San Diego Coast Regional Com. v. See the Sea, Limited

• Decision Date: 22 August 1973
• Citation: 109 Cal.Rptr. 377,9 Cal.3d 888,513 P.2d 129
• Court: California Supreme Court
• Parties: , 513 P.2d 129, 5 ERC 1761, 3 Envtl. L. Rep. 20,760 SAN DIEGO COAST REGIONAL COMMISSION FOR SAN DIEGO COUNTY, Plaintiff and Appellant, v. SEE THE SEA, LIMITED, Defendant and Respondent. L.A. 30142.

Page 377

109 Cal.Rptr. 377

9 Cal.3d 888, 513 P.2d 129, 5 ERC 1761, 3 Envtl. L. Rep. 20,760

SAN DIEGO COAST REGIONAL COMMISSION FOR SAN DIEGO COUNTY, Plaintiff and Appellant, v. SEE THE SEA, LIMITED, Defendant and Respondent.

L.A. 30142.

Supreme Court of California,

In Bank.

Aug. 22, 1973.

Rehearing Denied Oct. 10, 1973.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., and Dennis A. Antenore, Deputy Atty. Gen., for plaintiff and appellant.

Hillyer & Irwin, Oscar F. Irwin and Brown B. Smith, San Diego, for defendant and respondent.

Ball, Hunt, Hart, Brown & Baerwitz, George A. Hart, Jr., John R. McDonough, Long Beach, Acret & Perrochet, James M. Baratta, James Acret, Pollock, Williams & Berwanger, John P. Pollock, Charles V. Berwanger, Cox, Castle, Nicholson & Weekes, George M. Cox, Phillip R. Nicholson and Richard D. Norton, Los Angeles, as amici curiae on behalf of defendant and respondent.

CLARK, Justice.

Appeal from order denying preliminary injunction. (Code Civ.Proc. § 904.1, subd. (f).)

Defendant owns land within 1,000 yards of the California coastline. Having planned to develop the property since 1968, it applied to the City of San Diego for a building permit in July, 1972, for construction of a condominium project.

The permit was granted on 6 December 1972. In the first week of January, 1973, defendant demolished a motel on the site and, prior to 1 February, spent $79,000 in construction, also incurring finance charges.

Construction progressed to 2 March 1973 when plaintiff, a regional commission operating pursuant to the California Coastal Zone Conservation Act of 1972 (Pub. Resources Code, § 27000 et seq. ¹ ; hereinafter 'act'), commenced this action to impose civil fines ² and to halt further development on the ground defendant lacked a coastal permit. A temporary restraining order issued by the trial court was subsequently dissolved and a preliminary injunction denied. The court found that prior to 1 February 1973 defendant had obtained a vested right to complete the development because it had relied in good faith on the city's building permit, and that a coastal permit therefore was not required. Plaintiff appeals.

We have concluded the act requires a coastal permit for construction commenced after 1 February 1973, but does not require one for builders performing substantial lawful construction of their projects prior thereto.

The act, adopted as an initiative measure (Proposition 20) at the 7 November 1972 general election, has the stated purposes of permanently protecting and restoring the natural and scenic resources of the coastal zone. (§ 27001.)

The act provides that a permit from a regional commission shall be required for developments on land within 1,000 yards of the mean high tide line (called the 'permit area') (§§ 27001(c), 27104, 27400) to assure coastal development consistent with certain environmental objectives (§§ 27402, 27403, 27001, 27302).

Section 27400 provides: 'on or After February 1, 1973, any person wishing to perform any development within the permit area shall obtain a permit authorizing such development from the regional commission and, if required by law, from any city, county, state, regional or local agency.' (Emphasis added.)

Section 27404 provided at the time the act was passed: 'If, prior to the Effective date of this division, any city or county has issued a building permit, no person who has obtained a vested right thereunder shall be required to secure a permit from the regional commission; . . . Any such person shall be deemed to have such vested rights if, prior to April 1, 1972, he has in good faith and in reliance upon the building permit diligently commenced construction and performed substantial work on the development and incurred substantial liabilities for work and materials necessary therefor . . ..' ³ (Emphasis added.)

The ballot pamphlet furnished voters respecting Proposition 20 contained the Detailed Analysis by the Legislative Counsel stating: '4. Beginning February 1, 1973, (the act would) require a permit from a regional commission for any Proposed development (with specified exemptions) within the 'permit area,' . . ..' (Emphasis added.) The ballot pamphlet also contained the Argument in Favor of Proposition 20, jointly authored by a United States Sena tor, a State Senator, and the Speaker of the Assembly, which stated: 'THE SAFEGUARDS: (1) This act will not impose a moratorium or prohibit any particular kind of building, but ensures that authorized construction will have no substantial adverse environmental effect(.)' (Emphasis added in part.)

In imposing the permit requirement on 'any person Wishing to perform any development' on or after 1 February 1973, the language of section 27400 is directed at persons who have not commenced construction on the operative date, and it is conceded by plaintiff that construction could lawfully commence prior to that date without a coastal permit. Nowhere does the act expressly provide for a moratorium on construction commenced prior to 1 February 1973. Reference having been omitted to a moratorium and to work commenced but uncompleted on 1 February, the plain implication of the prospective language used is that the coastal permit requirement would be inapplicable to such projects.

Legislative Counsel's analysis set forth in the voters' pamphlet reinforces this conclusion by having stated a coastal permit would be required for 'proposed' developments beginning 1 February. Further, the ballot argument of the act's proponents expressly stated the act would not impose a moratorium.

Had the act been intended to require a permit for completion of construction commenced before 1 February, the requirement would as a practical matter have resulted in a moratorium on all construction in the permit area. The built-in delays incident to the issuance of permits, which could exceed seven months (§§ 27420, 27423), would have necessitated work stoppages for all development along the California coastline after 1 February 1973 for a significant period ⁴ (except the rare uncompleted projects commenced prior to 1 April 1972). Such interference with construction in progress, tantamount to a moratorium, would result in serious economic dislocations not contemplated by the act, its authors, or the voters.

Therefore, in the absence of language in the act imposing a moratorium, it is reasonable to conclude the voters intended none.

It should here be added that the Legislative Counsel, by opinion rendered nearly two months prior to passage of the act, concluded that a person who, prior to 1 February 1973, in good faith lawfully commenced construction, performed substantial work, and incurred substantial liabilities would be allowed to complete the development without a coastal permit.

Relying on provisions of section 27404 set forth above that no permit is required of certain persons who have commenced construction, plaintiff urges the section thus means all others must obtain permits. It is only by negative implication from this section that such a class can be defined. While providing for exemption, the section does not expressly impose a permit requirement on anyone. The prospective language used in section 27400 and in the Detailed Analysis of the Legislative Counsel, the proponents' express denial of intent to impose a moratorium, and the absence of express statutory provision for a moratorium again lead us to conclude the permit requirement should not be expended by negative implication to construction commenced before 1 February 1973.

Plaintiff suggests that if, as we have concluded, the permit requirement is inapplicable to persons performing substantial work prior to 1 February 1973, the exemption provision of section 27404 will be rendered meaningless because persons satisfying that provision would in any event be exempt. However, the argument misconstrues section 27404. Although that section provides exemption for some not coming within the permit requirement, it also exempts some who do; for example, those who acted in reliance on a building permit obtained prior to the effective date of the act, ⁵ and demolished structures or incurred substantial expenses and liabilities preparatory to construction.

Finally, it would be unjust now to imply a permit requirement for builders who, like defendant, relied on the absence of an express requirement. Even though a particular construction project might actually conform to the act's objectives, construction would have to be interrupted while a permit is sought. These interruptions would obviously result in large losses for builders who performed substantial lawful work prior to 1 February 1973. The result is particularly unwarranted in light of the ease with which the authors of the act could have expressed their intent to require an earlier operative date for the permit. To impose the requirement now by negative implication would simultaneously create and spring a trap, resulting in economic chaos in California's construction industry. ⁶

The mere acquisition of a building permit prior to 1 February 1973 does not give the holder freedom to proceed without commission authorization. Here, however, there is overwhelming evidence that defendant prior to that date not only obtained a building permit but also engaged in substantial lawful work and incurred substantial liabilities. Under the circumstances, we must uphold the trial court's discretion in denying preliminary injunction. ⁷

The order granting writ of supersedeas is vacated forthwith. The order appealed from is affirmed.

McCOMB, BURKE, and SULLIVAN, JJ., concur.

MOSK, Justice (dissenting).

The majority opinion sanctions a construction of the California Coastal Zone Conservation Act which is contrary to the plain language of section 27400 thereof, virtually disregards the provisions of section 27404, and violates settled principles of law. The opinion holds that a...