Nollan v. California Coastal Com.

• Decision Date: 24 January 1986
• Docket Number: B-004663
• Citation: 223 Cal.Rptr. 28,177 Cal.App.3d 719
• Court: California Court of Appeals Court of Appeals
• Parties: James Patrick NOLLAN and Marilyn Harvey Nollan, Petitioners and Respondents, v. CALIFORNIA COASTAL COMMISSION, Respondent and Appellant. Civ.

Page 28

223 Cal.Rptr. 28

177 Cal.App.3d 719

James Patrick NOLLAN and Marilyn Harvey Nollan, Petitioners and Respondents, v. CALIFORNIA COASTAL COMMISSION, Respondent and Appellant.

Civ. B-004663.

Court of Appeal, Second District, Division 6, California.

Jan. 24, 1986.

Review Denied April 30, 1986.

John Van de Kamp, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., Jamee Jordan Patterson, Deputy Atty. Gen., for respondent and appellant.

Ronald A. Zumbrun, Robert K. Best, Timothy A. Bittle, Sacramento, for petitioners and respondents.

ABBE, Associate Justice.

Appeal by California Coastal Commission (Commission) from judgment granting a peremptory writ of mandate to James and Marilyn Nollan (the Nollans). In its judgment the trial court held invalid the Commission's conditional approval of a coastal owner's development project. The condition imposed required the owners to provide lateral access to the public to pass and repass across the property between the mean high tide line to the toe of a revetment located on the property. The judgment ordered the Commission to issue the permit without the condition. We reverse the trial court and affirm the decision of the Commission.

The Nollans own a lot on the beach in the Faria Beach Tract in Ventura County. On March 1, 1982, they applied for a coastal development permit to demolish a 521 square foot, one bedroom, one story, substandard beach house located on their lot. The Nollans proposed to replace it with a two-story, three bedroom, 1674 square foot residence with attached two car garage. Their stated intention is to live in the new residence permanently in contrast to the limited occasional vacation use by them and renters of the smaller structure.

The Commission placed the Nollans' application on what is known as the administrative permit calendar and approved it on April 7, 1982, with a condition requiring lateral public access. The Nollans objected to that condition and requested a full public hearing. This request was denied.

The Nollans then filed a petition for a writ of mandate. On January 18, 1983, after a hearing, the court ordered that a "writ of mandate shall issue from this court, remanding the proceedings to respondent and commanding respondent to set aside its decision of April 7, 1982 ... and set the matter for a full evidentiary hearing."

Upon remand a full public hearing was held before the Commission. At the conclusion of the hearings, the Commission approved the Nollans' application permit again with the condition requiring lateral public access.

The Nollans filed a supplemental petition for writ of mandate. The trial court issued a peremptory writ commanding the Commission to issue the permit without the condition requiring public access. The Commission appealed.

Standard of Review

When the decision of an administrative agency neither involves nor substantially affects a fundamental vested right, the standard of review in both the trial and the appellate court is whether the findings are supported by substantial evidence. (Georgia-Pacific Corp. v. California Coastal Com. (1982) 132 Cal.App.3d 678, 697, 183 Cal.Rptr. 395.) The Nollans did not have a preexisting right to unregulated new construction. Since they were given the right to construct, the only question that remains is the reasonableness of the condition attached. We therefore review the administrative record to determine whether the Commission's decision is supported by substantial evidence in light of the whole record. (City of San Diego v. California Coastal Com. (1982) 119 Cal.App.3d 228, 232, 174 Cal.Rptr. 5.)

Evidence

There is substantial evidence to support the decision of the Commission. The evidence considered by the Commission consisted of the following: Reports on 12 permits for demolition and reconstruction of single family residences in the Faria Beach tract and four other permits, the state-wide interpretative guidelines on access, a Ventura beach study (which includes Faria beach), testimony from citizens, a report on an investigation of the existence of public rights acquired through implied dedication at Faria, including declarations by surfers who frequent Faria beach, excerpts from surfing publications about the area, a commission study on coastal access in San Diego, a study of cumulative impacts on shore-zoned development at Lake Tahoe, a hand book on coastal recreation for planners, three articles on coastal access problems encountered in other states, and a beach user study component of the Santa Monica Land Use Plan as well as slides, plans and documents submitted by the Nollans and Mr. Nollan's testimony.

All this mass of evidence was and could be considered. The Commission may consider opinion evidence of experts, oral presentations at the public hearing, photographic evidence and writ materials prepared by its staff. (City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 183 Cal.Rptr. 909.)

The trial court found that the evidence did not support a finding that the Nollans' project would create a "direct or cumulative burden on public access to the sea." Since a direct burden on public access need not be demonstrated, we hold the trial court ruling to be in error.

Discussion

In Grupe v. California Coastal Com. (1985) 166 Cal.App.3d 148, 165, 212 Cal.Rptr. 578, the court construed the leading California case on the constitutionality of exactions, Associated Home Builders, etc., Inc. v. City of Walnut Creek (1971) 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606, to hold that only an indirect relationship between an exaction and a need to which the project contributes need exist. We agree with the Grupe reasoning.

In Grupe the landowner owned one of six remaining undeveloped beach front lots in a group of twenty-nine adjacent lots in Santa Cruz County. The 29 lots were located between two beaches open to public use. Grupe applied for a permit to build a large single family residence to be located behind a cement wall on his lot. The Commission approved the permit subject to a requirement that Grupe offer to dedicate a public access easement between mean high tide and the cement wall.

The court in Grupe held that the access condition was related to a need for public access to which Grupe's project contributed, even though standing alone it had not created the need for access. The court reasoned the project was one more brick in the wall separating the people of California from ...