Rea Enterprises v. California Coastal Zone Conservation Com.

• Court: California Court of Appeals
• Writing for the Court: STEPHENS; HASTINGS; ASHBY
• Citation: Rea Enterprises v. California Coastal Zone Conservation Com., 125 Cal.Rptr. 201, 52 Cal.App.3d 596 (Cal. App. 1975)
• Decision Date: 30 October 1975
• Parties: REA ENTERPRISES, a partnership, Petitioner and Respondent, v. The CALIFORNIA COASTAL ZONE COMMISSION, etc., et al., Respondents and Appellants. Civ. 45813.

Page 201

125 Cal.Rptr. 201

52 Cal.App.3d 596

REA ENTERPRISES, a partnership, Petitioner and Respondent, v. The CALIFORNIA COASTAL ZONE COMMISSION, etc., et al., Respondents and Appellants.

Civ. 45813.

Court of Appeal, Second District, Division 5, California.

Oct. 30, 1975.

As Modified Nov. 13, 1975.

Hearing Denied Dec. 24, 1975.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., and Alan Robert Block, Deputy Atty. Gen., for respondents and appellants.

Caditz & Grant, A Professional Corporation, Allan M. Caditz, Mark A. Resnik, Beverly Hills, and Joseph A. Ball, Ball, Hunt, Hart, Brown & Baerwitz, Long Beach, for petitioner and respondent.

STEPHENS, Acting Presiding Justice.

This is an appeal from an order granting the issuance of a peremptory writ of mandamus directing appellants, the California Coastal Zone Commission, etc., et al. ('State Commission'), to set aside its ruling denying a development permit to respondent, REA Enterprises, etc. ('REA') and directing the South Coast Regional Commission ('Regional Commission') to deliver the permit it previously had issued to REA.

The sole issue presented in this appeal involves interpretation of the California Coastal Zone Conservation Act of 1972 ('Coastal Act') (Pub.Res.Code, Div. 18, §§ 27000--27650): Upon an appeal from a decision rendered by the Regional Commission approving a coastal development permit, does a tie vote by the State Commission constitute an affirmation of the Regional Commission's decision, or to say it in a different way, does a tie vote by the State Commission result in the denial of the permit?

Procedural Background

REA initiated this action pursuant to Public Resources Code section 27424 ¹ seeking judicial review of the State Commission's decision denying REA a coastal zone development permit pursuant to section 27400 to construct a 153 residential condominium project adjacent to the beach in the Playa Del Rey area of the City of Los Angeles. ² On May 25, 1973, REA applied for a permit with the Regional Commission. Following public hearings, ³ the Regional Commission approved the application on October 15, 1973 and issued the permit on October 30, 1973. This decision was appealed to the State Commission on October 29, 1973, by the timely filing of notices of appeal pursuant to section 27420, subdivisions (a) and (c) by Janna Lingenfelter and Ariel C. Hilton. ⁴ On November 28, 1973, the State Commission conducted a public hearing in connection with the appeal pursuant to section 27423. ⁵ On January 23, 1974, ⁶ the State Commission voted on the appeal; the vote resulted in a tie, with six members in favor of granting the permit and six opposed. As a consequence of the tie vote, the State Commission refused to approve issuance of the permit.

REA then instituted this action in mandamus pursuant to section 27424 and Code of Civil Procedure section 1094.5. (See State of California v. Superior Court, 12 Cal.3d 237, 248, 115 Cal.Rptr. 497, 524 P.2d 1281.) This appeal followed the trial court's ruling that the Coastal Act gives the State Commission only limited jurisdiction of an appellate nature. Applying the principle that a lower tribunal's ruling stands upon a tie vote by the appellate body, the trial court held that the tie vote by the State Commission amounted to an affirmation of the Regional Commission's approval and issuance of the development permit. ⁷ On October 23, 1974, the court granted the Peremptory Writ of Mandamus, directing the State and Regional Commissions to deliver the permit and directing the State Commission to set aside its decision of January 23, 1974. We do not agree.

Discussion

The California Coastal Zone Conservation Act of 1972 ('Coastal Act') was adopted by the electorate of the State of California as an initiative measure, Proposition 20, at the general election on November 7, 1972. The Coastal Act established the State Commission and six Regional Commissions, each comprised of twelve members (§§ 27001, subd. (d), 27200, and 27201, subd. (e)) ⁸ for the purpose of preparing for submission to the California Legislature prior to December 1, 1975 a plan for the conservation of the area described in the Act as the 'Coastal Zone' (defined in § 27100). ⁹ The Coastal Act further provides a system for controlling interim coastal development by requiring any person (§ 27105) wishing to construct any structure within 1,000 yards of the mean high tide line (§ 27104) on or after February 1, 1973 must first obtain a permit authorizing development from the appropriate Regional Commission (§ 27400). ¹⁰ The purpose of the interim permit requirement is to assure coastal development (defined in § 27103) consistent with the objectives of the Coastal Act during the interim period. (See §§ 27001, 27302, 27402, and 27403.) ¹¹

The total scheme of the Coastal Act becomes clear when it is recognized that there is a chain of responsibility therein created. First, it is the responsibility of the Regional Commission to adjudicate the propriety of granting or denying a permit. This presupposes recognition of the regional effect upon the ecosystem (§ 27402). Second, when disagreement arises and a timely appeal is filed, the State Commission takes a new, unlimited look at the same request for a permit by a de novo public hearing. The State Commission is required not only to review the regional effect, but has the responsibility of determining the statewide effect of the proposed development (§ 27001). We find support for this conclusion in the expression of the Supreme Court in State of California v. Superior Court, 12 Cal.3d 237, 115 Cal.Rptr. 497, 524 P.2d 1281. There, the court stated (at p. 245, 115 Cal.Rptr. at 502, 524 P.2d 1281, at 1286): 'It is obvious from the terms of the Act that the (State) Commission is authorized to determine whether a permit should be issued. (Pub. Resources Code, § 27400 et seq.).' And (at p. 247, 115 Cal.Rptr. at 504, 524 P.2d at 1288): 'Even the most cursory examination of the Act reveals that determination of whether an applicant qualifies for a permit is entrusted to the (State) Commission's discretion. Thus, a permit may not issue unless the (State) Commission finds, for example, that the development will not have any substantial adverse environmental or ecological effect (Pub.Resources Code, § 27402, sub. (a)) or irreversibly commit coastal zone resources, and that the proposed development will enhance the environment of the coastal zone (§§ 27402, subd. (b), 27302, subds. (a), (d)). The application of these factors requires the (State) Commission to undertake a delicate balancing of the effect of each proposed development upon the environment of the coast as a predicate to the issuance of a permit.' (Emphasis added.) As the court in Klitgaard & Jones, Inc. v. San Diego Coast Regional Com., 48 Cal.App.3d 99, 108, 121 Cal.Rptr. 650, 655, stated: 'The Regional Commission has original jurisdiction to pass upon applications for permits. But the appeal provided by the Act, if the State Commission decides it presents a substantial issue, involves a Redetermination by the State Commission of the merits of the application. Its decision might very well take into account statewide policies, while the purview of the Regional Commission . . . might be narrower.' (Emphasis added.)

Certainly, to carry out this responsibility, the State Commission must have unlimited adjudicatory powers (subject only to constitutional and statutory restrictions).

Specifically, section 27423 subdivision (c) provides that appeals 'shall be scheduled for a De novo public hearing and Shall be decided in the same manner and by the same vote as provided for decisions by the regional commissions.' (Emphasis added.) The manner and vote that the State Commission is requirted to follow in deciding the appeal is set forth in section 27400 which provides that 'no permit shall be issued without the Affirmative vote of a majority of the total authorized membership of the regional commission, or Of the (State) commission on appeal.' (Emphasis added.) Furthermore, section 27224 provides that a 'majority Affirmative vote of the total authorized membership Shall be necessary to approve any action required or permitted by this division unless otherwise provided.' (Emphasis added.) This action is included in article 2 of the Coastal Act, which deals with organization of the Regional and State Commissions. ¹²

It is a well established rule of statutory construction that the word 'shall' connotes mandatory action and 'may' connotes discretionary action. (County of Sacramento v. Superior Court, 20 Cal.App.3d 469, 472, 97 Cal.Rptr. 771; see Gov.Code, § 14; Bus. & Prof.Code, § 19.) Applying this rule of statutory construction to section 27423, subdivision (c), we conclude that not only is the State Commission required to conduct a de novo public hearing, but it is also required to conduct the hearing in the same manner and by the same vote as the Regional Commission. ¹³ Since there are twelve authorized members of the State Commission, this would require at least seven notes for the issuance of a permit. Action was taken by the State Commission. REA did not receive the statutorily required number of votes. By failure to obtain a majority vote, the action taken by the State Commission effectuated a denial of the issuance of the development permit. ¹⁴ It would be just as fallacious to say that a tie vote by the State Commission did not result in a denial of a permit as to say that such a tie vote at the regional level would not result in a denial of the permit. Respondent does not suggest that without a majority affirmative vote to grant the permit, the permit would be denied. The denial is action by the respective commission.

REA, however, contends that the jurisdiction of the State Commission is strictly of an appellate nature. It argues that the 'de novo public hearing' language of section 27423 subdivision (c) refers...