People ex rel. San Francisco Bay Conservation etc. Com. v. Smith

• Decision Date: 24 June 1994
• Docket Number: No. A059257,A059257
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE ex rel. SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION, Cross-complainant and Appellant, v. Lawrence W. SMITH III et al., Cross-defendants and Appellants; Douglas Storms, Cross-defendant and Respondent.

Page 488

31 Cal.Rptr.2d 488

26 Cal.App.4th 113

The PEOPLE ex rel. SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION, Cross-complainant and Appellant, v. Lawrence W. SMITH III et al., Cross-defendants and Appellants Douglas Storms, Cross-defendant and Respondent.

No. A059257.

Court of Appeal, First District, Division 2, California.

June 24, 1994.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Jan S. Stevens, Asst. Atty. Gen., Dennis M. Eagan, Supervising Deputy Atty. Gen., Marjorie E. Cox, Deputy Atty. Gen., Oakland, for cross-complainant and appellant.

Larry Moyer, Diane Karasik, Cynthia Cadua, and Lawrence W. Smith III, in pro per and Abigail R. Marshall, Daly City, for cross-defendants and appellants.

Thomas W. Davis, Sausalito, Mary G. Swift, Mill Valley, for cross-defendant and respondent.

SMITH, Associate Justice.

We uphold an injunction under the McAteer-Petris Act (Gov.Code, § 66600 et seq.; the Act) ¹ against the offshore mooring of certain vessels in Richardson Bay as constituting "fill" for which permits from the San Francisco Bay Conservation and Development Commission (BCDC) are required under section 66632, subdivision (a) of the Act. We also reverse the denial of relief against the mooring of one other vessel.

BACKGROUND

This action began as one for writ of mandate and declaratory relief against the Richardson Bay Regional Agency (a local joint powers agency), its constituent local governments of Mill Valley, Sausalito, Tiburon, Belvedere and Marin County, and some local officials. Vessel owners and operators suing as individuals and unincorporated associations calling themselves "The Mariners of Richardson Bay" and "Richardson Bay Community Association" filed suit in March 1988 to bar enforcement of a regional agency ordinance (no. 87-1) which, among other things, prohibited the offshore mooring of residential-use vessels in Richardson Bay and Belvedere Cove for periods longer than 30 days. BCDC intervened as a defendant to protect its interest in enforcement of the ordinance and its Richardson Bay Special Area Plan (the special area plan). The regional agency had been formed to implement the special area plan cooperatively with BCDC, and the ordinance was a part of that effort.

BCDC cross-complained for enforcement of the Act's permit requirements (§ 66632, subd. (a)), seeking an injunction and civil penalties against those plaintiffs who owned, controlled or lived aboard the disputed vessels. The regional agency then cross-complained against some plaintiffs, seeking nuisance abatement and injunctive relief under county code provisions and the ordinance. Ultimately, procedural developments and a memorandum of agreement (MOA) between other parties left only BCDC's The court severed and tried first the case against Douglas Storms, who owned and resided on the Juniper, a 32-foot sailboat which he had moored in a special anchorage area of the bay for about 2 years and which by the time of trial he moored in a location assigned under the MOA. The court denied relief. Finding the boat "capable of active, self-propelled navigation," it rejected BCDC's arguments that the vessel was either floating "fill" or a "structure" (§ 66632, subd. (a)). ³ It also held, based on historical use of the Juniper's mooring sites " 'since Gold Rush days,' " that its mooring had created no "substantial change in use" (ibid.) and, based on current compliance with the MOA, caused no harm which the Act was intended to prevent.

cross-action, which was tried in two parts and finally disposed of by the orders which we review here. ²

BCDC prevailed against all other cross-defendants. The court concluded that their various "floating structures"--docks, barges, mooring buoys, houseboats, etc.--were all "structures" and "fill" under the Act. All were enjoined, with civil penalties imposed against two cross-defendants. The injunctions were conditionally stayed as to all MOA signatories until the MOA's April 1993 expiration date. Trial focused on whether the structures were navigable or "seaworthy," how long they had remained moored and whether they had operable engines.

Cross-defendants Lawrence W. Smith, III, Cynthia Cadua, Larry Moyer, Diane Karasik and Louis Tenwinkle (defendants) appeal from the grant of relief. (Other cross-defendants have not appealed.) BCDC, after losing a motion for new trial as to Storms, cross-appeals from the denial of relief as to him.

APPEAL

Defendants jointly raise several arguments against the court's conclusion that their offshore residences were "fill" under section 66632, subdivision (a). We uphold the conclusion based on the facts and the statutory language and purpose.

Facts

Richardson Bay, a shallow arm of the greater San Francisco Bay, falls within BCDC's jurisdiction under the Act. (§ 66610, subd. (a).) It also falls within concurrent federal jurisdiction and has been designated a special anchorage area. (33 C.F.R. § 110.126a.) Defendants' vessels were all moored in publicly owned tide and submerged lands within the bay, without permits from BCDC. They were anchored or moored offshore, not berthed at marinas or other shore facilities, and lacked shore-connected utilities, including sewerage. By the time of trial in late April 1992, all vessels were in compliance with the MOA except those belonging to Tenwinkle, who had not signed it. Compliance earned the signatories temporary permits from the regional agency (but not BCDC; fn. 2, ante ) and required, among other things, holding tanks for sewage and a "honey barge" sewage transfer service.

The Glass Barge is a steel-reinforced cement-hulled vessel owned by Larry Moyer and Diane Karasik. It had been the couple's residence since July 1987, was moored within the BCDC's jurisdiction through the time of trial and had no motor. Except for being onshore in fall 1990 in Galilee Harbor, where it was towed for repairs, the vessel was moored at or near its location near Waldo Point Harbor since at least early 1989. The court adjudged it "not seaworthy" and unable to be "safely navigated and maneuvered even in the protected waters of Richardson Bay."

The Phoenix (or TeePee)--"a cement barge with a 'Teepee' shaped structure constructed on top of it"--is owned by Lawrence Smith and was attached to floating docks also owned by him. It was Smith's principal residence and had been moored at or near its current location since at least July 1988. Smith testified that he had used three motors to move the vessel, but the vessel had no permanently installed motor, and the court adjudged it "not seaworthy," even in the protected bay waters.

Cynthia Cadua owned the Pitcairn, a 50-foot wooden motor launch modified "to increase the size of the cabin area available for use as living quarters." She had lived there from the time she purchased it in October 1986 until spring of 1991 when, as the result of an injury, she moved into her parents' home in Hayward. She lived in Point Richmond by the time of trial (April 1992) but intended to move back onto the vessel by summer. The Pitcairn had been moored at or near the same spot for nearly two years and, before then, for several months to a year at a time at other offshore locations in Richardson Bay. The court found that the vessel, whose anchor would take half a day to raise, "could conceivably be seaworthy for use in protected waters" but that its engine had no functioning exhaust system (the exhaust port had been sealed off during hull work) and had not had one "for some time."

Louis Tenwinkle owned several structures. One, a barge with a crane on it, he acquired in 1991, but it had been sunken for some time by the time of trial, and had been posted for removal by local authorities at an estimated public cost of $60,000. The water was evidently only three to four feet deep, but the barge could not be raised and would have to be removed piece by piece. Moored in the same spot was the Upper Line, on which Tenwinkle had lived since late 1990; he lived there with his friend Lisa by the time of trial. He built the residence on the burned-out hull of a tugboat called the Kent in 1990, during this litigation. (His offshore residence before then, the Miller Avenue, was later found abandoned at a debris dock maintained by the Army Corps of Engineers (Army Corps), which later had it destroyed at a public expense of about $15,000.) A third vessel moored in the same spot was the Ballena, a steel work boat having a house on its aft end, an A-frame and winch, and two diesel engines. Tenwinkle at first used the boat for work but by the time of trial had not used it for a year or more, and neither of its engines worked. All three of the above structures sat moored together for at least a year before trial. ⁴ A fourth vessel, the Sioux City, was formerly a fishing boat. Tenwinkle built living quarters on it after it sank and was abandoned near the debris dock. It had no working engine, and he rented it out as a residence to a man to whom he was in the process of selling it at the time of trial. Section 66632

"To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary meaning. [Citations.] When ' "statutory language is ... clear and unambiguous there is no need for construction, and courts should not indulge in it." ' [Citations.] The plain meaning of words in a statute may be disregarded only when that meaning is ' "repugnant to the general purview of the act," or for some other compelling reason....' [Citations.]" (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601, 7 Cal.Rptr.2d 238, 828 P.2d 140.)

The Act requires permits before persons or entities may "place fill" within areas of the BCDC's jurisdiction, and it defines fill as (1) "earth or any other substance or material, including pilings or structures placed on pilings," and (2) "structures floating at some or all times and moored for extended periods,...