Kennedy v. South Coast Regional Com.

• Decision Date: 30 March 1977
• Court: California Court of Appeals Court of Appeals
• Parties: Marvena KENNEDY et al., Petitioners and Appellants, v. The SOUTH COAST REGIONAL COASTAL ZONE CONSERVATION COMMISSION OF LOS ANGELES AND ORANGE COUNTIES, and Michael Epstein, et al., Respondents. Civ. 47682.

Page 396

137 Cal.Rptr. 396

68 Cal.App.3d 660

Marvena KENNEDY et al., Petitioners and Appellants, v. The SOUTH COAST REGIONAL COASTAL ZONE CONSERVATION COMMISSION OF LOS ANGELES AND ORANGE COUNTIES, and Michael Epstein, et al., Respondents.

Civ. 47682.

Court of Appeal, Second District, Division 3, California.

March 30, 1977.

Buckley & Siegel and Marguerite M. Buckley, Santa Monica, for petitioners and appellants.

Cadoo, Tretheway, McGinn & Morgan, and Alvin S. Tobias, Marina Del Rey, for respondents Michael Epstein, et al.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., and Alan Robert Block, Deputy Atty. Gen., for respondent The South Coast Regional Coastal Zone Conservation Commission of Los Angeles and Orange Counties.

POTTER, Associate Justice.

Petitioners Marvena Kennedy, Richard Davidson, Robert Wells and Ron Guenther (hereinafter 'petitioners') appeal from the judgment of the superior court denying their petition for writ of mandate. The petition challenged the validity of a permit issued by respondent The South Coast Regional Coastal Zone Conservation Commission of Los Angeles and Orange Counties (hereinafter 'Regional Commission') authorizing respondent Michael Epstein, et al. (hereinafter 'Epstein') to proceed with a development of property in the Venice area of the City of Los Angeles within the 'Coastal Zone' 'permit area' defined in Public Resources Code ¹ section 27104.

As the basis for setting aside the permit granted to Epstein by the Regional Commission, the petition alleged that petitioners were residents of Venice 'directly adversely affected by' Epstein's proposed apartment project authorized by the permit. One petitioner was further described as a 'resident property owner of real property located in Venice . . ..' The petition alleged that the permit issued November 4, 1974, was 'in all respects void as its issuance was not in compliance with the requirements of the Act' because (1) the notice of hearing on Epstein's application failed to state that an occupied house and a landmark tree were to be demolished, (2) the Commission did not consider the effect of the demolition of the house and tree, and (3) the Commission failed to act within the time limits for granting a permit from the time of filing of application therefor. Petitioners justified their failure to exhaust the administrative remedy of appeal to the California Coastal Zone Commission provided by the Code (section 27420, subdivision (c)), and their failure to bring mandamus proceedings within 60 days of the granting of such permit, as required by the Code (section 27424), by averring in the petition a lack of knowledge until May 7, 1975, that the development entailed demolition of the dwelling and tree, as a result of the inadequacy of the public notice.

The petition attached as exhibits the declaration of petitioner Robert Wells supporting the allegations of lack of knowledge of the intended destruction of the dwelling and tree. This declaration attached copies of Epstein's application, the notice of public hearing, the resolution of approval and permit, photographs showing the tree and dwelling, the Regional Commission's agenda for its session at which the application was acted upon, the staff summary and recommendations submitted to the Regional Commission, excerpts from its minutes of the hearing on the permit, letter of petitioner Robert Wells of May 8, 1975, to the Regional Commission requesting revocation of the permit, City of Los Angeles forms approving the project, and Epstein's acknowledgment of receipt of the permit. Petitioners' objection to the sufficiency of the notice included the claim that the address specified in the notice (415 North Venice Boulevard) as the address of the project was fraudulent inasmuch as the development actually encompassed three lots, the addresses of which were or had been 415, 419 and 423 North Venice Boulevard, the latter address being that of the lot upon which the dwelling and tree were in fact located.

Epstein demurred to the petition and simultaneously filed a response. The response included three declarations traversing petitioner's charges as to the (a) inadequacy of the notice of the hearing on the application for the permit, and (b) the alleged failure of the Regional Commission to consider the effect of demolition of the dwelling and tree.

The declarations attached to Epstein's response included that of Melvin J. Carpenter, Executive Director of the Regional Commission. His declaration stated that during the presentation made at the hearing, slides showing the three lots which were the subject of the permit were projected which 'clearly demonstrated that there was an existing sixty (60) foot tree and an existing structure.' He further stated that 'the plans (Epstein's) submitted to the Commission showed the proposed structure would cover all three (3) lots and left no doubt that the tree and existing building would have to be removed to permit the proposed structure to be built.' The declaration further stated that notices of the hearing which described the development as 'construction of an 8-unit apartment building at 415 N. Venice Bldg. Venice' were mailed to all property owners whose property lay within 100 feet of the building site, in accordance with the provisions of Title 14, California Administrative Code, sections 13250--13281.

The declaration of Alan Robert Block, an attorney employed by the Department of Justice, stated that the public notice had been found sufficient by the Attorney General because the permit application itself contained a legal description including all three lots and the notice of public hearing was posted on the house which was on the same lot as the tree. This declaration added, 'It has not been the Commissions (sic) practice to require a separate permit application for demolition when one has been applied for and issued for the construction of a project on the same property.'

The declaration of Alvin S. Tobias, counsel for respondent Epstein, added that the tree had already been removed at the time the response was filed. He further stated that the dwelling 'is in fact uninhabited, has been condemned, contains no toilet facilities or other living facilities and has no electric current.'

Respondent Regional Commission demurred to the petition and on the same date also filed its return denying material allegations of the petition and raising defenses based upon petitioners' failure to exhaust their administrative remedy or bring suit within the 60-day limitation specified in section 27424 of the Code.

The matter was submitted to the court on the above described pleadings with attached exhibits and declarations and the memoranda of points and authorities. On July 2, 1975, the court filed an order stating reasons for the court's view that the notice of public hearing was sufficient. In said order the court stated:

'The project was described in the Permit Application and Notice as 'construction of an 8-unit apartment building . . . at 415 North Venice Boulevard.' It would be redundant to require as petitioners request, a separate permit or even an expanded project description to encompass the demolition of existing structures and removal of vegetation; such demolition and removal are obviously implied in a permit for construction.

'It is also apparent that petitioners had constructive notice that the project site additionally included 419 and 423 North Venice Boulevard. The legal description of the parcel in the Permit Application stated that work was proposed on ,'lot 5, 6 & 7.' The Notice of Public Hearing was posted on the structure at 423 North Venice. Furthermore, even a cursory site inspection would have indicated the substantial improbability of constructing an eight- unit complex within the boundaries of 415 North Venice, a triangular lot of only 2720 square feet,'

On July 18, 1975, the court made and entered its order declaring:

'1. Coastal Development Permit P--3669 was issued validly by the South Coast Regional Commission with proper notice in accordance with Public Resources Code section 27420(b).'

The court also ordered:

'3. That petitioners' peremptory writ of mandate is denied;

'4. That Respondent South Coast Regional Commission is awarded cost of suit herein incurred, in the amount of $13.00.'

This order was entered as a judgment on July 18, 1975. The notice of appeal therefrom was duly filed August 29, 1975.

Contentions

Petitioners contend:

1. That the action of respondent Regional Commission in issuing a permit to respondent Epstein was in excess of jurisdiction and void because the public notice of the hearing on Epstein's application:

(a) Was insufficient to comply with the requirements of section 27420, subdivision (b), of the Code; and

(b) Was not reasonable notice required by the due process clauses of the state and federal Constitutions.

2. In view of the absence of notice to petitioners, their failure to exhaust the administrative remedies or to bring mandamus proceedings within the 60-day period specified by section 27424 of the Code is excused. ²

Respondents Epstein and Regional Commission both take issue with each of petitioners' contentions.

Discussion

The trial court has found, on the basis of the declarations and exhibits submitted, that demolition and removal of the dwelling and tree were 'obviously implied in a permit for construction' of an 8-unit apartment building upon Epstein's property, and that the public notice was sufficient to impart knowledge that the project site included all three lots described in the application.

As our Supreme Court said in Taormino v. Denny, 1 Cal.3d 679, 687, 83 Cal.Rptr. 359, 364, 463 P.2d 711, 716: 'The trial court is the arbiter of the facts, and this court cannot upset its decision as a matter of law when substantial evidence supports the judgment.' On appeal, we are bound to 'view the evidence in the light most favorable...