Judge Stephen I. Goorvitch, Case Number: 23STCP02491, Date: 2024-05-01 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP02491, Date: 2024-05-01 Tentative Ruling

Petitioner Bel-Air Bay Club, Ltd. (“Petitioner” or the “BABC”) petitions for a writ of ordinary mandate directing Respondent California Coastal Commission (“Respondent” or the “Commission”) to set aside its decision (“Decision”) denying Petitioner’s application for an exemption from the Commission’s coastal development permit (“CDP”) requirements to replace a portion of a lanai terrace structure (the “Lanai”) that is located on the beach at Petitioner’s club. Petitioner contends that the Lanai was damaged as a result of severe winter storms in January 2023, and sought an exemption that applies to “the replacement of any structure, other than a public works facility, destroyed by a disaster” (the “Disaster Exemption”). Respondent denied the application finding that the damage to the Lanai was caused by normal wave action over many years. The court reviews the Commission’s decision under a deferential abuse of discretion standard. Because the Commission’s decision was not arbitrary, capricious, or entirely lacking in evidentiary support, the court denies the petition.

Petitioner owns a private beach club, known as the Bel-Air Bay Club (the “Club”), with beachfront facilities along the Pacific Coast Highway in the City of Los Angeles (“City”). (Compendium of Exhibits (“COE”) Exh. T at 459.) Petitioner built the facilities in the 1920s and it has since improved and expanded them. (Ibid.; see also Exh. P at 246-247.) Beginning in the 1950s, with City approvals and permits, Petitioner constructed a 4,822 square foot concrete lanai structure (“Lanai”) located on the beach, seaward of the main structure. (Id. Exh. A at 18-53; Exh. T at 459; Exh. U at 477.)

In November 1992, the Commission approved Petitioner’s CDP application “for the use of heavy machinery on the beach to build sand berms for protection from high tides and storms and to maintain the breach.” (COE Exh. WW at 990.) Subsequently, the Commission approved three amendments to this CDP, extending the time frame for temporary sand berms to November 2000. (COE Exh. HH, II, and JJ.)

In 2004, Commission approved Petitioner’s application for a CDP to, among other things, demolish part of the Bel Air Bay Club, construct certain new facilities, and realign an existing sea wall and sandwall. (COE Exh. Q at 274; see also Id. at Exh. P.) The staff report referred to the Lanai as an existing “bar” and “terrace” area. (Id., Ex. Q at 317, 332.)

In 2018, the Commission approved Petitioner’s application to “repair and reinforce” two existing groins on the beach. (COE Exh. XX at 995.) Between December 2018 and December 2020, the Commission issued Petitioner four emergency permits for temporary sand berms “to protect against wave uprush and inundation of Club facilities during extreme high tide and/or swell Events.” (COE Exh. M at 827.)

In March 2021, Petitioner filed a permit application for follow-up authorization of the temporary sand berms. (Ibid.) The application initially included a request to allow future construction of sand berms over a three-year period on an as-needed basis. However, Petitioner withdrew that request because its coastal engineer determined that the recently repaired groins in front of the Club “have performed sufficiently to maintain adequate beach width on site so that protection of any development on the applicant’s property from wave hazards is no longer necessary.” (COE Exh. MM at 828.)

Starting on December 27, 2022, and continuing into January 2023, severe winter storms related to a series of “atmospheric river systems” struck California, causing severe property damage. On January 4, 2023, Governor Newsom issued a State of Emergency Proclamation to address the “cascading impacts of these storms” and their threat to “critical infrastructure, movement of resources, . . . power outages to thousands of households and businesses . . . [and] river and urban flooding.” (COE Exh. G.) On January 8, 2023, President Biden issued a State of Emergency Declaration covering 17 California counties, including the County of Los Angeles, to “coordinate all disaster relief efforts” and address the “successive and severe winter storms, flooding and mudslides.” (Id. Exh. H.) On January 10 and 13, 2023, respectively, the County Board of Supervisors and the City issued declarations of local emergencies as a result of the winter storm. (Id. Exh. J, H.)

In a report issued in February 2023, the Commission’s Executive Director stated that these storms “brought record-breaking rainfall, winds, storm surge and snowfall . . . resulting in devastating flooding, mudslides and storm damage,” and that “California’s coastal areas bore the brunt of the storms and sustained significant damage.” (COE Exh. M at 146-147.)

On April 17, 2023, Petitioner submitted an application for a CDP exemption based on Public Resources Code section 30610(g), which states that a CDP is not required for “the replacement of any structure, other than a public works facility, destroyed by a disaster.”

(COE Exh. T.) In its application, Petitioner asserted that “shifting sands, increased wave action and surge caused by the historic storms [of January 2023] resulted in cracking and differential settlement in the southwest corner of the lanai.” (Id. at 459.) The proposed plans submitted with the application stated that 39.4 %, or 1,901 of 4,822 square feet, of the Lanai was damaged and required replacement. (Id. at 468.) Petitioner submitted two photographs of the damage to the Lanai in support of the application. (Id. at 470-471.)

On May 22, 2023, the Commission staff denied the exemption request (hereafter “Decision”). The Commission staff explained the Decision, in part, as follows:

Wave action and storm surge are normal coastal processes and do not necessarily constitute emergency or disaster. As discussed in the June 2004 report for CDP 5-02-099/A-5-PPL-02-162 for the subject property, the applicant has previously acknowledged that the lanai structure is subject to periodic flooding and scouring due to the structure’s hazardous location. The applicant’s coastal consultants also recognized in more recent studies that the lanai structure would be subject to intermittent wave uprush and flooding and would also become increasingly vulnerable to coastal hazards with sea level rise (Bel-Air Bay Club Beach Preservation Study, Moffat & Nichol, March 2016; Sea Level Rise Assessment for the Bel-Air Bay Club Site, Moffat & Nichol, July 2019). The language in 30610(g) is not intended to replace structures that have been gradually damaged through a series of storms and other natural recurring flooding events, especially ones that were identified years ago and are known to exacerbate over time. Thus, the executive director has determined that the damages to the structure were not wholly the result of a disaster, within the meaning of 30610(g), but rather the consequence of years of flooding and scouring caused by wave action.

On July 17, 2023, Petitioner filed its verified petition for writ of mandate and complaint for declaratory relief challenging the Decision. On September 15, 2023, Respondent filed an answer. On December 6, 2023, the court set the petition for hearing and set a briefing schedule. On February 26, 2024, Petitioner filed its opening brief, on March 26, 2024, Respondent filed its opposition, and on April 11, 2024, Petitioner filed its reply.

The court grants Petitioner’s request to take judicial notice of Exhibit A. The court denies Petitioner’s request to take judicial notice of the remaining exhibits because none is relevant. There is no dispute that there was a natural disaster during the relevant time period. The mere fact that the President, the Governor, local authorities, and the Commission’s Executive Director acknowledged that the storm was a disaster does not mean the storm caused the damage to the Lanai.

The court denies Respondent’s request to take judicial notice of Exhibit TT. The court did not rely on this exhibit in ruling on the petition for writ of mandate. Accordingly, the court denies Respondent’s supplemental request to take judicial notice of Exhibit ZZ.

The court overrules Petitioner’s objections to Exhibits GG through NN. Respondent’s submission of evidence not discussed in the Decision itself is not improper post hoc rationalization for the Decision. Accordingly, the court will consider Petitioner’s Exhibit BBB, which was submitted as rebuttal to Exhibits GG through NN.

An action challenging a Commission determination that development is not exempt from CDP requirements is subject to traditional mandamus under Code of Civil Procedure section 1085. (See Union Oil Co. v. S. Coast Regional Com. (1979) 92 Cal.App.3d 327, 330; see also Opening Brief (“OB”) 8 and Oppo. 10 [parties agree that section 1085 governs this petition].)

There are two essential requirements to the issuance of an ordinary writ of mandate under CCP section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.)

“Generally, mandamus is available to compel a public agency’s performance or to correct an agency’s abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) However, mandamus also “will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency’s action, its determination must be upheld. A court must ask whether the public agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) Petitioner “bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)

To the extent “purely legal issues involve the interpretation of a statute an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, ‘taking into account and respecting the agency's interpretation of its meaning.’” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343; see also Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.) How much weight to accord an agency's construction is “situational,” and depends on the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.) These same rules apply to the interpretation of a regulation.

Petitioner contends that Respondent abused its discretion in denying Petitioner’s exemption application because Respondent misinterpreted section 30610(g) and its factual findings are entirely lacking in evidentiary support. (Opening Brief (“OB”) 9.) Section 30610(g), the Disaster Exemption, provides in relevant part as follows:

Notwithstanding any other provision of this division, no coastal development permit shall be required pursuant to this chapter for the following types of development and in the following areas:

(g)(1) The replacement of any structure, other than a public works facility, destroyed by a disaster. The replacement structure shall conform to applicable existing zoning requirements, shall be for the same use as the destroyed structure, shall not exceed either the floor area, height, or bulk of the destroyed structure by more than 10 percent, and shall be sited in the same location on the affected property as the destroyed structure.

(A) “Disaster” means any situation in which the force or forces which destroyed the structure to be replaced were beyond the control of its owner.

The Commission found that “the damages to the structure were not wholly the result of a disaster, within the meaning of 30610(g), but rather the consequence of years of flooding and scouring caused by wave action.” (COE Exh. U.) In denying Petitioner’s application, the Commission cited evidence that Petitioner “has previously acknowledged that the lanai structure is subject to periodic flooding and scouring due to the structure’s hazardous location” and that Petitioner’s “coastal consultants also recognized in more recent studies that the lanai structure would be subject to intermittent wave uprush and flooding and would also become increasingly vulnerable to coastal hazards with sea level rise.” (Ibid.)

As part of its Decision, the Commission adopted the following statutory interpretation: “[Section] 30610(g) is not intended to replace structures that have been gradually damaged through a series of storms and other natural recurring flooding events, especially ones that were identified years ago and are known to exacerbate over time.” (COE Exh. U.) Petitioner has not shown that this interpretation is incorrect. The court reviews the statute de novo and considers relevant extrinsic aids to resolve ambiguity. (Nolan, supra, 33 Cal.4th at 340.)[1] Section 30610(g) only applies to a structure that is “destroyed by a disaster,” and in situations in which the destructive forces are “beyond the control of its owner.” (emphasis added.) The statute does not authorize the Commission to grant an exemption for structures that were gradually damaged by exposure to many years of natural forces. Rather, the plain language strongly suggests that a disaster must be the predominate—if not the sole—causal factor in the destruction of the structure for the Disaster Exemption to apply. A contrary interpretation would be inconsistent with the Coastal Act, which, among other things, requires new development to “minimize risks to life and property in areas of high geologic, flood, and fire hazard” and “assure stability and structural integrity.” (Pub. Res. Code § 30253 (a), (b).) A contrary interpretation would also lead to absurd results under which coastal property owners could have an incentive to avoid repairs to coastal structures that may have been gradually damaged or compromised by non-disaster, natural forces. (See People v. Jenkins (1995) 10 Cal.4th 234, 246 [when interpreting a statute or regulation, courts seek to “avoid an interpretation that would lead to absurd consequences.”]; Takiguchi v. Venetian Condominiums Maintenance Corp. (2023) 90 Cal.App.5th 880, 895 [“A remedial statute should be liberally construed to effectuate its object and purpose, and to suppress the mischief at which it is directed.”].)

Petitioner has not advanced a persuasive argument that the Disaster Exemption applies even if the structure is destroyed primarily by factors unrelated to a disaster, or if a disaster does not contribute significantly to the destruction of the structure. Petitioner asserts that “nothing in Section 30610(g) states that a ‘disaster’ must be a singular event....” (OB 16.) The court is unpersuaded by this argument. Section 30610(g) makes clear that the structure must be destroyed by “a disaster.” While a disaster (such as a storm) may encompass multiple natural forces, the statute only applies if the structure is actually destroyed by those forces, and not some other non-disaster forces or elements. The legislative history cited by Petitioner indicates that a severe storm may constitute a disaster under section 30610(g), but does not show legislative intent to apply the Disaster Exemption where factors other than a disaster were the predominate cause of the structure damage. (See OB 13, discussing COE Exh. F.)

Applying this interpretation of section 30610(g) to this case, Respondent found that the damage to the Lanai was “the consequence of years of flooding and scouring caused by wave action.” (COE Exh. U [bold italics added].) There is substantial evidentiary support for that finding, including the following:

· As Petitioner acknowledges, the Lanai “is a simple slab-on-grade structure—i.e., poured concrete on an underlying base of compacted sand.” (OB 5:8-9; see also COE Exh. T at 459.) Thus, the Lanai is not raised or otherwise protected from wave action, high tide, or flooding.

· According to a Commission staff report dated October 27, 1992, “the beach in front of the Bel Air Bay Club has suffered significant erosion since the early 1980s. The sand shortage, combined with a shoreline erosion pattern which consistently erodes away the beach in the subject area, and the tendency of the beach to reestablish its former configuration, has made it difficult for the Club to maintain a wide beach in this area to protect the Club from high tides and storm surges.” (COE Exh. GG at 699 [bold italics added].)

· In 2016, consultant Moffatt & Nichol issued a report for Petitioner titled “Bel-Air Bay Club Beach Preservation Study,” which analyzed “the existing and future stability of the beach, and propose[d] possible methods to preserve the beach as well as mitigate storm impacts to the BABC facilities.” (COE Exh. CC at 596.) The report noted that “BABC beach facilities are particularly susceptible to damage from storm events due to exposure of the shoreline” and summarized several storm events that caused damage to the BABC facilities during the lifespan of the Lanai. (Id. at 607.)

· In a letter to the Commission dated July 16, 2019, Moffatt & Nichol responded to a request for clarification about which portions of the Club facilities will benefit from sand berm protection against flooding. Moffat & Nichol stated: “Generally speaking, areas directly landward of/behind the berm will benefit most from berm protection against flooding…. These areas include the … the lanai …. While the eastern and western portions of the property are protected by a relatively deeply embedded seawall, the lanai area immediately seaward of the central club is under-protected, being fronted by a shallow garden wall type structure. This central wall structure is overtopped during high tide or combined moderate tide plus swell events…. Furthermore, this structure is susceptible to scour and undermining, particularly at the westernmost section. Further scour poses the potential to undermine the lanai structure.” (COE Exh. OO at 887-887 [emphasis added].)

· In December 2019, consultant Moffatt & Nichol issued a report for Petitioner titled “Berm Alternative Analysis II,” which analyzed alternatives “to respond to wave caused erosion on high tide events on site.” (COE Exh. NN at 862.) This report analyzed, among other things, alternatives involving the relocation or removal of the Lanai. (Id. at 865, 873.) As an example, the report states: “The Club has concerns that demolition of the existing lanai could have repercussions for the remaining portions of the Club, as its removal would expose the central Club buildings to potential flooding, absent a sand berm.” (COE Exh. NN at 865 [bold italics added].) In addition, “[t]he Club has analyzed the preliminary feasibility of raising the lanai to reduce the exposure of this structure to wave caused damage and flooding.” (Id. at 873 [bold italics added].)

· In February 2020, consultant Moffatt & Nichol issued a report for Petitioner titled, “Expanded Sea Level Rise Assessment,” which described the risk to the BABC facility from wave surge. Among other things, the report stated: “During high tide events, waves have traversed the beach and reached Club facilities causing damage and debris build-up.” (COE Exh. DD at 653.) The report also stated that “flooding of outdoor Bel-Air Bay Club structures has been documented in the past under moderate to high tide and storm conditions and under various beach width conditions.” (Id. at 660.)

In sum, the record contains substantial evidence the Lanai is built directly upon a compressed sand foundation, is located “immediately seaward” of the club, and has been exposed to periodic wave action and occasional flooding for many years, including during multiple severe storm events that occurred prior to January 2023. Petitioner’s own consultant, Moffat & Nichol, has acknowledged in reports between 2016 and 2020, well before the January 2023 storm, that the Lanai is exposed to “scour and undermining” and “flooding,” that “further scour poses the potential to undermine the lanai structure,” and that the Lanai is susceptible to “wave caused damage and flooding.” (See OB 5:8-9; COE Exh. T at 459; Exh. OO at 887-887; Exh. NN at 865, 873; and Exh. DD at 660.) A reasonable person could conclude from this evidence that the Lanai was susceptible to damage from recurrent wave uprush and occasional flooding and that the Lanai was damaged as a result of many years of wave action during its 70-year existence. A reasonable person could also conclude that, because of this alternate explanation for the damage, the January 2023 storm event did not cause the damage to the Lanai.

Petitioner argues that damage to the Lanai “resulted from greatly increased wave intensity and velocity and corresponding sand erosion resulting from high tides, extreme rainfall, and wind-driven surf” that occurred during the January 2023 storms. (OB 14.) Petitioner ignores the deferential standard of review. Petitioner must show that Respondent’s decision was arbitrary, capricious, and entirely lacking in evidentiary support. This standard is highly deferential to the agency’s action. (State Bd. Of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 977 [“Writ review under Code of Civil Procedure section 1085 is even more deferential” than the substantial evidence standard of review that applies under CCP section 1094.5]) “When the evidence on an issue conflicts, the decisionmaker is ‘permitted to give more weight to some of the evidence ….’” (Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 349.) The court “do[es] not weigh conflicting evidence, as that is the role of the public agency.” (Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, 960.)

Along with photos of the damage to the Lanai, Petitioner submits approximately an hour of security camera video footage taken the morning of January 6, 2023, which Petitioner “compressed … into a couple of seconds.” (Eiselman Decl. ¶ 12, Exh. Z.) Petitioner produced the non-compressed video footage to Respondent in November 2023, in discovery in this action. (Ibid.) Petitioner argues: “Time-lapsed security camera video from that morning . . . shows the southwest corner of the Lanai collapsing very shortly after the storm subsided.” (OB 14:25-26.) Petitioner also relies on a series of photographs. This evidence does not demonstrate that the Commission’s finding to the contrary was “arbitrary, capricious, or entirely lacking in evidentiary support.” As Respondent notes, the video does not show that the Lanai was damaged by strong or large waves crashing on top of it. (Oppo. 14:3-6.) Neither do Petitioner’s photographs. Petitioner has not submitted any expert declaration, deposition testimony, or report opining, based on the photos, video, or other evidence, that the damage to the Lanai was caused by the January 2023 storm. To the contrary, Respondent’s finding that the damage was caused by many years of wave action is based on reasonable inferences from statements in the expert reports of Moffatt & Nichol, Petitioner’s own coastal engineer. Even if the storm was a contributing factor—“the straw that broke the camel’s back”—Petitioner does not establish that the storm was the predominate—if not the sole—causal factor in the damage to the Lanai.

Petitioner asserts that “[i]n its 70-year existence, BABC has not needed to conduct any major repairs to the Lanai.” (OB 15:1-2.) Relatedly, Petitioner asserts that “evidence shows that no major run-up from waves has eroded the compacted layer of sand underneath the Lanai’s concrete slab or otherwise undermined the Lanai, and the Lanai structure has not been subject to scouring.” (OB 15:2-5.) Petitioner does not provide a record citation supporting either contention. Further, the Moffat & Nichol reports show that the Lanai has been subject to scouring and that Petitioner has been concerned about damage to the Lanai from wave action and flooding. (COE Exh. OO at 887-887; Exh. NN at 865, 873.) The fact that Petitioner may not have performed major repairs to the Lanai in the face of such concerns could reasonably support the Commission’s decision that the collapse was caused by unaddressed damage from wave action, scouring, and occasional flooding over many years.

Petitioner contends that “[a] report submitted to the Commission in November 2022 by BABC’s coastal engineers … contains data of monthly beach width measurements taken over a two-year period through August 2022 … [and] confirms that there was abundant sand on the beach and contains no evidence of sand having been scoured out from under the Lanai.” (OB 15:5-9, citing COE Exh. V at 509-512.) Petitioner does not provide a cogent discussion of the cited evidence. Nor does Petitioner cite any expert opinions in the November 2022 report that are relevant to this case or that contradict the other evidence from Moffat & Nichol. In any event, the court cannot weigh this evidence given the deferential standard of review.

In responding to Respondent’s evidence, Petitioner argues that Respondent “relies on documents not addressed in the Denial Letter in an attempt to bolster the letter’s reasoning.” (Reply 9.) Contrary to Petitioner’s assertion, Respondent does not rely on the reports summarized above for a post hoc rationalization, but rather to support the findings stated in the Decision. Petitioner cites no authority that Respondent was required to “address” all relevant evidence in its determination letter. Indeed, Petitioner itself relies on evidence, including the compressed video footage, that was not made available to Respondent until November 2023, well after the exemption decision was made. Regardless, Petitioner acknowledges that some of Respondent’s evidence, specifically the staff report for the 2004 CDPs and two Moffatt & Nichol studies, were relied upon by Respondent’s staff in the exemption decision. (Reply 10:2-3.) This evidence standing alone is sufficient to support the Commission’s decision.

Petitioner also asserts that the Moffitt & Nichol reports do not “help the Commission.” (Reply 10; see also OB 15-16.) However, Petitioner does not persuasively address this evidence. For instance, Petitioner states that the “Berm Alternatives Analysis II states nowhere that the Lanai has historically undergone scour or flooding.” (Reply 10.) Petitioner ignores the statements in Moffat & Nichol’s July 2019 letter and December report that the Lanai is exposed to “scour and undermining” and “flooding,” that “further scour poses the potential to undermine the lanai structure,” and that the Lanai is susceptible to “wave caused damage and flooding.” (COE Exh. OO at 887-887; Exh. NN at 865, 873.) This evidence from Moffat & Nichol’s July 2019 letter and December report supports Respondent’s decision that the Disaster Exemption does not apply, and detracts from Petitioner’s contrary position. Further, given the evidence that the Lanai is subject to scour, wave action, and occasional flooding, it is not dispositive that the Lanai is projected to be subject to more serious “flood hazards” under a 0.8 foot sea level rise scenario. (See OB 16:12-5, citing COE Exh. DD at 665-666.) Indeed, the same report cited by Petitioner acknowledges that “flooding of outdoor Bel-Air Bay Club structures has been documented in the past under moderate to high tide and storm conditions and under various beach width conditions.” (COE Exh. DD at 660-661.)

In sum, assuming the Lanai was “destroyed” within the meaning of section 30610(g), the court agrees with the Commission’s interpretation that the Disaster Exemption applies to structures that are destroyed predominantly—if not exclusively—by a natural disaster. In this case, the Commission found that the Lanai was damaged predominantly or exclusively as “the consequence of years of flooding and scouring caused by wave action.” Among other things, the Commission relied on Petitioner’s own admissions and evidence:

[T]he applicant has previously acknowledged that the lanai structure is subject to periodic flooding and scouring due to the structure’s hazardous location. The applicant’s coastal consultants also recognized in more recent studies that the lanai structure would be subject to intermittent wave uprush and flooding and would also become increasingly vulnerable to coastal hazards with sea level rise.

(COE Exh. D.) Petitioner does not demonstrate that the Commission’s finding was “arbitrary, capricious, or entirely lacking in evidentiary support.”

Petitioner argues that the Commission’s decision is arbitrary or capricious because its denial of Petitioner’s application is inconsistent with other applications that it granted. (OB 13-14; Reply 12-13.) In October 2014, Guided Discoveries submitted an application under section 30610(g) alleging that “the landing pier at Buttonshell Beach (Camp Fox) on Catalina Island was destroyed by wave action from hurricane Marie.” (COE Exh. B.) The application noted that the pier was the “only means of access to the youth camp.” (Ibid.) A photograph and drawing submitted with the application showed that approximately 61% of the pier (158 feet divided by 257 feet) was destroyed by the hurricane event. (Ibid.) The Commission issued the exemption under Section 30610(g) to “[r]eplace a 257-foot long recreational pier damaged by storm waves” and to construct a “new 257-foot long timber pier in the same footprint.” (COE Exh. C at 70.) Similarly, in April 2015, Commission issued an exemption under section 30610(g) to replace a 262-foot long recreational pier at White’s Landing in Catalina that was also damaged by Hurricane Marie. (COE Exh. D, E.) Neither of these decisions proves an inconsistency in how the Commission reviews applications under section 30610(g). The granted applications were to replace piers that had been “destroyed” within the meaning of section 30610(g). Moreover, the Commission reasonably could have concluded that these piers were destroyed by Hurricane Marie rather than approximately 75 years of wave action. Finally, even if the Commission erred in granting one or both of these exemptions, it does not establish that it acted arbitrarily or capriciously in this case.

Respondent cites a decision from 2011, in which the Commission determined that an application for a rock revetment was not exempt under Section 30610(g). (COE Exh. RR at 950.) The Commission explained its decision, as follows:

A disaster is a particular, non-routine, event that causes harm or property damage. The Coastal Act further narrows the common definition of a disaster to include only those situations in which the forces that caused the destruction are beyond the property owner's control. The proposed project is intended to restore the effectiveness of a revetment which has gradually deteriorated over the years due to normal weathering and wave action. The need for regular repair and maintenance is expected and inherent with structures subject to wave and tidal action, and the Commission has never considered development such as this to be replacement of a structure destroyed by a disaster.

(COE Exh. RR at 950.) The Commission denied the exemption based on evidence that “repair and maintenance of the revetment was being considered by the applicant before the storm event now cited as a ‘disaster’.” (Id. Exh. SS at 964.) This demonstrates a consistency in how the Commission reviews applications for the Disaster Exemption.

The Commission argues that the Lanai was not “destroyed” within the meaning of section 30610(g). The Commission takes the position that a structure is “destroyed” within the meaning of the statute when 50 percent or more has been impacted by the disaster, i.e., when the majority of the structure has been rendered useless. The Commission relies on California Code of Regulations, Title 14, section 13252, which states that replacement of 50 percent or more of a structure constitutes a “replacement structure.” (14 Cal. Code Regs. § 13252(b).) In this case, Petitioner seeks to replace 39.4 percent of the Lanai’s surface with new concrete and to do so some “spot repairs” to the perimeter wall and fill/compact sand underneath the new concrete. Accordingly, the Commission argues that section 30610(g) does not apply.

Respondent did not expressly deny Petitioner’s application for the Disaster Exemption on this basis. (See COE Exh U.) Generally, courts do not accept post hoc rationalization for agency action, but rather review the findings that were made by the agency. (See Motor Vehicle Mfrs. Assn. v. State Farm Mut. (1983) 463 U.S. 29, 50 [“It is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself”]; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 81.) Because the court finds that the Commission’s decision to deny the exemption was not arbitrary, capricious, or lacking in evidence for other reasons, the court need not address whether the Commission’s interpretation of “destroyed” is correct.[2]

In a footnote, Respondent argues: “The Denial Letter also asserted that the separate ‘repair and maintenance exemption under Section 30610 did not apply.” (OB 17 fn. 5.) It appears that the Commission, upon deciding that the Disaster Exemption did not apply, construed the application as seeking a “Repair and Maintenance” exemption under Public Resources Code section 30610(d). This section provides an exemption for repairs that “do not result in an addition to, or enlargement or expansion of, the object of those repairs” unless “the commission determines that certain extraordinary methods of repair and maintenance involve a risk of substantial adverse environmental impact . . . .” (Pub. Resources Code § 30610(d).) The Commission’s regulation state that this exemption does not apply to:

Any repair . . . to facilities or structures or work located in . . . any sand area . . . or within 20 feet of coastal waters or streams that include: (A) The placement or removal, whether temporary or permanent, of rip-rap, rocks, sand or other beach materials or any other forms of solid materials; [or] (B) The presence, whether temporary or permanent, of mechanized equipment or construction materials.

(14 Cal. Code Regs. § 13252(a)(2).) The Decision then denied the application on this basis. (See COE Exh. U.)

Because Petitioner did not seek an exemption under section 30610(d), the court considered whether to grant the petition only with respect to this finding so Petitioner could submit a formal application for an exemption under section 30610(d). The court declines to do so for several reasons. Petitioner does not seek that relief, focusing exclusively on the Disaster Exemption. Nor does Petitioner articulate any additional information that would be included in a new application. Accordingly, it is clear that Petitioner does not qualify for the “Repair Exemption” under section 30610(d) because the project would involve placement of “sand or other beach materials or other forms of solid materials,” i.e., concrete. To the extent the Commission erred in considering an exemption Petitioner did not request, the error was harmless.

Petitioner’s second cause of action seeks declaratory relief. A declaratory relief action is inappropriate when a plaintiff has an adequate remedy on other causes of action at trial. (See Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324; California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1624.)

The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.

(General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) In this case, the claim for declaratory relief is derivative of the petition for writ of mandate. The Court has discretion to decline to issue a declaratory judgment under these circumstances. (See AICCO, Inc. v. Insurance Company of North America (2001) 90 Cal.App.4th 579, 590.) Accordingly, the court rules in favor of Respondent, and against Petitioner, on this cause of action. In the alternative, the court rules in favor of Respondent, and against Petitioner, for the same reasons it denies the writ of mandate.

2. The court rules in favor of Respondent, and against Petitioner, on the second cause of action for declaratory relief.

3. Respondent shall prepare and lodge a proposed judgment forthwith. If Respondent fails to do so within a reasonable period of time, Petitioner may prepare and lodge a proposed judgment.

[1] Neither party has cited a published appellate decision interpreting section 30610(g).

[2] Respondent makes additional arguments. Respondent argues that “[t]he disaster exemption is also unavailable because the force that damaged the lanai was not beyond BABC’s control.” (Oppo. 15-16.) Respondent also argues that the Decision is consistent with Coastal Act Objectives and also special conditions in the 2004 CDPs. (Oppo. 18-19.) The court need not address these arguments.