Judge Lon F. Hurwitz, Case 21-01220184 2022-11-21 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 21-01220184, Date: 2022-11-21 Tentative Ruling

MOTION: Petition for Writ of Mandate/Motion For Adjudication on Stipulated Facts

REQUEST: Petitioner Signal Landmark, Inc. requests that this Court issue a Writ of Mandate compelling Respondent City of Huntington Beach to issue a Coastal Development Permit to Petitioner based upon adjudication of stipulated facts.

Moving Party (MP): Petitioner Signal Landmark, Inc. (“Signal”).

Responding Party (RP): Real Party in Interest California Coastal Commission (“the Commission”). Respondent City of Huntington Beach (“the City”) did not submit a brief in Opposition to the Petition for Writ.

Background Facts

The Commission is a state agency with quasi-judicial control of the land and public access along California’s coastline. California’s Coastal Act (Public Resources Code § 30000, et seq.) requires each local agency with at least some of its territory within the Coastal Zone to prepare a Local Coastal Program (“LCP”), which must be certified by the Commission. Amendments must comply with the Coastal Act’s certification process. Once the LCP amendment is certified, the local agency may then allow development within the Coastal Zone and issue coastal development permits (“CDPs”) when the development is consistent with the LCP. A CDP may be appealed to the Commission. Pub. Res. Code § 30603.

Due to budget restraints, the Commission meets once a month. (Coronado Yacht Club v. Cal. Coastal Comm. (1993) 13 Cal.App.4th 860, 872.) Its CDP appeal process is conducted in two phases: the first is the “substantial issue phase” followed by a de novo review phase if the Commission finds the appeal raises a substantial issue. (Kaczorowski v. Mendocino County Bd. Of Supervisors (2001) 88 Cal.App.4th 564, 569 [“If the Commission determines that an appeal presents a ‘substantial issue,’ the permit application is reviewed de novo; 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.”].)

The remainder of the pertinent facts below are taken from the MP and RP’s Statement of Undisputed Fact (“SUF”) (ROA 76).

12/12/18 The Commission approves The City’s request to amend its LCP to incorporate the Windward Specific Plan for property development. The plan requires a CDP for grading. (SUFs 6, 7)

4/21/21 The Commission receives the City’s “Notice of Final Action” for approval of Signal’s CDP. This action starts the 10-working-day appeal period. (SUF No. 9)

5/3/21 Commissioners Hart and Brownsey timely appeal the City’s approval of the CDP. A private citizen timely files another appeal two days later. (SUF Nos. 10, 11)

5/25/21 The Commission staff posts a 20-page report for the appeals. The City sends a letter to the Commission responding to the issues it raised on June 4, 2021. Signal, represented by two separate law firms, sends two letters to the Commission also addressing the appeals on June 4, 2021. (SUF Nos. 19, 21-22).

6/23/21 The Commission sends notice that the “significant issue” first phase of the appeals hearing is postponed from June 2021 to July 7, 2021. (SUF No. 26).

6/25/21 The Commission staff publishes its second report on the appeals.

7/7/21 Signal’s attorneys submit a supplement to their letter from June 4, 2021, in advance of the hearing.

7/7/21 The hearing goes forward and Commission staff recommend to the Commissioners that they find the appeals raise a substantial issue. The Commissioners did not ask questions and did not request to hear from the public on the issue before finding the appeals raised a substantial issue. The Commission did not set a date for the de novo review phase of the appeals. (SUF Nos. 33, 35)

8/23/21 Signal sends a letter to the City requesting that it issue the permits pursuant to the CDP. The City denies the request three days later due to its belief the Commission still has jurisdiction over the appeals. (SUF Nos. 39, 40).

9/3/21 Signal files its Petition in this Court. (ROA 2).

This writ followed. Per the Commission’s Opposition, the “de novo” second ANALYSIS:

Claim for Writ of Mandate

“A writ of mandate will lie ‘to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station’ (CCP § 1085) in cases ‘where there is not a plain, speedy, and adequate remedy, in the ordinary course of law’ (CCP § 1086).” (Galbiso v. Orosi Pub. Util. Dist. (2010) 182 Cal.App.4th 652, 673 [citing People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491, 96 Cal.Rptr. 553, 487 P.2d 1193].) There are two basic requirements for a writ: (1) A clear and present duty upon the part of the respondent; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty. Id. A petitioner must establish both requirements to obtain a writ of mandate pursuant to either Code of Civil Procedure section 1085 or section 1094.5. (Excelsior College v. Board of Registered Nursing (2006) 136 Cal.App.4th 1218, 1237.) “Traditional mandate is used to review adjudicatory actions or decision when the agency is not required to hold an evidentiary hearing or when the duty is ministerial. [Citations.]” (Id. at p. 1238.)

Standard of Review

The standard of review under CCP 1085 calls for a court to determine whether “the agency’s decision was arbitrary, capricious or entirely lacking in evidentiary support, contrary to established public policy, unlawful or procedurally unfair.” (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 298 [quoting California Public Records Research, Inc. v. County of Alameda (2019) 37 Cal.App.5th 800, 806].) Under this standard of review, a court’s role is to ensure the agency has adequately considered all relevant factors and has demonstrated a rational connection between those factors, the choices made, and the purposes of the enabling statute. (Id.) When the relevant facts are undisputed, however, the question is one of law for which a court employs its own independent review. (California Charter Schools Association, 35 Cal.App.5th at 369.)

Jurisdiction

Pub. Res. Code § 30621(a), provides: “The commission shall provide for a de novo public hearing on applications for coastal development permits and any appeals brought pursuant to this division…” Additionally, “[a] hearing on any coastal development permit application or an appeal shall be set no later than 49 working days after the date on which the application or appeal is filed with the commission.” (Pub. Res. Code § 30621(a)). Thereafter, per Public Resources Code § 30622, “[t]he commission shall act upon the coastal development permit application or an appeal within 21 days after the conclusion of the hearing pursuant to Section 30621.”

Per Public Resources Code § 30625(a), “if no action is taken within the time limit specified in Sections 30621 and 30622, the decision of the local government or port governing body, as the case may be, shall become final, unless the time limit in Section 30621 or 30622 is waived by the applicant.”

Coronado Yacht Club is controlling and dispositive in this matter, as the Coronado court specifically held that the Commission retains jurisdiction over a permit appeal by opening the hearing under section 30621 within 49 days of filing the appeal and then continuing the matter to a date beyond the 49-day limitation. (Coronado Yacht Club v. California Coastal Comm. (1993) 13 Cal.App.4th 860, 863.)

In Coronado Yacht Club, the San Diego Unified Port District (“District”) approved the Coronado Yacht Club’s (“Club”) permit for constructing a significant dock extension to be constructed on public tidelands leased by the Club from the District on October 16, 1990. [Coronado at 863]. A private citizen timely appealed the District’s decision on October 30. [Id]. At the regularly scheduled monthly Commission meeting on December 11, the Commission’s staff recommended that the appeal be heard. [Id]. At the hearing, the executive director stated if a substantial issue was found, the matter would come back for a subsequent hearing with a recommendation from the staff based on a de novo hearing. [Id at 864]. The Commission concluded a “substantial issue” exsited and a de novo hearing would be set at a later date. [Id].

In January of 1991, the Commission notified the parties that the de novo hearing would occur at the March meeting of the Commission. [Coronado, at 864]. On request by the Club and good cause being shown, the Commission advanced the matter to its February 1991 meeting. On January 28, 1991, the Club’s counsel advised the Commission that the appeal should be heard as soon as possible because the Commission had failed to hold the de novo hearing within the 49-day rule, which had expired on December 18, 1990. Therefore, it was without jurisdiction to hear the appeal. [Id]. At the hearing on February 5, 1991, the Club participated in the proceedings only after advising the Commission that participation should not be construed as a waiver of the right to contest jurisdiction. [Id]. The Commission approved the Club’s development permit with two special conditions. [Id].

On February 28, the Club demanded that the District issue the permit. On March 1, the director declined to do so, stating the District did not have jurisdiction to do so. [Coronado, at 864]. On March 5, the Commission’s counsel notified the Club and the District that the Commission still had jurisdiction to issue the permit, not the District. [Id. at 865]. On March 13, the Club petitioned for a writ of mandate seeking issuance of the District permit. The trial court directed the District to issue its permit and set aside the Commission’s claim of jurisdiction. [Id]. Both the District and the Commission appealed. [Id. at 866].

The Coronado court found that while the 49-day rule was designed to avoid bureaucratic delay, the Commission already had the authority to continue appeal hearings without any express limitation for acting on the appeal, except for rendering a decision within 21 days after conclusion of the hearing. [Coronado, at 871]. The Commission’s construction of the statutes was reasonable—the Commission only needs to open the hearing. [Id]. If three commissioners request a debate, the Commission need only resolve the matter of jurisdiction and then continue the matter in a timely fashion “that will guarantee its timely action on the appeal consistent with the implied legislative intent to avoid bureaucratic delay.” [Id]. Further, requiring the Commission to debate and vote on whether the appeal raises a substantial issue but prohibiting it from continuing the matter beyond 49 days to obtain evidence would essentially “promote form over substance.” [Id]. The Coronado court also found that due process did not require the Club to be afforded an opportunity to present testimony within the 49-day period. [Id. at 873].

As explained in Coronado, “the Commission’s holding of a public hearing to resolve first the issue of jurisdiction within the 49-day limit of section 30621 and then continuing the matter for de novo consideration of the merits of the permit application beyond that time limit in a reasonably timely fashion consistent with the implied legislative intent to avoid unnecessary bureaucratic delay, substantially, if not completely complies with the legislative intent underlying the statutory language in controversy.” [Coronado, supra, 13 Cal.App.4th at 872-873]. The Court in Coronado made clear that Public Resources Code §30621 requires the “opening of a public hearing within 49 days…” [Id. at 872] (emphasis added).

Here, the Commission opened the hearing within 49 days, as required by Coronado. While it did not set a de novo hearing at the conclusion of the “substantial issue” hearing on July 7, 2021, the statute does not require the Commission to do so and Signal cites no authority for that proposition in its moving papers or its reply.

Further, the Commission was not given an opportunity to set the de novo hearing to ensure it complied with the “reasonably timely fashion” per Coronado. Less than two months passed between the July 7, 2021 “substantial issue” hearing and the filing of Signal’s Writ Petition. Petitioner points out that in Coronado, approximately 100 days passed between the filing of the appeal and the de novo hearing. The Coronado court found this timing was reasonable. Here, the passing of 129 days is not significantly longer than 100 days. Further, the Coronado court also specifically noted that upon request of the Club via letter, the hearing was advanced from March 1991 to February 1991 due to concerns that approval of the permit in March would delay the proposed development for months during the tern nesting season beginning April 1. [Coronado, 13 Cal.App.4th at 864].

Unlike the Petitioners in Coronado who wrote a letter requesting an advancement of the hearing date, Signal made no such request of the Commission, choosing instead to file this Petition. The Commission notes it has not set a de novo hearing because Signal’s Petition “place[s] a cloud over whether the Commission even has the ability to do so.” (ROA 79, 20:24-26.)

Signal argues that the July 7 meeting was not a “public hearing,” in that its representative and other members of the public were not allowed to comment. However, the Commission notes that public debate and/or oral testimony is unnecessary to satisfy the appeal requirements. (North Pacifica LLC v. California Coastal Com. (2008) 166 Cal.App.4th 1416, 1430.)

Notably, Signal cites no cases, published or not, with a fact pattern establishing that the Commission has ever failed to set a de novo hearing or that the Commission failed to set one within a reasonable time. Signal’s fear that the Commission will either drag out the process or worse yet, fail to hold a de novo hearing entirely, is merely a shadow that has yet to materialize before the Courts. If this problem had occurred in the fifty years since the Commission was established, and had a developer believed the Commission was stalling the appeal due to nothing more than bureaucratic red tape, surely there would be a court record of it by now. Signal points to none.

As the Commission properly opened the appeals hearing on July 7, 2021, the Commission still has jurisdiction over the appeal as it has not concluded the hearing by holding a de novo review hearing.

Justiciability/Ripeness

Signal’s Writ is dependent on its theory that the final decision for the CDP currently lies with the City, as the Commission did not comply with the 49-day rule per Section 30625(a). As discussed above, this premise is incorrect. The final decision currently lies with the Commission since it accepted the appeals. As the Commission has jurisdiction to continue the hearing and make a decision on the permit, the issue is unripe.

“Generally, California courts decide only justiciable controversies and do not resolve lawsuits that are not based on an actual controversy. [Citation.]” (Bichai v. Dignity Health (2021) 61 Cal.App.5th 869, 879.) “Under the justiciability doctrine, unripeness and mootness describe situations where there is no justiciable controversy. [Citation.] Unripe cases are those in which an actual dispute or controversy has yet to come into existence. [Citation.]” (Ibid.) ‘“The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion.” [Id. at pp. 879-880.] “As a general rule, a lawsuit commenced before a cause of action has accrued is premature and cannot be maintained. [Citation.]” (Id. at p. 880.)

When the Commission accepts an appeal, that acceptance “does indeed nullify the lower entity’s decision.” (Fudge v. City of Laguna Beach (2019) 32 Cal.App.5th 193, 203.) “[I]n 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. (Kaczorowski v. Mendocino County Board of Supervisors (2001) 88 Cal.App.4th 564, 569 [citing Pub. Res. Code §§ 30604, 30625(b)(1); Cal. Code Regs., tit. 14, §§ 13115, 13119, 13321].) “Only after the Coastal Commission issues its decision can parties attack the Commission's decision in court by writ of mandate.” (Fudge, supra, 32 Cal.App.5th 193, 199 [citing Pub. Res. Code § 30801; McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 288].)

Signal argues that Section 30623 states, “If an appeal of any action on any development by any local government or port governing body is filed with the Commission, the operation and effect of that action shall be stayed pending a decision on appeal.” The distinction is not determinative. Whether the City’s actions were nullified or stayed, jurisdiction remains with the Commission.

Here, the Commission has yet to make an independent decision on the CDP after de novo review, as the Commission nullified (or stayed) the City’s decision to issue the CDP when it accepted the appeals. Therefore, the matter is not ripe because there is no decision for Signal to attack—the controversy has yet to come into existence. Further, the City’s issuance of the CDP is void and the City cannot be compelled to issue the CDP by writ or otherwise. Signal must wait for the Commission to hold a de novo hearing and issue a decision for it to challenge before it petitions this Court for a writ of mandate.

RULING:

Before the Court is Signal Landmark, Inc.’s (“Signal”) Petition for Writ of Mandate ordering and directing Respondent City of Huntington Beach (“City”) to issue a Coastal Development Permit (“CDP”) per Public Resources Code § 30625(a) because the California Coastal Commission (“Commission”) failed to decide the CDP appeals within 49 working days as required by Public Resources Code § 30621(a).

The Commission correctly asserts it is only required to open the hearing within 49 days—it is not required to conclude the hearing within that time. (Coronado Yacht Club v. California Coastal Com. (1993) 13 Cal.App.4th 860, 872-873.) As the Commission properly complied with the time constraints in Section 30621(a), it now has jurisdiction over the CDP appeals and issuance of the CDP itself. The Commission’s acceptance of the CDP appeals nullified the City’s decision to issue the CDP. (Fudge v. City of Laguna Beach (2019) 32 Cal.App.5th 193, 203.) Section 30625(a) is not applicable because the Commission timely acted on the appeals as specified in Section 30621(a).

As Section 30625 is not applicable, this Court cannot issue a writ to compel the City to issue the CDP. Further, Petitioner may not attack the Commission until after it has made a decision on the CDP appeals. [Fudge v. City of Laguna Beach (2019) 32 Cal. App. 5^th 193, 199; McCallister v. County of Monterey (2007) 147 Cal. App. 4^th 253]. The issue is unripe until the Commission completes the de novo portion of the hearing.

The writ is denied. Real Party in Interest shall recover costs incurred in these writ proceedings and shall give notice.

Nothing in this order shall be construed as directing the Commission to set or hold a de novo hearing. Any such decision shall be at the discretion of the Commission at this time.