Klitgaard & Jones, Inc. v. San Diego Coast Regional Com.

• Decision Date: 12 May 1975
• Citation: 121 Cal.Rptr. 650,48 Cal.App.3d 99
• Court: California Court of Appeals Court of Appeals
• Parties: KLITGAARD & JONES, INC., et al., Plaintiffs and Appellants, v. SAN DIEGO COAST REGIONAL COMMISSION and California Coastal Zone Conservation Commission, Defendants and Respondents. Civ. 14050.

Page 650

121 Cal.Rptr. 650

48 Cal.App.3d 99

KLITGAARD & JONES, INC., et al., Plaintiffs and Appellants, v. SAN DIEGO COAST REGIONAL COMMISSION and California Coastal Zone Conservation Commission, Defendants and Respondents.

Civ. 14050.

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

May 12, 1975.

Klitgaard & Jones, San Diego, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., and Anthony M. Summers, Deputy Atty. Gen., for defendants and respondents.

OPINION

WHELAN, Associate Justice. ^*

Klitgaard & Jones, Inc. and others doing business as Carlsbad Beach Club, a partnership (Club) have appealed from a judgment of the Superior Court of San Diego County, which denied their petition for a writ of mandate to the San Diego Coast Regional Commission (Regional Commission) and the California Coastal Zone Conservation Commission (State Commission).

Club is the owner of an unimproved lot which adjoins a public beach along the Pacific Ocean in the city of Carlsbad. The lot has a frontage of 175 feet along the coast. Upon the lot Club desires to place a four-story building with an unbroken frontage of 155 feet. This building would contain 16 apartment or condominium units. The property was acquired prior to the enactment of the California Coastal Zone Conservation Act of 1972 (Pub.Resources Code, Div. 18, §§ 27000--27650), hereinafter referred to as the 'Act.'

Club made application to the Regional Commission for a development permit under the Coastal Act. On May 4, 1973, the Regional Commission voted to issue the permit, rejecting the recommendation for denial made by the staff. An appeal was taken to the State Commission on May 11, 1973 by Donald Dwight Worden.

Hearing on the appeal was scheduled for June 6, 1973, but Club requested the hearing be continued to June 20, 1973. Club also requested that the hearing thereafter scheduled for June 20, 1973 be continued to July 5, 1973. Both those requests were granted, and the public hearing was held on July 5, 1973. On July 18 the State Commission voted to deny Club's application for a permit.

On July 31, 1973, Club filed a petition for writ of mandate in the San Diego County Superior Court, seeking review of the State Commission's decision and a peremptory writ of mandate.

The State and Regional Commissions answered the petition and also demurred. Ultimately, the trial court examined the record of administrative proceedings, overruled the demurrer, denied the motion for a peremptory writ, and entered judgment denying the peremptory writ.

The grounds alleged in the petition for writ of mandate were these: that the State Commission was without jurisdiction to hear the appeal because Worden had no standing to appeal and no substantial issues were raised on the appeal; that there was no evidence before the State Commission to support its finding that the proposed improvement was not consistent with the finding and declarations set forth in section 27001 and with the objectives set forth in section 27302. ¹

Club, on October 16, 1973, filed an amendment to its petition alleging that because the State Commission had not ruled on the appeal within 60 days after it was filed, the State Commission was without authority to reverse the action of the Regional Commission, and the decision of the Regional Commission became final upon the expiration of 60 days without decision by the State Commission.

To that the Commissions replied that the issue had not been presented to the State Commission; Club had not exhausted its administrative remedies and was estopped by its own conduct from asserting that the delay beyond the 60-day period resulted in an automatic affirmance of the Regional Commission's decision.

The court ruled on the matter on November 9, 1973.

Prior to May 30, 1973, the State Commission set the appeal for a hearing on June 6, 1973. On May 30, Club's counsel wrote to the State Commission, stating in part:

'Gentlemen:

'The hearing on the referenced appeal is presently set for June 6, 1973, in Monterey, California. In order to give us time to discuss our project with your staff in detail, We request that the public hearing on the appeal be continued to June 20, 1973 in Los Angeles. It is understood that this will mean extending the sixty-day period by fourteen days.' (Emphasis added.)

In compliance with that request, the State Commission reset the hearing for June 20.

On June 18, counsel for Club, who was also president of one of the corporate partners, wrote again to the State Commission requesting a further continuance to July 5 of the hearing that had been set for June 20, stating:

'This will extend the sixty day appeal period beyond that requested on May 30, 1973, by a like period.'

The trial court found that the hearing had been set for June 6 and continued, in the circumstances related above, and that if the periods of continuance requested by Club were deducted from the overall period between filing of the appeal and decision, the net period was less than 60 days.

The following findings were also made:

'DONALD DWIGHT WORDEN, the party initiating the appeal herein, has no direct proprietary, pecuniary or other interest in the realty involved in these proceedings, other than that general interest common to all citizens of the State of California. Nevertheless, he is an 'aggrieved person' within the meaning of the California Coastal Zone Conservation Act of 1972.

'. . . Ne

'There is substantial evidence in light of the whole record to sustain the vote of the California Coastal Zone Conservation Commission denying a coastal zone development permit to petitioner.'

The trial court concluded Club was estopped to assert loss of jurisdiction by the State Commission, and that Worden had standing to appeal the decision of the Regional Commission.

In this appeal Club contends Worden had no standing to appeal from the granting by the Regional Commission of Club's application for a permit; and that Club could not be estopped to assert the State Commission's lack of jurisdiction to rule upon the appeal more than 60 days after the filing of the appeal.

Under date of May 23, 1973, Worden, signing himself as a member of 'San Diego Coastwatch Committee,' presented an extensive written statement and argument in support of the administrative appeal.

Club submitted to the State Commission, on June 13, 1973, a written argument which raised, among others, the issue of Worden's standing to appeal, stating:

'Regardless of how broad a definition is given to 'aggrieved,' the fact is that nowhere does the appellant state or refer to himself as an aggrieved person, so, therefore, he has not chosen to bring himself within the class of persons who can appeal from the granting of a permit.'

At the meeting of the State Commission on July 5, oral argument was presented by counsel for Club. Worden was present at the meeting, was identified as 'representing the San Diego Coastwatchers,' and made statements concerning some of the physical aspects relating to the proposed project.

At the same meeting, Worden appeared as appellant in another appeal from a decision of the Regional Commission.

The Act became law as the result of an initiative measure in the general election of November 1972.

The Act declares, in section 27001:

'The people of the State of California hereby find and declare that the California coastal zone is a distinct and valuable natural resource belonging to all the people and existing as a delicately balanced ecosystem; that the permanent protection of the remaining natural and scenic resources of the coastal zone is a paramount concern to present and future residents of the state and nation; that in order to promote the public safety, health, and welfare, and to protect public and private property, wildlife, marine fisheries, and other ocean resources, and the natural environment, it is necessary to preserve the ecological balance of the coastal zone and prevent its further deterioration and destruction; that it is the policy of the state to preserve, protect, and, where possible, to restore the resources of the coastal zone for the enjoyment of the current and succeeding generations . . ..'

The State Supreme Court said, in State of California v. Superior Court, 12 Cal.3d 237, 253, 115 Cal.Rptr. 497, 507, 524 P.2d 1281, 1291:

'(I)n order to protect this valuable resource is necessary to study the coastal zone, prepare a comprehensive plan for its orderly, long-range conservation and management, and insure that any development which occurs in the permit area during the study and planning period will be consistent with the objectives of the Act. (Citation.) The Commission is enjoined to submit such a plan to the Legislature by December 1, 1975. (Citation.) Among the objectives of the coastal zone plan are the avoidance of irreversible and irretrievable commitments of coastal zone resources. (Citation.) In order to assure that the purposes of the Act are not impaired during the period in which the plan is in the process of formulation, those who seek to perform any development within the permit area are, with certain exceptions, required to seek a permit from the Commission. (Citation.) However, the Act, including the permit requirement, is automatically repealed by its own terms on the 91st day after the final adjournment of the 1976 Regular Session of the Legislature. (Citation.)

'Thus, the requirement for a permit is an interim measure to assure that developments in the coastal zone are consistent with the objectives of the Act so that priceless coastal resources are not irreversibly committed to uses which would be inconsistent with the plan ultimately developed.'

Preliminary action upon the request for a permit is placed with the Regional Commission, within whose geographical area of jurisdiction the affected property is situated (§§ 27104, 27400). A public hearing must be held upon any such...