the appeal raised a substantial issue. AR 472.  The Commission staff report stated that staff believed there was a substantial issue with respect to the Project’s consistency with Chapter 3 policies.  AR 473.  Staff conducted an independent survey of the area surrounding the Property, covering 26 lots along both sides of Angelus Place between Grandview and Oakwood Avenues.  AR 473.  Staff believed the Project to be inconsistent with Venice LUP Policies I.E.1 (General), I.E.2 (Scale) and I.E.3 (Architecture).  AR 473.  The staff report noted that the City-approved Project fronting Angeus Place is 32 feet wide and did “not offer a stepped back façade or other articulated features to reduce its massing, which is uncommon in the area, thereby creating a visual impact highly visible to pedestrians walking by the lot.”  AR 473.  The size of the proposed home was inconsistent with recent City action and the average size of homes in the survey area.  AR 473.  The Project’s size and massing were not consistent with the existing community character, which could prejudice the City in preparing an LCP in the future.  AR 473.  The Commission staff concluded that the appeal raises a substantial issue of the Project’s consistency with Chapter 3 policies.  AR 474.

The staff report noted that Venice LUP Policies I.E.2 and I.E.3 encourage a variety of styles and discourage focus on subjective judgments on preferred architectural style.  AR 484.  Hence, the Commission has used height limits, setback requirements, and bulk to analyze the mass and scale of proposed structures to determine neighborhood compatibility.  AR 484.  The Project stated that all five of the existing two-story homes have stepped back facades and a partial second level addition towards the rear of the lots whereas the Project lacked articulation and was not stepped back from Angeles Place.  AR 484.  While the City provided some analysis regarding character and scale of the Project, it was remiss in not factoring in the home’s “visual impact on the small-scale and pedestrian-oriented street.”  AR 484.

On November 17, 2021, the Commission voted to find that the Project raises a substantial issue.  AR 666.  By doing so, the Commission accepted Stewart Oscar’s appeal and took jurisdiction over the CDP application for de novo review.  AR 2.  The City-issued CDP then became void.  AR 9.

2. The Project Revisions

After the substantial issue appeal determination, the Applicants and Commission staff had meetings and emails regarding the revisions to the Project.  AR 723, 724, 728, 729, 735, 748.  Staff advised the Applicants what changes would impact Staff’s willingness to “recommend approval of the revised project” to the Commission.  AR 729.

The Applicants modified the Project to address the issues raised.  The front yard setbacks were increased to 20 feet from the 18-foot setback prevailing on the block and permitted by the LAMC.  AR 2.  The second story setback was increased a variable four to six feet, making the total front setback 22 to 24 feet.  AR 2.  The building height was decreased from 30 feet to a variable of 28 ½ to 29 ½ feet.  AR 2.  The rear setback increased from 15 feet by another eight inches to 15 feet, eight inches, and one side yard setback decreased from five feet, eight inches to four feet.  AR 2.  The Applicants’ modified Project added articulation and variation to the façade to reduce the mass of the residence fronting Angelus Place.  AR 2.

            3. The Staff Report for the De Novo Appeal

On July 28, 2022, the Commission staff report was issued for the de novo appeal hearing scheduled to be heard on August 11, 2022.  AR 1-20.  The staff report included plans for the Project as modified.  AR 706-11.  

The staff report stated that the Commission has previously found that Venice is a Special Coastal Community whose character, including its unique social and architectural diversity protected by the Venice LUP, should be protected under section 30253(e).  AR 12.  The Venice LUP was designed to protect Venice’s unique character, primarily through the use of objective building standards intended to limit project size and bulk.  AR 13.  Nevertheless, the Venice LUP recognized that there would be some development of “new modern homes” – i.e., larger homes – although they would be limited by the small lot size in Venice.  AR 13.  Given the specific conditions surrounding the Project site and the diverse development patterns of Venice, it was appropriate to assess the Project for conformity with Chapter 3 of the Coastal Act using the certified Venice LUP as guidance.  AR 13. 

Venice LUP Policy I.A.6 restricts lots smaller than 5,000 square feet to a maximum density of two units per lot.  AR 11.  Venice LUP Policy I.E.1 notes that Venice’s “architectural diversity” should be protected.  AR 11.  Venice LUP Policy I.E.2 states new development should respect the scale and character of the community and encourages buildings “which are of a scale compatible with the community (with respect to bulk, height, bugger and setback).”  AR 11.  Additionally, Venice LUP Policy I.E.3 encourages varied architecture “with building facades which incorporate varied planes and textures while maintaining the neighborhood scale and massing.”  AR 11.

The Project is a residential home to replace an existing home on a street with 21 residential structures.  AR 9, 15, 22-23, 40.  The Project had been modified but its 2795 square foot size had not changed from the City-approved residence.   AR 10.  Staff reviewed the revised Project plans and the 26 lots on both sides of Angelus Place between Grandview and Oakwood Avenues.  AR 13.  The Project would maintain the density of one single-family home on the lot, which is consistent with the surrounding area.  AR 13. 

The Venice LUP does not provide setback standards but does require yards to be consistent with neighborhood scale and character.  AR 13.  The Project’s front yard setback is 18-20 feet, consistent with the prevailing front yard setback of 18 feet in the area.  AR 13.  The Project’s side yard setbacks are four feet, in compliance with the City’s minimum of three feet for lots less than 50 feet wide (the Project lot is 32 feet wide).  AR 13.  The Project’s rear yard setback is 15 feet and in compliance with the City’s setback requirements.  AR 13.  Likewise, the roof pitches reach up to 29.5 feet in height, which is below the roof height limit of 30 feet and the roof access structure reaches a maximum height of 33 feet, which is also consistent with the limits set in the Venice LUP.  AR 14.

The 2795 square-foot residence would be consistent with the 26 residences in the area, which range from 768 to 2937 square foot, with one duplex larger than the Project.  AR 14.  The Project would be the largest single-family residence in the survey area and the next largest residence is 1917 square feet, 878 square feet smaller than the Project.  AR 14. 

The two-story Project would be consistent with the surrounding 21 one-story and five two-story structures.  AR 14.  All five of the existing two-story structures have stepped back facades and a partial second level of second story addition toward the rear of the lot.  AR 14.  The Project is designed with an articulated façade to break up the massing.  AR 14.  This is true of the visible mass from the side as well as the front.  AR 14.  The mix of architecture on the block indicates that the Project façade and varied roof would be compatible with the existing variety of planes and textures required by the LUP.  AR 14.

The Project plans have been revised since the City-approved development and therefore the Commission would impose Special Condition 1 requiring the Applicants to comply with all City requirements.  AR 15.

            The staff report weighed the cumulative impacts of the Project.  AR 15-17.  In analyzing cumulative impacts, the Commission looks both at historical data and potential future development in the area.  AR 15.  The Commission staff reviewed over two dozen lots in the survey area and noted: (1) the Commission has not entered a final decision on any CDP applications for projects on Angelus Place since 2001; (2)  the City has approved size increases of four residential structures “with total sizes ranging from 1,570 square feet to 2,323 square feet”; (3) the City approved two new residential structures at a square footage of 2,795 square feet and 3,437 square feet, 21 residential structures ranging in size from 768 square feet to a duplex of 2,937 square feet, and one duplex larger than the Project; and (4) development in the area is occurring at a slower pace than other areas of Venice.  AR 15. 

With regard to future development, there are two other residential homes currently proposed on Angelus Place: a two-story 3,437 square foot home and a two-story 2,660 square foot single-family home.  AR 16.  Recent actions demonstrate that homes larger than the existing older homes will continue to be proposed in the area.  AR 16.  Even so, the Project would not set a precedent for overall size of future development.  The variation and articulation to the Project façade will prevent the size and massing from causing a significant adverse cumulative effect on the surrounding development and Venice as a Special Coastal Community.  AR 16. 

The Venice LUP recognizes there will be development of the size of homes over time, and that development is cabined by building standards, lot setbacks, lot size, and limits on rooftop decks, all designed to protect Venice’s character.  AR 16.  The Project is consistent with these standards and is unlikely to contribute to any adverse cumulative effects on community character, mass, and scale, and visual resources of the area.  AR 16-17.  Staff recommended that the Commission approve the CDP with conditions.  AR 1.

            4. Comments and the Commission’s Decision

On August 4 and 5, 2022, Appellant Stewart Oscars submitted written comments to the staff report.  AR 714-16.  On August 5, 2022, Petitioner Citizens submitted written comments to the staff report.  AR 717-18.

As reflected by Ex Parte Communication Disclosure Forms, Petitioner’s representatives met directly with Commissioner Uranga on August 5, 2022 and Commissioner Brownsey on August 8, 2022 to orally express Petitioner’s concern over the Project. AR 831, 833.  

On August 9, 2022, the Commission staff issued an Addendum containing responses to these comment letters. AR 813.  

On August 11, 2022, following a public hearing on the de novo appeal, the Commission found that the modified Project complies with Chapter 3 of the Coastal Act and approved the CDP with conditions.  AR 890.

            E. Analysis

            Petitioner Citizens contends that the Commission (1) made findings not supported by substantial evidence, (2) failed to properly consider the Project’s cumulative impacts, (3) violated section 30335.1 and therefore did not proceed in the manner required by law, and (4) did not provide a fair public hearing. 

1. Section 30335.1

Section 30335.1, entitled “Employees to give procedural assistance” provides as follows: “The commission shall provide for appropriate employees on the staff of the commission who will assist applicants (and other interested parties) with matters which are before the commission for action.  The assistance rendered by those employees shall be limited to matters of procedure and shall not extend to advice on substantive issues arising out of the provisions of this division, such as advice on the manner in which a proposed development might be made consistent with the policies specified in Chapter 3 (commending with Section 30200).”

Petitioner argues that the meaning of section 30335.1 is plain.  Commission staff shall not provide advice on substantive issues.  Yet, Commission staff did precisely that by giving the Applicants advice on how the Project might be made consistent with Chapter 3 policies and the Venice LUP.  AR 723, 728, 729, 735, 748, 877.  Pet. Op.Br. at 14-15.[4]

According to Petitioner, the Commission’s violation of section 30335.1 means that the staff's compatibility analysis was missing the public's input, making the public hearing on the de novo appeal an unfair fait accompli for the developer.  The Coastal Act and constitutional requirements require that the public be afforded adequate notice and a fair hearing on CDP appeals.  §30320(a) (“principles of fundamental fairness and due process of law require that the commission conduct its affairs in an open, objective, and impartial manner.”); see Horn v. County of Ventura, (1979) 24 Cal. 3d 605, 618 (notice must occur sufficiently prior to final decision to permit a meaningful hearing) (citations omitted).  Petitioner and the public had no notice or opportunity to provide input on the behind-the-scenes design changes made by staff and the Applicants, and staff’s August 9, 2022 Addendum -- issued two days before the de novo hearing -- dismissed the objector letters that argued the modified Project is still too massive.  Petitioner and the public were blind-sided at the de novo hearing by Commission staff’s presentation based these private meetings and emails designed to get the Project approved.[5]  The Commission’s violation of section 30335.1 prevented a fair hearing for Petitioner and the public, which is a failure to proceed in the manner required by law.  See Sierra Club v. State Bd. of Forestry, (1994) 7 Cal.4th 1215, 1236 (prejudice is presumed when agency violates mandatory procedures).  Pet. Op. Br. at 15-16.

The Commission’s opposition disagrees, contending that section 30335.1 only applies when a matter is before the Commission for action at a public hearing.  During the CDP process leading up to a Commission hearing, staff may work with applicants and local governments in developing the staff recommendation.  The Commission explains that a matter is before the Commission “for action” only when the Commission considers it at a noticed public hearing.  See §30621 (requiring de novo public hearing on CDP appeal).  The Legislature’s stated intent in enacting section 30335.1 was for interested parties to receive “appropriate assistance to facilitate their participation in the planning and [CDP] processes….”  Stats. 1979, c. 919, §19.  At the public hearing, section 30335.1 limits staff’s assistance to matters of procedure; it does not allow staff to advise how to make a project consistent with the Coastal Act.  This makes sense because Commission staff will have prepared and issued a staff report before the hearing that analyzes whether the matter is consistent with the Coastal Act and includes a staff recommendation.  14 CCR §§ 13057, 13059.  With a staff recommendation already made public, any staff advice at the hearing should be limited to procedural issues.  Opp. at 17.

            a. Statutory Interpretation

The parties’ dispute requires interpretation of section 30335.1.  In construing a statute, a court must ascertain the intent of the legislature so as to effectuate the purpose of the law.  Brown v. Kelly Broadcasting Co., (1989) 48 Cal.3d 711, 724.  The court first looks to the language of the statute, attempting to give effect to the usual, ordinary import of the language and seeking to avoid making any language mere surplusage.  Brown v. Kelly Broadcasting Co., (1989) 48 Cal 3d 711, 724.  Significance, if possible, is attributed to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.  Orange County Employees Assn. v. County of Orange, (1991) 234 Cal.App.3d 833, 841.  The statutory language must be harmonized with provisions relating to the same subject matter to the extent possible.  Id.  “’The statute's words generally provide the most reliable indicator of legislative intent; if they are clear and unambiguous, ‘[t]here is no need for judicial construction and a court may not indulge in it. [Citation.]’” MCI Communications Services, Inc. v. California Dept. of Tax & Fee Administration, (“MCI”) (2018) 28 Cal. App. 5th 635, 643.

            If a statute is ambiguous and susceptible to more than one reasonable interpretation, the court may resort to extrinsic aids, including principles of construction and legislative history.  MacIsaac v. Waste Management Collection & Recycling, Inc., (2005) 134 Cal.App.4th 1076, 1082 (quoting Riverview Fire Protection Dist. v. Workers’ Comp. Appeals Bd., (1994) 23 Cal.App.4th 1120, 1126). 

Where ambiguity still remains, the court should consider “reason, practicality, and common sense.”  Id. at 1084.  This requires consideration of the statute’s purpose, the evils to be remedied, public policy, and contemporaneous administrative construction.  MCI, supra, 28 Cal.App.5^th at 643.  The enactment must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intent of the lawmakers, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity.  Lungren v. Deukmejian, (1988) 45 Cal. 3d 727, 735.  Finally, statutes are not construed in isolation and every statute must be read and harmonized with the statutory scheme.  People v. Ledesma, (1997) 16 Cal.4^th 90, 95.  

b. The Statute Is Ambiguous

The portion of section 30335.1 at issue is in the first sentence, which permits appropriate staff employees to assist applicants (and other interested parties) only on procedural issues for “matters which are before the commission for action”.  The only time a matter is before the Commission “for action” with both the applicant and other interested parties present is at a public hearing.  As the Commission argues, this fact suggests that the procedural limitation in section 30335.1 applies only at that time.  On the other hand, Petitioner’s interpretation – that the procedural limitation applies to any matter for which the Commission will make a decision – also is reasonable.  The statute is ambiguous.

c. Section 30335.1’s Purpose

The problem with Petitioner’s interpretation is that section 30335.1’s language must be read in context, considering nature and purpose of the statutory scheme.  Hunt v. Superior Court, (1999) 21 Cal.4th 984, 1000. 

In most land use matters, the applicant appears before the decision-maker -- sometimes at a public hearing -- for a determination of its right to an entitlement.  Interested parties may or may not be allowed to appear at the hearing.  To properly evaluate the applicant’s right to an entitlement, that person or entity necessarily must be able to contact the decision-maker’s staff.  Without this back and forth of negotiation, the required hearing for land use entitlements would be time consuming and be continued repeatedly while new proposals are made.  That is not the way land use matters work.

Contrary to Petitioner’s argument, the applicant has a due process right with respect to the entitlement but other interested parties generally do not.  Due process requires a protected life, liberty, or property interest to be at stake.  Cook v. City of Buena Park, (2005) 126 Cal.App.4^th 1, 6 (quoting Cleveland Board of Education v. Loudermill, (1985) 470 U.S. 532, 538).  Interested neighbors usually do not have a property interest at stake at another property owner’s entitlement hearing.  The hearing is not adversarial, and the public’s right to appear and be heard, either through written comments or orally at the hearing, is statutory in nature.  Just as the applicant does, the public may communicate with the decision-maker’s staff before the public hearing.

The Commission’s interpretation of section 30335.1 is consistent with this general procedure for land use entitlements, and specifically the Coastal Act scheme for CDPs.  Section 30335.1 is a procedural statute concerning the Commission’s determination of CDP consistency with Chapter 3 policies.  The Commission has trained, expert staff tasked with making recommendations for the Commission’s action.  In order to develop such recommendations, staff must work with an applicant prior to the hearing to craft an acceptable entitlement.  Petitioner’s interpretation of section 30335.1 would unduly limit staff’s ability to advise and work with applicants prior to the public hearing.  The Commission staff could never work with an applicant or local government[6] regarding either a CDP or a LCP.  As the Commission’s opposition argues, the implication of Petitioner’s argument is that the Legislature created a complex regulatory program and yet mandated that the Commission staff could not provide substantive assistance to applicants or local governments as they navigate through that regulatory program.  There is no evidence that the Legislature intended to create such an unresponsive agency.  Opp. at 18.

This purpose of section 30335.1 is consistent with another Coastal Act provision, section 30319, which requires applicants to provide the Commission with the names and addresses of all persons, who for compensation, will be communicating with the Commission or staff on the applicant’s behalf.  This requirement is not limited to the public hearing and applies to all communications after an application is made.  There would be little reason for this requirement if staff communication with the applicant was limited to the public hearing.  Thus, the Legislature contemplated that the Commission, through staff, would communicate with applicants regarding their applications throughout the application process.

Petitioner describes the impact of its interpretation on the conduct of Commission business as “overblown” and an affront to the principles of public participation and impartiality.  See §30325 (nothing in Coastal Act prevents any interested person from testifying or submitting comments). Section 30335.1 limits staff’s substantive advice to CDP applicants; it does not limit an applicant’s submittals to staff.  Reply at 3-4.  Petitioner is not asking for an order that the Commission allow the public to participate in the application process in any particular manner, but rather that the Commission follow the law prohibiting staff from communicating substantive advice to applicants.  Reply at 3, n. 7.

Petitioner is incorrectly implying that the Commission’s public hearing is adversarial.  It is not.  The Commission must hear from the public in addressing a de novo appeal, but the Commission can properly evaluate a CDP application only if there has been back and forth between its expert staff and the applicant.  As such, the purpose of section 30335.1 and the statutory scheme only can be effectuated by the Commission’s interpretation.  See Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at 724.[7]

Petitioners argue that, if the Commission’s position is correct, section 30335.1 would only apply after staff makes its recommendation in the staff report and presents its recommendation to the Commission at the public hearing.  As such, it would have virtually no purpose because section 30335.1 would apply only to a small portion of the procedures (Commission hearings) involved in processing CDPs.  California Teachers Assn. v. Governing Bet. Of Rialto Unified School Dist., (1997) 14 Cal.4th 627, 634 (court will not adopt interpretation that is an idle act or superfluous).  Reply at 5.

Petitioner add that the Commission’s narrow reading of the phrase “matters which are before the commission for action” clashes with section 30335.1’s mandate that the Commission “provide for appropriate employees on the staff of the commission to assist applicants and other interested parties in connection with matters which are before the commission for action.”  See §30009 (Coastal Act shall be interpreted to accomplish its purposes and objectives); Dunn v. County of Santa Barbara, (2006) 135 Cal.App.4th 1281, 1294 (courts “are enjoined to construe [Coastal Act] liberally to accomplish its purposes and objectives, giving the highest priority to environmental considerations”).  This narrow reading would lead to absurd results because Commission staff could not even give procedural advice outside of Commission hearings, which makes no sense.  See Harris v. Capital Growth Investors XIV, (1991) 52 Cal. 3d 1142, 1165-66.  Reply at 4-5.

Both these arguments are untenable.  The Commission’s interpretation of section 30335.1 does not preclude procedural advice outside of the Commission hearings.  To the contrary, it permits both procedural and substantive advice outside hearings, and proscribes only substantive advice at the hearing itself.  It is true that this interpretation reduces the scope of section 30335.1 to less than Petitioner wants, but so what?  That does not make the interpretation wrong. The Commission’s point is that the statute has the limited purpose of preventing staff from providing substantive advice at the public hearing after the staff report has been distributed.  See 14 CCR §§ 13057, 13059.  

Finally, Petitioner notes that many CDP matters never get to a hearing before the Commission, such as de minimis waivers and coastal exemptions where no permit is required.  See, e.g., §§ 30610, 30624.7.  Petitioner argues that the Commission’s interpretation leaves out a significant amount of staff activity regarding these different coastal development approvals.  Reply at 3, n. 4.  This argument does not affect the analysis.  Pursuant to the Commission’s interpretation, section 30335.1 does not restrict staff contact with an applicant for these matters where no permit is required because there is no public hearing for such matters.

d. Canons of Construction

Petitioner argues that the Commission’s interpretation is too narrow and contravenes the canon of statutory construction against rewriting a statute.  See CCP §1858 (in construction of a statute, courts may not “omit what has been inserted” nor “insert what has been omitted” and must strive to “give effect to all” parts of the statute).  Had the Legislature meant to limit section 30335.1’s prohibition to assistance at the public hearing, it would have so stated.  The Commission strains to read into section 30335.1 restrictions that do not exist in the language of the statute.  The Commission may wish the Legislature to amend the statute, but the court cannot do so.  Reply at 3.

The canon of construction against rewriting a statute does not aid Petitioner.  The Commission’s interpretation does not add words to section 30335.1.  It merely interprets “matters which are before the commission for action” to mean matters for decision at a public hearing.  This is not adding words or rewriting the statute.

            e. Legislative Intent

The Commission notes that section 30335.1 requires certain Commission staff to provide assistance to applicants and other interested parties. The Legislature’s stated intent in enacting this provision was for interested parties to receive “appropriate assistance to facilitate their participation in the planning and coastal development permit processes….”  Stats. 1979, c. 919, §19.  Opp. at 17.

Petitioner argues that this legislative history supports its argument by demonstrating that the legislative intent is for assistance in “coastal development permit processes” and is not limited to assistance at a public hearing.  The term “permit processes” includes the application processing and forms and information required to be submitted prior to the Commission hearing on a CDP.  Nothing in the legislative history of section 30335.1 indicates a legislative intent to limit the scope of its prohibition in the manner the Commission suggests.  Reply at 6.

The converse is true.  The fact that the legislative intent for section 30335.1 is to enable interested parties to receive staff assistance in CDP processes does not undermine the Commission’s interpretation, which allows staff to give advice during the entire CDP process except at the public hearing where staff is limited to advising about procedure.  If Petitioner’s interpretation were adopted, an applicant or other interested party could not receive any substantive staff advice before the hearing.  This would be inconsistent with the legislative history directing staff assistance in the CDP “process”.

f. The Commission’s Interpretation Is Entitled to Great Deference

At the de novo hearing, the Commission’s General Counsel stated that section 30335.1 “only applies to the Staff that is at Commission meetings for matters which are before the Commission for action.  So[,] I wanted to clarify that there’s nothing improper about Staff meeting with the applicant.”  AR 878.  See 14 CCR §13034 (“The Chief Counsel of the California Coastal Commission shall be the regulatory ombudsperson for the California Coastal Commission.”).  The General Counsel’s comment is consistent with the Commission’s interpretation in its opposition.

If a statute is unambiguous, an agency's interpretation is entitled to no deference.  Bonnell v. Medical Board, (2003) 31 Cal. 4th 1255, 1265.  But for an ambiguous statute, California law affords "great weight" to the Commission's interpretation of the Coastal Act and its regulations, given its special familiarity with these legal issues. Ross v. California Coastal Com., supra, 199 Cal.App.4th at 922-23.  The court's review is "quite limited, and the Commission is "given substantial deference."  Evans v. City of San Jose, (2005) 128 Cal.App.4th 1123, 1145-46.

The court must give great weight to the Commission’s interpretation of section 30335.1.  Petitioner argues that the Commission’s interpretation of section 30335.1 is not entitled to deference because it is a procedural statute, which is arguably less within the Commission’s particular area of expertise.  See Yamaha Corp. of America v. State Bd. of Equalization, (“Yamaha”) (1998) 19 Cal. 4th 1, 11, 12.  Reply at 2.  This argument is unsupported.  An agency may interpret its governing statutes, procedural or substantive, and Yamaha does not suggest that the Commission’s interpretation of a procedural statute is entitled to less deference.

The Commission cites Coronado Yacht Club v. California Coastal Com., (1993) 13 Cal. App. 4th 860, 871, in connection with another issue -- the difference between a substantial issue and a de novo appeal.  Opp. at 13.  In Coronado, the court agreed with the Commission’s interpretation of section 30621 to require an appeal hearing within 49 days to mean only the substantial issue hearing, not the de novo appeal hearing.  Id. at 866-67, 872-73.

Petitioner argues that Coronado focuses on whether the Coastal Act takes precedence over various housing density statutes and is factually and legally distinguishable.  The court upheld the Commission’s interpretation of section 30621 because it “advance[es]…an interpretation more consistent with the cited legislative intent to avoid bureaucratic delay and expedite the administrative process so as to obtain finality.”  Id. at 871.  In contrast, the Commission’s reading of section 30335.1 would negate the legislative intent of preserving the public’s trust in the Commission as an unbiased arbiter of quasi-judicial decisions affecting the coastal zone.  See §30320 (Commission shall conduct its affairs in open, objective, and impartial manner).  Reply at 5-6.

Plainly, Coronado is not on point.  Yet, it shows that the courts will uphold the Commission’s statutory interpretation where appropriate to advance the expedited review process to obtain finality.  Expedited review would not be available under Petitioner’s interpretation of section 30335.1.

g. Conclusion

While section 30335.1 does not have a plain meaning and is ambiguous, the statutory scheme, the purpose of section 30335.1, the legislative intent, and the great deference required for the Commission’s interpretation all support the conclusion that the limitation on staff communication with applicants only applies when the Commission considers the matter at a public hearing.  The Commission did not violate section 30335.1 when its staff communicated with the Applicants to revise the Project before the de novo appeal hearing.[8]

2. Petitioner and the Public Received a Fair Hearing

In arguing that the public did not receive a fair hearing, Petitioner relies on the due process requirement of “the opportunity to be heard at a meaningful time and in a meaningful manner.'"  People v. Zuniga, (1996) 46 Cal.App.4th 81, 84.  Whether a process is fair is determined in part by whether prehearing procedures are followed, not just the process during the hearing.  See §30320(b) (recognizing need for public participation either before or during the public hearing before the Commission).  Petitioner argues that, by the time it and the public received notice of the de novo staff report, the decision regarding whether the Project conforms to Chapter 3 and the Venice LUP had already been deliberated behind closed doors.  At that point, no notice would cure the procedural defect.  Reply at 7.

Petitioner argues that the Commission’s violation of section 30335.1 resulted in less protection for the coastal zone because staff telegraphed to the developer how the Project might be changed in order to get a positive staff recommendation for the de novo hearing.  Had the law been followed, the Applicants would have had the incentive to bring its Project into compliance with the Commission’s substantial issue determination.  Instead, once staff felt it could not get any more than a token concession, it drafted a staff report recommending Project approval based on the compromise design change.  AR 877 (noting that Applicants made as many changes as staff believed they were willing to make).  Prejudice can be demonstrated also by the fact that the staff report’s proposed findings and recommendations were not neutral and objective.  Reply at 7-8.

As stated ante, section 30335.1 was not violated.  Petitioner and the public also received a fair hearing.  The Commission staff reports must be distributed within a reasonable time to assure adequate notification prior to the scheduled public hearing.  14 CCR §13059; see Ross v. California Coastal Comm., supra, 199 Cal.App.4th at 936 (13 days' notice was a “reasonable time for review and comment by other public agencies and the general public” under the California Environmental Quality Act).  The Commission usually distributes staff reports at least ten days before the relevant meeting or hearing. California Coastal Commission, Meetings: Rules & Procedures, (as of December 21, 2023) https://coastal.ca.gov/meetings/rules-procedures/.  In this case, the Commission issued the staff report 14 days prior to the de novo hearing.

The Coastal Act requires that “all members of the public [be] given an adequate opportunity to present their views and opinions to the Commission through written or oral communications either before or during the public hearing on any matter before the commission.”  §30320(b).  The July 28, 2022 staff report described the Applicants’ modified Project. Petitioner provided comments to the July 28, 2022 staff report on August 5, 2022, expressing remaining concern over the Project’s size but noting that the “proposed added articulation is a step in the right direction.”  AR 718.   Commission staff addressed Petitioner’s comments in the Addendum issued on August 9, 2022, two days before the hearing. AR 813.

Petitioner’s representatives met with two Commissioners before the hearing, on August 5 and August 8, 2022, respectively.  AR 831, 833.  At those meetings, Petitioner expressed concerns over the Project, the size of the building, the character of the community, and frustration that the LCP has not been completed by the City. AR 833. Petitioner’s representatives and members also testified at the de novo hearing.  AR 856, 869-74.  

These facts show that both the public and Petitioner had ample opportunity to participate and provide “views and opinions” to the Commission about the Project.  §30320(b).  Petitioner received a fair hearing. 

3. The Commission Did Not Make Inconsistent Findings

Petitioner argues that the Commission’s finding on de novo appeal that the modified Project complies with the Venice LUP and Chapter 3 policies is logically inconsistent with its finding on the substantial issue appeal that the Project did not comply.  See Yamaha, supra, 19 Cal.4th 1 at pp. 7, 12-13; City of San Diego v. D.R. Horton San Diego Holding Co., Inc., (2005) 126 Cal.App.4th 668, 682 (factfinder is not permitted to “make inconsistent determinations of fact based on the same evidence.”).  As no logical explanation was given to reconcile the two disparate conclusions based on the evidence in the record, “a reasonable person could not reach the conclusion reached by” the Commission.  Lindstrom v. California Coastal Com., (2019) 40 Cal.App.5th 73, 93.  Therefore, the Commission’s findings were arbitrary, capricious, and not supported by the evidence.  La Costa, supra 101 Cal. App. 4th at 814.  Moreover, the Commission’s compatibility findings do not comply with the standards articulated in Topanga, supra,  11 Cal. 3d at 506, because Petitioner, the public, and the court cannot easily discern the Commission’s analytic route it traveled from evidence to approval of a 2,795 square foot Project that earlier had been found to be inconsistent with the Coastal Act and Venice LUP due to its 2,795 square foot size.  See West Chandler Blvd. Neighborhood Ass’n v. City of Los Angeles, (2011) 198 Cal.App.4th 1506, 1521- 22.  Pet. Op. Br. at 16-17.

This argument is spurious.  There is no requirement for the Commission to deny an applicant a CDP merely because it entered a substantial issue finding. A substantial issue finding is a threshold jurisdictional hurdle to be crossed before the de novo appeal is heard.  See §30625(b)(1).  At a substantial issue hearing, the Commission is inquiring whether a substantial question is raised, but it is not necessarily entering a finding as to the answer to the substantial question.  See AR 485 (“The City’s decision …does raise questions…”); AR 468 (“[T]he proposed residence raises a substantial question as to whether…”) (emphasis added).  The substantial issue appeal is an initial review that does not bind the Commission after a deeper inquiry is made on the de novo appeal.  A conclusion otherwise would undermine the entire point of a de novo hearing.  As Real Party points out (RPI Opp. at 6-7), the Commission could find that an appeal raises a substantial issue and then permissibly approve the project upon de novo review without any project change or additional evidence.  That did not happen in this case as the Project was modified. 

Petitioner’s argument that, pursuant to the requirements of Topanga, one cannot follow how the Commission approved a 2,795 square foot Project that earlier had been found to be inconsistent with the Coastal Act and Venice LUP due to its 2,795 square foot size is belied by the Project modifications.  The Commission granted the substantial issue appeal based on “[t]he lack of articulation, as well as the home’s mass, if implemented on future projects has the potential to adversely impact community character.”  AR 484 (emphasis added).  The Project approved at the de novo hearing “is designed with an articulated façade to break up the massing.” AR 14 (emphasis added).  The second floor of the Project was stepped back from the first-floor setback to reduce its mass.  Id. The Applicants modified their Project to incorporate articulation and step backs found in nearby similar homes, resulting in a project that conforms to Chapter 3 of the Coastal Act.  Opp. at 14-15; RPI Opp. at 5-6.

4. The Findings Are Supported by Substantial Evidence

At the de novo hearing, the Commission reviews the Project for conformity with Chapter 3 of the Coastal Act, using the certified Venice LUP as guidance.  §30604(a); AR 478.

The relevant Chapter 3 provisions are sections 30250, 30251, and 30253.  Section 30250(a) requires that new development be located within existing developed areas.  The Project is a residential home to replace an existing residential home on a street with nearly two dozen residential structures.  AR 9, 15, 22-23, 40.  Accordingly, the Project conforms to the location requirement of section 30250.

Section 30253, in relevant part, requires that new development protect special communities that “because of their unique characteristics” are popular visitor destinations.  §30253(e).  The Commission has found that Venice is a Special Coastal Community whose character, including its unique social and architectural diversity protected by the Venice LUP, should be protected under section 30253(e).  AR 12.

Section 30251 in relevant part requires that the Project design be “visually compatible with the character of surrounding areas.”  §30251.  The Venice LUP offers insight into what might be considered visually compatible with the area. AR 11.  Venice LUP Policy I.A.6 restricts lots smaller than 5,000 square feet to a maximum density of two units per lot.  AR 11, 614.  The Project complies with that limit as it is for one unit on a 4,212 square foot lot.

Venice LUP Policy I.E.1 notes that Venice’s “architectural diversity” should be protected.  Venice LUP Policy I.E.2 states new development should respect the scale and character of the community and encourages buildings “which are of a scale compatible with the community (with respect to bulk, height, bugger and setback)”.  Venice LUP Policy I.E.3 encourages varied architecture “with building facades which incorporate varied planes and textures while maintaining the neighborhood scale and massing.”  AR 615-16.  

The Commission’s decision that the modified Project conforms to Chapter 3 policies and the Venice LUP must be based on substantial evidence, which is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority, supra, 104 Cal.App.4th at 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value.  Mohilef v. Janovici, supra, 51 Cal.App.4th at 305, n.28.  The Commission's decision may rely on any relevant evidence, regardless of its admissibility in civil actions.  14 CCR §13065.  The substantial evidence on which the Commission may rely includes expert opinions, photographs, and observations from Commissioners, Commission staff, and the public.  La Costa, supra, 101 Cal.App.4th at 819.  The court may not reweigh the evidence, or disregard or overturn a finding simply because a contrary finding would be more reasonable.  Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control, supra, 2 Cal.3d at 94.  The court may only overturn the agency’s decision if a reasonable person could not have reached the decision based on the evidence that the agency had before it.  Bolsa Chica Land Trust v. Superior Court, supra, 71 Cal.App.4h at 503.

Petitioner challenges the size of the Project.  The Venice LUP “was designed to protect Venice’s unique character primarily through the use of objective building standards and restrictions.”  AR 13 (emphasis added).  The Venice LUP offers objective standards on the size of a residence such as roof height limits and roof access height limits.  AR 615-16.  The Project complies with all specified objective requirements of the Venice LUP designed to limit the maximum size of homes in the area.  

According to the de novo staff report, the Project also “observes all setbacks, open space, and height requirements of both the City of Los Angeles uncertified Zoning Code and the certified Venice LUP.”  AR 9.  The Venice LUP does not provide setback standards and instead requires yards to be consistent with the existing scale and character of the neighborhood.  AR 13.  The Venice LUP “implies a focus on objective measurements, such as bulk, height, buffer and setback, while also allowing for a subjective assessment based on the surrounding ‘community development.’”   AR 13, n. 3.  The Project’s front yard setback is 18-20 feet, consistent with the prevailing front yard setback of 18 feet in the area. AR 13.  The Project’s side yard setbacks are four feet, in compliance with the City’s minimum of three feet for lots less than 50 feet wide, and the Project lot is 32 feet wide. (AR 13, 473.) The Project’s rear yard setback is 15 feet and in compliance with the City’s setback requirements.  AR 13.  Likewise, the roof pitches reach up to 29.5 feet in height, which is below the roof height limit of 30 feet and the roof access structure reaches a maximum height of 33 feet, which is also consistent with the limits set in the Venice LUP.  AR 14, 615-16. The Commission found that the Project’s setbacks comply with the City’s setback requirements. AR 13-14.  

The Commission reviewed a survey of the 26 lots on both sides of Angelus Place between Oakwood and Grandview Avenues.  AR 13, 40.  While the Project would be the largest single-family residence in the survey area, it would not be the largest residential structure in the area.  AR 14, 22-23, 619-621, 721.  Nor would it be the only home with roof access, as there are two other homes with roof decks in the area.  AR 14.  Finally, the Project would be one of six two-story single-family residences in the survey area.  AR 14, 619-21.  All the two-story homes in the area have stepped back façades or some other articulation.  All five of the other two-story homes in the survey area have stepped back façades and the Project is likewise designed with an articulated façade to break up the massing and four to six-feet step backs for the second floor.  AR 14, 648, 769, 837-38.

There is substantial evidence to support the Commission’s finding that the modified Project is “compatible with the mass, scale and character” of existing development and complies with Chapter 3 of the Coastal Act because the Project (a) would not be the largest residential building the area, (b) would not be the only two-story residential building in the area, (c) would not be the only home with roof access, (d) contains a stepped back second story similar to the other two-story homes in the area, and (e) complies with all Venice LUP and City setback and height restrictions.  AR 16.  

Petitioner disagrees.  At the public hearing, the Commission’s District Director for the South Central Coast and South Coast, Los Angeles County, only stated that Commission staff believed the Project to be consistent with the Venice LUP:

“[S]taff does believe that, you know, in this case, a 2,795 square foot home is not out of character with the area… staff has spent a considerable amount of time working with the applicant and the homeowner to try to reach the changes, [] that have been proposed today. And while of course they could go further, [] in this case, I do believe that the applicant has made as many changes as they're willing, [] to propose, and we had, I believe, four meetings <laugh> and about four different, [] versions of these plans to get to this point. So I would just note that, in this case, our decision of staff is based on whether or not this project, which I, I believe [] has been changed as much as the applicant is going to do, is consistent with the LUP.” AR877 (emphasis added).  Pet. Op. Br. at 112-13.

Petitioner contends that the Project revisions focused on the façade of the residence, but the size, mass and scale did not change.  Compare AR 648 (substantial issue appeal image) and AR 855 (de novo appeal image). Articulation is just one factor of neighborhood compatibility and is not dispositive on the issue of scale.  The Commission relied on an insignificant change in façade articulation of the Project to support its conclusion that the Project is compatible with the scale of the neighborhood, but no reasonable person could reach the same conclusion.  See La Costa, supra, 101 Cal. App. 4th 804, 814.  Pet. Op. Br. at 11, 17.

            According to Petitioner, the de novo staff report and staff presentation offered no relevant evidence how the façade articulation affects the pedestrian viewscape.  AR 1-17; 834-39.  There is only one picture in the record, submitted by the Applicants, that shows a side view of the revised Project from across the street, and it looks exactly like the image from the staff’s substantial issue presentation.  AR 855, 648.  The administrative record includes pictures from pedestrian walkways of the significant (40 foot) setbacks of other houses.  AR 539-42.  Therefore, the Commission’s finding on consistency with the viewscape of the neighborhood is not supported by substantial evidence.   Pet. Op. Br at 17.

The Commission emphasizes that the Project fits into the maximum building envelope allowed, thereby equating “maximum” with “compatible”.  This is a false equivalence and skirts the main issue: the size of the Project originally was 2,795 square feet and remains 2,795 square feet.  Size must be factored into whether the Project complies with LUP Policy I.E.2 that it is “of a scale compatible with the community (with respect to bulk, height, buffer and setback).”  AR 615-16.  The Commission does not address why bulk as a factor in size and scale compatibility should be excluded from the analysis.  See §30212; AR 484 (substantial issue findings note that Commission uses height, setback, and bulk to analyze mass and scale compatibility).  Reply at 10-11.

            Petitioner criticizes the Commission’s failure to address one-story homes in the survey area.  The Commission found that the modified Project is compatible with the survey area because it is “larger than the average but not the largest structure in the survey area”, and “would be compatible with the other five two-story homes in the survey area” due to “an articulated façade to break up the massing.”  AR14.  While the substantial issue staff report properly made a direct comparison of the Project’s scale to the scale of all houses in the survey area (21 one-story and five two-story homes), the de novo staff report omitted a direct comparison to one-story homes.  See AR13-15.  The five two-story homes compared to the modified Project were significantly smaller in scale, except for one multi-family duplex.  AR22-23.  The Project is 24% larger than the average of the six largest developments in the neighborhood (AR 14, n. 8; AR 22-23) and over 31% larger than the largest single-family house in the survey area.  AR 14, n. 7.  Given these numbers, no reasonable person could conclude that the Project’s mass and scale are compatible with the survey area regardless of the slight façade articulation.  Pet. Op. Br. at 17-18; Reply at 10-11.

            In straining to justify a finding of compatibility, the de novo staff report cherry-picked the term “architectural diversity” as the characteristic that makes “Venice a special coastal community” and found that the Project “contributes to this diversity.”  AR 16-17.  The Commission’s finding is in stark contrast with its prior correct interpretation of LUP Policy I.E.3 in the substantial issue report that “varied styles of architecture are encouraged...while maintaining the neighborhood scale and massing”.  AR 473 (emphasis added).  The Commission did not explain how it could find that the mass and scale of the Project violated LUP I.E.2 on the one hand, and then find the opposite based on architectural diversity, which is a wholly separate matter.  AR 16-17.  See California Hotel & Motel assn.v Industrial Welfare Comm., (1979) 25 Cal. 3d 200, 212 (agency must consider all relevant factors and demonstrate a rational connection between them).  Pet. Op. Br. at 18.

            Moreover, while the substantial issue staff report relied on Venice LUP policies I.E2 and I.E3, which require a project to be consistent with the mass and scale of the existing structures in the neighborhood, the de novo report inexplicably relied on the City’s yard setback ordinance for the community character findings.  AR 13.  Chapter 3 and the Venice LUP specifically require a project to be compatible with the existing neighborhood, and this compatibility is not per se achieved by compliance with the City’s yard setback requirements.  AR 473, 483.  The City’s yard setback requirements are not dispositive on compatibility because (1) they are not yet certified as the standard for measuring impacts under Chapter 3 and (2) the Venice LUP Policy I.E.2 specifically differentiates between “scale” and “landscape.”  AR 473.  Neither the Commission’s findings nor its opposition explain how the Commission could rely on an uncertified city code as the standard of review.  Pet. Op. Br. at 19; Reply at 11.

As Real Parties argue (RPI Opp. at 9-10), Petitioner does not contend that the Project violates any objective standard in the Venice LUP.  Instead, Petitioner contends that the Project violates the subjective standard in Venice LUP Policy I.E.2 encouraging buildings “which are of a scale compatible with the community (with respect to bulk, height, buffer, and setback)”.  But Petitioner ignores the following facts: (a) the Venice LUP was designed to protect Venice’s unique character primarily through objective building standards and restrictions (AR 13); (b) Venice LUP Policy I.E.2 provides that “[b]uildings which are of a scale compatible with the community (with respect to bulk, height, buffer and setback) shall be encouraged” (AR 13), and the word “encouraged” does not mean “required”, and (c) the Commission’s subjective decision on compatibility need only be based on substantial evidence. 

These facts make all the difference.  As Real Party contends, the Commission had broad discretion to find that the Project complies with the subjective standards of the Venice LUP and Chapter 3 policies.  RPI Opp. at 10.  That Petitioner may have subjective evidence to the contrary does not bear on the issue.  Both parties can have subjective evidence supporting their position and, if so, the Commission’s decision must be upheld.  The court may not reweigh the evidence, or disregard or overturn a finding simply because a contrary finding would be more reasonable.  Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control, supra, 2 Cal.3d at 94.[9]

Real Parties point out that Petitioner is essentially arguing that scale and character should be reduced to an average square footage on a residential block, and therefore the Project is not compatible with its residential neighborhood because it is larger than the average.  Real Parties underscore that the terms “scale and character” are discretionary and Venice LUP Policy I.E.2 only requires that buildings of a scale compatible with the community (with respect to bulk, height, buffer and setback) shall be encouraged.”  The terms “scale and character” and “bulk, height, buffer and setback” cannot be reduced to the average size standard posited by Petitioner.  RPI Opp. at 10-11.[10]

Petitioner only weakly replies that Real Parties provides no authority that LUP Policy I.E.2’s mandatory language is discretionary as it provides that new development “shall respect the scale and character of community development”, and the word “shall” is mandatory.  AR 615.  Reply at 15.  The language of LUP Policy I.E.2 quoted by Petitioner is qualified by the next sentence concerning the “encouragement” of buildings compatible in bulk, height, buffer, and setback, which most certainly is discretionary.

Real Parties correctly rely (RPI Opp. at 11-12) on Pacific Palisades Residents Assn., Inc. v. City of Los Angeles, (2023) 88 Cal.App.5th 1338, where a group of neighbors contested a project’s architectural compatibility and views in the Pacific Palisades.  Id. at 1367.  The court upheld the Commission’s finding of no substantial issue in connection with a proposed development of an ocean-viewing lot that was 45 feet high (and one story higher than any nearby structure).  Id. at 1368.  The petitioner claimed that the “size, design, and mass of the building are completely divorced from the character of the community’s buildings and uses.”  Ibid.  The court stated: “This argument for mandatory architectural uniformity misapplies the substantial evidence standard of review….Elected officials have latitude to weigh competing and subjective notions of beauty and blight. Our judicial role in this setting is to defer to their judgment when, as here, substantial evidence supports it.”  Ibid.  The same is true for the modified Project.[11]

Substantial evidence supports the Commission’s decision that the modified Project is compatible with the character of the surrounding areas and complies with Chapter 3 policies and the Venice LUP.  AR 13-14.

5. Cumulative Impacts

The Coastal Act requires the Commission to consider a proposed project's cumulative effects in light of other present, past, and probable future developments.  §30105.5; Greene v. California Coastal Com., (2019) 40 Cal. App. 5th 1227, 1234.

The de novo staff report weighed the cumulative impacts of the Project and explained its rationale.  AR 15-17.  In analyzing cumulative impacts, the Commission looks both at historical data and potential future development in the area.  AR 15.  The Commission staff reviewed over two dozen lots in the survey area and noted: (1) the Commission has not entered a final decision on any CDP applications for projects on Angelus Place since 2001; (2)  the City has approved size increases of four residential structures “with total sizes ranging from 1,570 square feet to 2,323 square feet”; (3) the City approved two new residential structures at a square footage of 2,795 square feet and 3,437 square feet; 21 residential structures ranged in size from 768 square feet to a duplex of 2,937 square feet, and one duplex larger than the Project; and (4) development in the area is occurring at a slower pace than other areas of Venice.  AR 15. 

With regard to future development, there are two other residential homes currently proposed on Angelus Place: a two-story 3,437 square foot home and a two-story 2,660 square foot single-family home.  AR 16.  Recent actions demonstrate that homes larger than the existing older homes will continue to be proposed in the area.  AR 16.  Even so the Project would not set a precedent for overall size of future development.  The variation and articulation to the Project façade will prevent the size and massing from causing a significant adverse cumulative effect on the surrounding development and Venice as a Special Coastal Community.  AR 16. 

The Venice LUP recognizes there will be development of larger homes over time, and that such development is cabined by building standards, lot setbacks, lot size, and limits on rooftop decks, all designed to protect Venice’s character.  AR 16.  The Project is consistent with these standards and is unlikely to contribute to any adverse cumulative effects on community character, mass, and scale, and visual resources of the area.  AR 16-17. 

Petitioner argues that the Commission’s cumulative impacts found that the Project would be larger than many homes in the survey area, and that recent and future projects would continue to be larger, and yet inexplicably concluded: “Even so, the [Project] would not set a new precedent in terms of overall size of existing residential structures…and potential future development.” AR 16.  This conclusory finding was not tethered to any evidence or rationale as required by Topanga, supra, 11 Cal.3d at 515.  Pet. Op. Br. at 19.

Moreover, the finding of no “significant adverse cumulative effect” concerning the modified Project’s scale was based on its articulation.  AR 16. This was an abuse of discretion. When the Commission approves an out-of-scale project inconsistent with the Coastal Act, the approval can have adverse impacts because the City will base future permitting decisions on prior Commission decisions. §30625(c).  The total square footage (not articulation) will be used to justify others similar in size.  AR 473 (project size would prejudice the City’s ability to prepare an LCP). The Commission’s reliance on minor articulation changes is not substantial evidence, which must be either evidence of “ponderable legal significance…reasonable in nature, credible, and of solid value” or “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”  County of San Diego v. Assessment Appeals Bd. No. 2, (1983) 148 Cal. App. 3d 548, 558.  The Commission’s reliance on an irrelevant aspect (articulation) of the Project to evaluate the precedential impact of size on future Venice CDP decisions was an abuse of discretion.  Pet. Op.  Br. at 19-20; Reply at 12.

The Commission properly considered the Project’s cumulative impacts.  AR 15-17.  The Commission looked at historical data and considered potential future development in the area.  AR 15.  The Commission reasonably concluded that the Project would not be setting any new precedent in the survey area (AR 16) because “new modern homes” (larger homes) are anticipated in the Venice LUP (AR 13), because there have already been increases to home sizes in the area (AR 15), and because the Project would not be the largest structure in the survey area (AR 23).

Petitioner’s argument that scale (square footage), not articulation, will be the sole issue for approval of future projects is unsupported by legal authority.  In contrast, the de novo staff report expressly noted that variation and articulation to the Project façade will prevent the size and massing from causing a significant adverse cumulative effect on the surrounding development and Venice as a Special Coastal Community.  AR 16.  The staff report also found that the size and massing of the Project would not cause significant adverse cumulative impacts because there are existing large structures in the area.  AR 16.   The report further noted that the size of newer and larger homes in the area would be limited due to the small lot sizes in typical Venice neighborhoods (AR 13) and the Venice LUP’s prohibition on merging lots (AR 12).

In reply, Petitioner argues that the fact that there are more modern homes (larger homes) only demonstrates the potential cumulative effects of approving another out-of-scale development. Simply pointing to a regulatory policy such as the LUP’s lot size and lot consolidation limitations is not evidence that there will be no cumulative impacts.  The Commission’s findings do not point to any evidence that smaller lot size is an adequate restriction preventing future impacts due to out-of-scale developments.  In fact, this assertion is contradicted by the Commission opposition’s assertion that larger homes are being approved.  City of San Diego v. D.R. Horton San Diego Holding Co., Inc., (2005) 126 Cal. App. 4th 668, 681 (“findings must be internally consistent and logical”).  Reply at 12-13.

Not so.  Small lot size and a prohibition on merged lots is an obvious limitation on home size.  The fact that larger homes are being approved than currently exist on these small lots does not contradict the fact that there is an inherent size limitation.  Petitioner also ignores the Commission’s findings of existing large structures in the area and the requirement of articulation.

Petitioner further argues that the Commission’s finding of no adverse cumulative impacts erroneously relied on the de novo staff report’s statement that “[r]ecent Commission hearings on Venice projects reveal an ongoing dialogue as to whether compliance with the Venice LUP is an adequate measure of a project’s consistency with community character.”[12] AR 16-17.  The Commission’s disregard of the Chapter 3 requirements and LUP policies that lawfully guide the Commission’s findings for the substantial issue appeal was an abuse of discretion.  See City of Chula Vista v. Superior Court, (1982) 133 Cal.App.3d 472, 481 (the Commission does not have the authority to change the LUP once it has been approved except under certain circumstances.  As such, the Commission failed to conduct a proper cumulative impacts analysis.  Pet. Op. Br. at 20.

The de novo staff report and staff comment at the de novo hearing have no bearing on the analysis.  Commission staff apparently was expressing frustration with the City’s lack of a certified LCP and/or a need to update the LUP.  There is no suggestion in these comments that staff ignored the existing Venice LUP and its requirements.

F. Conclusion

The Petition is denied.  The Commission’s counsel is ordered to prepare a proposed judgment, serve it on other counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for May 16, 2024 at 9:30 a.m.