North Pacifica LLC v. California Coastal Com.

• Decision Date: 19 September 2008
• Docket Number: No. B199446.,B199446.
• Citation: 83 Cal. Rptr. 3d 636,166 Cal.App.4th 1416
• Parties: NORTH PACIFICA LLC, Plaintiff and Appellant, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

166 Cal.App.4th 1416

83 Cal. Rptr. 3d 636

NORTH PACIFICA LLC, Plaintiff and Appellant, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent.

No. B199446.

Court of Appeals of California, Second District, Division Five.

September 19, 2008.

Warshaw & Pope and Jaquelynn Pope for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, J. Matthew Rodriguez, Assistant Attorney General, and Joel S. Jacobs, Deputy Attorney General, for Defendant and Respondent.

OPINION

MOSK, J.

INTRODUCTION

In 2002, the City of Pacifica (City) issued a development permit to plaintiff and appellant North Pacifica LLC (North Pacifica) authorizing North Pacifica to construct a residential development on coastal property within the City. A City resident filed an appeal with the California Coastal Commission (Commission) challenging the validity of the permit. Ensuing litigation delayed any action on the appeal until December 2005, at which time the Commission determined it had jurisdiction over the appeal and sent out notice of a hearing on the appeal. North Pacifica objected to the notice as untimely, but the Commission proceeded with the hearing—over North Pacifica's protest and without its participation—finding that the appeal raised a substantial issue warranting a subsequent de novo hearing on the merits.

At North Pacifica's request, the Commission postponed the de novo hearing to allow North Pacifica to prepare for the hearing. North Pacifica, however, subsequently objected to the Commission holding the de novo hearing on the ground that the Commission had lost any jurisdiction it may have had over the appeal because of the untimely notice of the first hearing on the appeal. North Pacifica filed a petition for writ of mandate and a complaint for declaratory relief in the trial court seeking to prohibit the Commission from holding the de novo hearing. But before the trial court could rule on the merits of North Pacifica's civil action, the Commission held the de novo hearing on the appeal—again without North Pacifica's participation—and denied the permit application. Thereafter, the trial court held a hearing on the merits of North Pacifica's petition and complaint in the civil action and entered a judgment denying the petition and other claims for relief.

(1) North Pacifica appeals from that judgment on several grounds, including the contention that the Commission did not substantially comply with statutory and regulatory notice requirements in connection with the first hearing on the appeal, thereby invalidating all of the subsequent actions taken by the Commission on the appeal and divesting the Commission of any jurisdiction over the appeal. We hold that the Commission substantially complied with the statutory and regulatory notice requirements upon which North Pacifica relies and that, in any event, North Pacifica was not prejudiced by the Commission's technical noncompliance with those requirements. We therefore affirm the judgment.

FACTUAL BACKGROUND

A. Appeal to the Commission

North Pacifica¹ applied for and obtained a coastal development permit (CDP) from the City in the summer of 2002 authorizing North Pacifica to develop a 43-unit housing project on a site in the City known as the "Bowl" property. John Curtis, a resident of the City, appealed the City's approval of the project to the Commission (Curtis appeal). Because the City contended that its decision to issue the CDP for the Bowl project was not appealable, the Commission scheduled a hearing in December 2002 to determine initially whether the City's decision was within the Commission's appellate jurisdiction. The Commission also suspended the CDP pending the outcome of the appealability determination and any subsequent appeal.

North Pacifica responded by filing actions in state and federal court challenging the Commission's authority to hold any hearings on its CDP. Those actions and related appellate proceedings, which were resolved against North Pacifica and in favor of the Commission, delayed the appealability hearing before the Commission until December 16, 2005. On that date, the Commission determined that the City's decision to approve the CDP was within its appellate jurisdiction. The Commission also determined that the Curtis appeal would be deemed filed as of December 19, 2005, for purposes of calculating the 49-day period within which to set a hearing on the appeal pursuant to Public Resources Code section 30621.² Based on that December 19, 2005, filing date, the Commission calculated that it had through and including February 6, 2006, to hold a hearing on the Curtis appeal.

On December 20, 2005, the Commission sent a notice to the City entitled "Commission Notification of Appeal." The notice was addressed to the City planner and identified North Pacifica's CDP and the Bowl project. It also stated that the "Commission hearing date has been tentatively set for January 11-13, 2006 in San Pedro." The notice further required the City to provide the Commission with "copies of all relevant documents and materials used in the [City's] consideration of [North Pacifica's CDP] . . . ." The notice concluded by advising that a "Commission Staff Report and notice of the hearing will be forwarded to you prior to the hearing." The notice was mailed to Keith Fromm, one of the two principals of North Pacifica, at 6114 La Salle Avenue, Oakland, California. Robert Kalmbach, North Pacifica's other principal, explained that the La Salle address was a post office box that Kalmbach maintained on behalf of North Pacifica.

According to the Commission, "staff mailed the [December 20, 2005,] notification to the address on file for North Pacifica, which is the same address to which various previous documents, including both previous meeting notices, had been mailed." Fromm testified, however, that his office is in Westwood, California, that he had recently requested that notices from the Commission be mailed to that address, and that he did not receive the December 20 notice prior to January 5, 2006. Jaquelynn Pope, North Pacifica's outside counsel, also denied receiving a copy of the December 20, 2005, notice prior to January 5, 2006. And Kalmbach testified that although he eventually saw a copy of the December 20 notice when he checked the Oakland post office box on January 5, he did not read it carefully.

On December 28, 2005, the Commission posted the agenda for its January meeting on its Web site.³ The posted agenda explained that "new appeals" were processed as follows: "When staff recommends [the finding of a] `substantial issue,' a public hearing on the question will only be held if 3 or more Commissioners ask for it. If three or more Commissioners do not request a hearing on [the] `substantial issue' [question,] the matter automatically proceeds to de novo public hearing either at this or a later Commission meeting."⁴

On Friday, December 30, 2005, the Commission posted on its Web site the report on the Curtis appeal prepared by the Commission's staff (staff), which report listed the hearing date for the appeal—January 11, 2006—on the first page. The report contained extensive detail concerning the staff's analysis of the issues raised by the Curtis appeal.

On the next business day, January 3, 2006, the Commission mailed out a formal notice of the hearing on the Curtis appeal entitled "Important Public Hearing Notice New Appeal."⁵ According to North Pacifica, neither its principals nor its outside counsel received this notice until January 5, 2006.

On January 10, 2006, both Fromm—who is an attorney and acts as North Pacifica's corporate counsel—and Pope filed formal, written objections to the hearing on the Curtis appeal. Both objections asserted that the January 3, 2006, notice of hearing on the Curtis appeal violated California Code of Regulations, title 14, section 13063⁶ in that it was mailed less than 10 days prior to the hearing and therefore provided North Pacifica with insufficient time to prepare for the hearing. Pope attached to her objection the declarations of two environmental consultants, each of whom stated that he needed more time to prepare for the hearing. Both objections asserted that the Commission lacked jurisdiction to hear the appeal due to the defective notice and demanded that the hearing not take place. Neither objection requested a continuance or proposed alternative dates for the hearing.

The Commission responded the same day, stating that "Commission staff does not understand [North Pacifica's objections to be] requesting postponement of the hearing until a later date. If North Pacifica does wish to postpone the hearing, please notify [the staff] immediately." North Pacifica did not respond to the Commission's letter.

On January 11, 2006, the Commission convened a public meeting at which it addressed the Curtis appeal. In response to North Pacifica's objections, the staff reported to the Commission that "we have asked [North Pacifica], yesterday, whether they would like to request postponement of the hearing, to provide them more time to respond, but we have not heard back from them on that request. In order to postpone, they would have to waive the 49-day hearing rule for an appeal, so lacking that postponement request from [North Pacifica], we are here today. [¶] We have also examined the claim of defective notice that [North Pacifica makes], and while it is true that the paper notice of this hearing was not timely mailed to [North Pacifica], we believe [North Pacifica], nonetheless, had constructive notice of this hearing by other means, including [the] notification of the appeal [that] was mailed to North Pacifica on December [20,] 2005. That notice indicated that the appeal was tentatively set for this date, January 11 through the 13." The staff therefore concluded that "based on our belief that [North Pacifica] had adequate notice of this hearing, as well as time to address the question of whether there...