Davis v. California Coastal Zone Conservation Com.

• Decision Date: 26 April 1976
• Citation: 129 Cal.Rptr. 417,57 Cal.App.3d 700
• Court: California Court of Appeals
• Parties: Richard DAVIS, Plaintiff and Respondent, v. CALIFORNIA COASTAL ZONE CONSERVATION COMMISSION, Defendant and Appellant. Civ. 37679.

Page 417

129 Cal.Rptr. 417

57 Cal.App.3d 700

Richard DAVIS, Plaintiff and Respondent, v. CALIFORNIA COASTAL ZONE CONSERVATION COMMISSION, Defendant and Appellant.

Civ. 37679.

Court of Appeal, First District, Division 4, California.

April 26, 1976.

Hearing Denied June 24, 1976.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., Roderick Walston, Daniel J. Taaffe, Deputy Attys. Gen., San Francisco, for defendant-appellant.

James A. Kennedy, Stephen J. Kennedy, Oakland, for plaintiff-respondent.

CHRISTIAN, Associate Justice.

The California Coastal Zone Conservation Commission appeals from a judgment which mandated it to grant an application by respondent Richard Davis for a permit to build a residence on property which lies within the coastal zone (Pub.Resources Code, § 27100).

On May 7, 1974, respondent applied to the Regional Coastal Zone Conservation Commission, Central Coast Region ('Regional Commission') for a permit to allow construction of a single family residence on a 2.32-acre parcel in Del Monte Forest. After a hearing, the Regional Commission made findings and denied the permit application. Respondent appealed to the California Coastal Zone Conservation Commission ('State Commission'), but the State Commission determined that no substantial issue was raised by the appeal and declined to hear it. Respondent then sought review in the superior court, and obtained a judgment directing the State Commission to issue a permit.

Appellant State Commission contends that the judgment mandating it to issue a permit was erroneous because respondent's petition stated no cause of action against the State Commission and because the writ would require the State Commission to act in excess of its jurisdiction: the petition named only the State Commission, and not the Regional Commission, as the responding party; and the writ directs the State Commission to issue a permit to authorize respondent to build upon his property.

The six regional coastal commissions are charged with the responsibility of determining whether permits authorizing development within the coastal zone 'permit area' should issue. (Pub.Resources Code, §§ 27104, 27201, 27400.) ¹ Regional Commission action upon a permit application becomes final ten working days after the decision is rendered unless an appeal is filed within that time period. (§ 27420 subd. (c).) ² Applicants or other aggrieved persons may appeal to the State Commission. (§ 27423, subd. (a).) On such an appeal the State Commission may affirm, reverse, or modify the Regional Commission's decision, but prior to such action the State Commission is required to hold a De novo public hearing. (§ 27423, subds. (b), (c).) Alternatively, the State Commission may decline to hear an appeal if it finds that no substantial issues are presented by the appeal. (§ 27423, subd. (c); Cal.Admin.Code, tit. 14, § 13920.) If the State Commission declines to hear the appeal, the Regional Commission's decision becomes final immediately. (Cal.Admin.Code, tit. 14, § 13934; ³ see § 27240, subd. (d) (authorizing the commissions to adopt reasonable and necessary regulations).) If the State Commission fails to act within 60 days of the notice of appeal from the Regional Commission's decision, the Regional Commission's decision becomes final. (§ 27423, subd. (b).)

In addition to the provisions for administrative appeal, there is a provision for judicial review:

Any person, including an applicant for a permit, aggrieved by the decision or action of the commission or regional commission shall have a right to judicial review of such decision or action by filing a petition for a writ of mandate * * * In accordance with the provisions of Chapter 2, (commencing with Section 1084) Of Title 1 of Part 3 of the Code of Civil Procedure, within 60 days after such decision or action has become final.

(§ 27424.)

In the present case, the relief sought by the petition, and granted by the court in issuing the writ of mandate, did not require the State Commission to entertain the appeal; the judgment went further and required the State Commission to issue a development permit. Before the State Commission may act in any manner upon an appeal of a regional commission's action on a permit application, the State Commission is required to hold a De novo public hearing upon the application. (§ 27423, subd. (c).) If the State Commission were to proceed to issue a development permit without such a prior hearing, it would be acting in excess of its statutory authority. The only remedy against the State Commission where it declines to hear an appeal is a judicial direction to hear the appeal and, after hearing the appeal, to exercise its discretion in the manner directed by the statutes. ⁴ Instead, the relief granted by the trial court directed the State Commission to issue a development permit without first holding a De novo public hearing on the permit application and without having an opportunity to make the findings required by the Act. Mandate does not lie to compel performance of an act contrary to law; therefore it was improper to render judgment for issuance of a writ of mandate to compel the State Commission to grant a development permit. (See 5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, § 66, p. 3844.)

Respondent asserts that the State and Regional Commissions are not independent entities, so that by naming the State Commission as the responding party in the petition for writ of mandate, respondent also effectively stated a cause of action against the Regional Commission. But the petition did not seek, and the judgment did not grant, any relief against the Regional Commission. Respondent chose to seek a writ of mandate against the State Commission, and the only relief available against the State Commission by way of mandate was a direction that it hear the appeal pursuant to the procedures provided by section 27423, subdivision (c).

It might be though appropriate for this court to modify the judgment to provide for a proper direction to the State Commission to entertain the appeal. But, as we shall see, the record would not have supported such an order by the trial court; therefore, this court should not direct the State Commission to take jurisdiction.

A preliminary question is whether Coastal Commission action on permit applications is quasi-legislative, and therefore to be upheld unless determined to be arbitrary, or quasi-judicial, and therefore to be upheld unless determined to be unsupported by substantial evidence. 'Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts.' (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, n. 2 at 35, 112 Cal.Rptr. 805, 809, 520 P.2d 29, 33; Quinchard v. Board of Trustees (1896) 113 Cal. 664, 670, 45 P. 856; City Council v. Superior Court (1960) 179 Cal.App.2d 389, 393, 3 Cal.Rptr. 796.) 'Whenever an act undertakes to determine a question of right or obligation, or of property, as the foundation upon which it proceeds, such act is to that extent a judicial one, and not the proper exercise of legislative functions.' (Wulzen v. Board of Supervisors (1894) 101 Cal. 15, 24, 35 P. 353, 356; quoting Sinking-Fund Cases (1878) 99 U.S. 700, 761, 25 L.Ed. 496; People v. Oakland Board of Education (1880) 54 Cal. 375, 376.) The procedural characteristics of an administrative process do not necessarily determine whether that process is quasi-judicial or quasi-legislative. (Rivera v. Division of Industrial Welfare (1968) 265 Cal.App.2d 576, 586--587, 71 Cal.Rptr. 739; Wilson v. Hidden Valley Municipal Water District (1967) 256 Cal.App.2d 271, 279, 63 Cal.Rptr. 889; City Council v. Superior Court, supra, 179 Cal.App.2d at 393, 3 Cal.Rptr. 796.) The State and Regional Commissions perform two functions: both are involved in the preparation of the California Coastal Zone Conservation Plan for submission to the Legislature for its eventual adoption and implementation of the plan (§§ 27300, 27320); both the State and Regional Commissions are involved in the granting or denying of applications for development permits, the Regional Commissions in the first instance, and the State Commission upon any appeal. (§§ 27400, 27420, 27423.) The planning function entails the formulation of rules, by way of planning for future uses of the coastal zone, to be applied in all future cases; it is thus quasi-legislative. The permit-issuing function, on the other hand, involves an ad hoc determination upon each application '(a) That the development will not have any substantial adverse environmental or ecological effect' and '(b) That the development is consistent with the findings and declarations set forth in Section 27001 and with the objectives set forth in Section 27302.' (§ 27402; see § 27423, subd. (c).) Section 27001 states the general state policy with regard to use of the coastal zone ⁵ and section 27302 provides the bojectives of the Coastal Zone Plan. ⁶ Action upon permit applications is adjudicatory or quasi-judicial; it involves the application of presently existing rules, although broadly stated, to specific sets of existing facts. The Supreme Court and several Courts of Appeal have assumed the characterization of the permit function in entertaining actions under Code of Civil Procedure section 1094.5 for review of permit and exemption decisions. (See, e.g., Urban Renewal Agency v. California Coastal Zone Conservation Commission (1975) 15 Cal.3d 577, 125 Cal.Rptr. 485, 542 P.2d 645; State of California v. Superior Court (1974) 12 Cal.3d 237, 115 Cal.Rptr. 497, 524 P.2d 1281; Aries Development Co. v. California Coastal Zone Conservation Commission (1975) 48 Cal.App.3d 534, 122 Cal.Rptr. 315; Transcentury Properties, Inc. v. State of California (1974) 41 Cal.App.3d 835, 116...