Ciani v. San Diego Trust & Savings Bank

• Citation: 285 Cal.Rptr. 699,233 Cal.App.3d 1604
• Decision Date: 12 September 1991
• Docket Number: No. D015057,D015057
• Court: California Court of Appeals Court of Appeals
• Parties: Anthony Alfred CIANI, Plaintiff and Appellant, v. SAN DIEGO TRUST AND SAVINGS BANK, as Trustee, etc., et al., Defendants and Respondents. CALIFORNIA COASTAL COMMISSION, Plaintiff and Appellant, v. SAN DIEGO TRUST AND SAVINGS BANK, as Trustee, etc., et al., Defendants and Respondents.

Page 699

285 Cal.Rptr. 699

233 Cal.App.3d 1604

Anthony Alfred CIANI, Plaintiff and Appellant, v. SAN DIEGO TRUST AND SAVINGS BANK, as Trustee, etc., et al., Defendants and Respondents.

CALIFORNIA COASTAL COMMISSION, Plaintiff and Appellant, v. SAN DIEGO TRUST AND SAVINGS BANK, as Trustee, etc., et al., Defendants and Respondents.

No. D015057.

Court of Appeal, Fourth District, Division 1, California.

Sept. 12, 1991.

Rehearing Denied Oct. 3, 1991.

Review Denied Nov. 27, 1991.

McDougal and Associates, Sandra J. Brower and JoAnne D. Roake, La Jolla, for plaintiff and appellant Anthony Alfred Ciani.

Daniel E. Lungren, Atty. Gen., Richard M. Frank, Acting Asst. Atty. Gen., and Jamee Jordan Patterson, Deputy Atty. Gen., for plaintiff and appellant California Coastal Com'n.

Luce, Forward, Hamilton & Scripps, Charles V. Berwanger, Jeffrey A. Chine and Franne M. Ficara, San Diego, for defendants and respondents.

FROEHLICH, Associate Justice.

We deal here with two petitions for extraordinary relief arising from two superior court actions, which were consolidated for all purposes. The petitions have also been filed with this court in consolidated form, and we treat them as consolidated for all purposes.

The petitioners here and plaintiffs in the superior court are Anthony Alfred Ciani, an individual (Ciani), and the California Coastal Commission (Coastal Commission). The defendant in the superior court and real party in interest responding to the petitions in this court is San Diego Trust and Savings Bank, as Trustee of the Jack M. Mosher and Alice F. Mosher Trust (referred to herein as Mosher Trust or simply Trust). The dispute involves the attempts by the Mosher Trust to achieve demolition of old structures located on land it owns in La Jolla. Ciani, as an interested third party, and the Coastal Commission contend the Trust has illegally commenced demolition of the structures and ask this court to issue a writ of supersedeas or other extraordinary relief restraining such demolition. We issued a temporary restraint, and now consider whether to extend the temporary order or to grant other relief. We conclude that the superior court erred in certain crucial conclusions of law it reached in the interpretation of statutes and administrative regulations. We therefore issue the writ of supersedeas, reversing the court's order which denied a preliminary injunction, and remand the case to the superior court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The Mosher Trust has long owned land on Prospect Street and Coast Boulevard in La Jolla. The realty is improved with several structures, four of which are the subject of this action. These structures were originally built in the early 1900s and became known as the "Green Dragon Colony." The buildings were used over the years for both residential and commercial purposes, but in current times have been unoccupied. Those who seek preservation of the structures see them as representative of the "village" nature that once was La Jolla and contend they have historic significance warranting their preservation. The Mosher Trust emphasizes that the buildings themselves are poorly designed and it is uneconomic to maintain or improve them. It refers to them throughout pleadings and petitions as the "Dilapidated Structures."

In 1973 the Historic Site Board designated the Green Dragon Colony site as an historic landmark, but declined to include the structures themselves in any historic category for preservation. The Board reconsidered the status of the buildings in 1986, based upon a request and evidence submitted by Ciani, and designated the four structures as historic buildings. This designation triggered an obligation under the California Environmental Quality Act (CEQA) for the preparation of an environmental impact report (EIR) as a precondition to issuance of a demolition permit (see San Diego Trust & Savings Bank v. Friends of Gill (1981) 121 Cal.App.3d 203, 212, 174 Cal.Rptr. 784). In 1987 the Trust filed an application with the City for a demolition permit, and caused commencement of the preparation of the EIR. After several public hearings, a draft report was filed and circulated. On October 11, 1988, the City Council certified the EIR as being in compliance with CEQA, and appropriate notice and posting of this action was thereafter achieved.

In that the realty is located on a bluff overlooking the ocean in La Jolla, it is within the California Coastal Zone. The demolition of the Green Dragon Colony structures therefore required the obtaining of a coastal development permit. (Pub.Resources Code, §§ 30600, 30106.) The application for a coastal development permit was made to the City of San Diego, which acted as the delegated agency to administer local coastal permits (see Pub.Resources Code, § 30600.5). This application was made on February 8, 1990.

The City took no adequate action (at least as revealed by our record) on the coastal development permit application or the demolition application. As a result, the Trust attempted to invoke the provisions of the Permit Streamlining Act (hereafter sometimes referred to as "Streamlining Act" or "the Act"). ¹ (GOV.CODE, § 65921², et seq.) The provisions of this Act purport to provide automatic approval of permit applications upon which no action is taken by the responsible agency for a specified period of time. It appears that the EIR prepared for the project had been approved and the application for demolition permit had long been on file. The final condition to the project, therefore, was the coastal development permit. It is conceded by the parties, and the definitional provisions of the Act compel the conclusion, that an application for a local coastal permit, made to the delegated coastal agency, is an application for a "development project" covered by the Act. (See §§ 65027-65934.)

Section 65950 provides that the lead agency shall have one year from the filing of a completed application to approve or disapprove the project. Section 65956, as amended in 1987, provides that failure to act within such period shall result in "deemed approval" of the project. A condition to this "deemed approval," however, is that (a) the applicant give the agency seven days' notice of its intent to give public notice, and (b) the applicant then give public notice (if the agency declines or omits to do so), not earlier than 60 days from the expiration of the time period in question, that the project is to be approved at the expiration of the 60-day period if the agency has not acted.

On February 14, 1991, the Trust sent a letter to the Planning Director of the City of San Diego in accordance with the seven-day notice provision of section 65956(b). Seven days following this notice, in order to comply with the second condition of 65956(b), the Trust caused a public notice to be sent to neighboring landowners and interested parties, specifying that "notice is hereby given that unless the City of San Diego takes action in this matter within sixty (60) days, Coastal Development Permit No. 90-0199 shall be deemed approved." While the one-year period for approval of the permit expired on February 8, 1991, the 60-day period following the date of public notice would not have expired until April 21, 1991.

The Trust on June 28, 1991, brought an action in superior court against the City for writ of mandate and declaratory relief, praying that the demolition permit and the coastal development permit be deemed approved, and also that the City be affirmatively required to issue the permits. On July 10, 1991, the City and the Trust entered into a stipulated agreement to issue the permits, and on the same day the permits were issued. Demolition of the four structures apparently commenced immediately, as an expert witness for the Trust later testified that as of July 11, "[i]t is my opinion that the four buildings which have been previously at the Green Dragon property have been demolished." Petitioners dispute the total demolition of the structures, however, and no factual determination one way or the other was made by the superior court. We assume for purposes of our hearing, therefore, that the structures have not been completely demolished.

Ciani and the Coastal Commission filed their petitions in this case on July 10, 1991. The Ciani petition sought a temporary restraining order and preliminary and permanent injunctions enjoining the issuance of demolition permits and the actual destruction of the buildings. The Coastal Commission petition prayed for the same relief and in addition asked for the imposition of civil penalties and punitive damages. The Ciani petition alleged in general terms the failure of the Trust to follow proper permit procedure. The Coastal Commission's petition more specifically relied upon a contention that any permit issued by the City could not become effective until a 10-day appeal period had passed, and hence the commencement of demolition on the day of issuance of the permit was a violation of the Coastal Act. On July 11, 1991, the superior court issued a temporary restraining order halting further demolition. The court then held a hearing on July 30, 1991, and ruled that the petitioners were not entitled to relief. A formal order denying the preliminary injunctions was filed July 31, 1991. The superior court stayed enforcement of this order, however, to permit application to this court for relief. We have stayed further demolition of the buildings pending this hearing.

The issue before this court, therefore, is whether the superior court erred in failing to issue a preliminary injunction. Ordinarily the superior court is vested with broad discretion in determining whether to grant or deny a preliminary injunction which would halt an owner's action on hisland. (See 6 Witkin, Cal.Procedure (3d ed. 1985) Provisional Remedies, §§ 288-290, pp. 247-249.) Where the grant or denial of a preliminary injunction...