McAllister v. County of Monterey

• Citation: 54 Cal.Rptr.3d 116,147 Cal.App.4th 253
• Decision Date: 31 January 2007
• Docket Number: No. H028813.,H028813.
• Court: California Court of Appeals
• Parties: Hugh McALLISTER, Plaintiff and Appellant, v. COUNTY OF MONTEREY et al., Defendants and Respondents; Sheldon J. Laube et al., Real Parties in Interest and Respondents.

54 Cal.Rptr.3d 116

147 Cal.App.4th 253

Hugh McALLISTER, Plaintiff and Appellant, v. COUNTY OF MONTEREY et al., Defendants and Respondents Sheldon J. Laube et al., Real Parties in Interest and Respondents.

No. H028813.

Court of Appeal, Sixth District.

January 31, 2007.

Fenton & Keller, John S. Bridges, Mark A. Cameron, David C. Sweigert, Monterey, Jennifer M. Pavlet, for Appellant.

Charles J. McKee, County Counsel, Frank G. Tiesen, Deputy County Counsel, for Respondent.

Lombardo & Gilles, Sheri L. Damon, Salinas, for Real Parties in Interest.

McADAMS, J.

This appeal represents the latest round in the plaintiffs long battle against the approval of a coastal development permit on neighboring property. In administrative proceedings conducted by Monterey County officials and later by the California Coastal Commission, the real parties in interest won approval to construct a large single-family dwelling on the Big Sur Coast. In judicial proceedings below, the real parties in interest and the defendants successfully demurred to the plaintiff's complaint, which was then dismissed. On appeal, the plaintiff contends that the dismissal was improper procedurally, because the demurrer was unauthorized and untimely. He also argues that the dismissal was improper substantively because he has a valid cause of action against the County based on jurisdictional grounds and based on the County's violation of the California Environmental Quality Act (CEQA).

As we explain, we find no merit in the plaintiffs contentions. Procedurally, the trial court acted within its discretion in entertaining a second demurrer to the plaintiffs complaint after the conclusion of Coastal Commission proceedings. Substantively, there is no merit in the plaintiffs jurisdictional claims that Monterey County's action was a legal nullity, since those allegations both conflict with judicially noticed documents and represent bare legal conclusions. Nor can the plaintiff state a valid cause of action against the County under CEQA, because its determinations were superseded by the Coastal Commission's environmental review. Treating the trial court's order as a judgment of dismissal, we therefore affirm.

BACKGROUND¹

The Parties

Appellant is Dr. Hugh McAllister (McAllister). McAllister chairs the World Wildlife Fund's' Marine Leadership Committee. He also owns property along the Big Sur Coast within view of the challenged project.

Respondents are the County of Monterey and the Monterey County Board of Supervisors (collectively, the County). The County passed the resolution challenged here, which approved the coastal development proposed by the real parties in interest. The real parties in interest are Sheldon J. Laube and Dr. Nancy J. Engel (Laube & Engel or real parties).

The Proposed Development

In 2001, Laube & Engel sought permission to develop their property, which is located on Kasler Point, north of Rocky Point, at 36240 Highway 1, Big Sur. The property then consisted of two contiguous lots, each approximately two acres in size. Real parties' proposal was for a large single-family home with a subterranean garage complex, measuring just over 10,000 square feet in all.

Many years before, the prior owner of the property, Donald Sorenson, had taken steps to build a house there. In 1977, the California Coastal Commission granted Sorenson a development permit for a smaller home on the site, subject to certain conditions. One condition was that his two lots would be consolidated into a single parcel prior to the commencement of any grading or construction. Despite this condition, Sorenson began grading and construction without merging the two lots. After putting in a driveway, foundation, water connections, a septic system, and certain other improvements, Sorenson abandoned the project.

The County's Coastal Ordinances

Monterey County has a Local Coastal Plan (LCP), which is codified in Chapter 20.90 of the Monterey County Code (Chapter 20.90). The LCP includes the Big Sur Land Use Plan (LUP); it also includes a Coastal Implementation Plan (CIP).

One pertinent provision of Chapter 20.90—a linchpin of McAllister's opposition to the project—provides that any permit, "if issued in conflict with the provisions of this title, shall be null and void." (Monterey County Code, § 20.90.010.) Another relevant provision of Chapter 20.90 prohibits the approval of permits "where there is an outstanding violation of this Title or the remaining portions of the Monterey County Coastal Implementation Plan involving the property upon which there is a pending application for such permit, ... unless such permit ... is the, or part of the, administrative remedy for the violation." (Monterey County Code, § 20.90.120.) That provision continues: "After recordation of a Notice of Violation by the enforcing officer, all departments, commission, and public employees shall refuse to issue permits or licenses or entitlements involving the property except those necessary to abate the violation...." (Ibid.) Chapter 20.90 authorizes the County's director of planning and building inspection to establish violations of the title. (Monterey County Code, § 20.90.20.) It also provides an array of alternatives for correcting violations. (See id., §§ 20.90.060, 20.90.070, 20.90.080, 20.90.090.) Among them are retroactive permits and restoration orders. (See id., §§ 20.90.130, 20.90.140.)

PROCEDURAL HISTORY

Administrative Proceedings at the County

In early March 2001, Laube & Engel applied to the County for a development permit to construct a residence on their coastal property.

Later that same month, real parties' application was reviewed for the first time by the Big Sur Land Use Advisory Committee (LUAC). LUAC approved the project, on condition that no outside flood lighting would be used and that the invasive ice plant on the property would be eradicated. Thereafter, based on McAllister's objections and pursuant to his requests, real parties relocated the proposed home. In March 2003, LUAC reviewed the proposal as modified. Despite McAllister's continued opposition, the committee voted unanimously to approve the modified project as proposed, with an additional requirement that stone be used as the building material for the walls in order to minimize view impacts.

In October 2003, after a number of continuances, the project proceeded to the County's planning commission for a hearing. Over McAllister's opposition, the planning commission voted unanimously to approve both the proposed home and the parcel merger and to certify a mitigated negative declaration under the California Environmental Quality Act.

In November 2003, McAllister filed an administrative appeal of the planning commission's decision, seeking review from the County's board of supervisors. In his appeal, McAllister asserted that the proposed project violated the 1977 coastal development permit obtained by real parties' predecessor, that it conflicted with numerous policies in the local coastal program, that the planning commission's approval was based on misleading information, and that the project violated CEQA.

In January 2004, the board of supervisors conducted a public hearing on McAllister's appeal. Speakers at the hearing included real parties' counsel; McAllister's counsel plus one witness; and the assigned land use planner for the County. The County's staff recommended denial of McAllister's appeal.

At the conclusion of the hearing, the board of supervisors unanimously adopted Resolution No. 04-028, thereby denying McAllister's appeal. The resolution contains a number of findings, including this: "The subject property is in compliance with all rules and regulations pertaining to the use of the property; no violations exist on the property...." In addition to denying McAllister's appeal, Resolution No. 04-028 explicitly affirmed the mitigated negative declaration prepared for the project and specifically upheld the planning commission's earlier decision to approve the application by Laube & Engel for a combined coastal development permit.

The following month, McAllister appealed the County's decision to the Coastal Commission, "as a precautionary measure to protect [his] rights."

Proceedings in the Trial Court

On February 18, 2004, simultaneously with his appeal to the Coastal Commission, McAllister filed this action. In his combined petition for writ of mandate and complaint for declaratory and injunctive relief, McAllister asserted three causes of action. The first cause of action alleged an administrative mandamus claim against the County. (Code Civ. Proc, § 1094.5.) That cause of action incorporated these assertions: that the County's approval was null and void under its own code provisions and thus was made without jurisdiction; that the County failed to give McAllister a fair hearing; and that the County abused its discretion by not requiring an environmental impact report. McAllister's second cause of action, also against the County, sought a judicial declaration that the County's approval of the project was null and void. His third cause of action sought injunctive relief against the Coastal Commission, to prevent it from assuming jurisdiction over the project. In addition to the relief requested in the third cause of action of his complaint, McAllister also sought a temporary restraining order and preliminary injunction against the Coastal Commission, which the court denied.

In March 2004, Laube & Engel demurred to the complaint. As to the first cause of action, real parties asserted, McAllister failed to exhaust his administrative remedies. Laube & Engel challenged the other two causes of action on the ground that the relief sought was improper. In the event that it declined to sustain the demurrer and dismiss the action, real parties argued, the court should stay the litigation pending the outcome of the Coastal Commission appeal. The County joined real parties' demurrer. The Coastal...