Sierra Club v. California Coastal Com.

• Decision Date: 15 January 1993
• Docket Number: No. A053941,A053941
• Citation: 12 Cal.App.4th 602,15 Cal.Rptr.2d 779
• Court: California Court of Appeals Court of Appeals
• Parties: SIERRA CLUB, Plaintiff and Respondent, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant; COUNTY OF MENDOCINO, Real Party in Interest and Appellant.

Page 779

15 Cal.Rptr.2d 779

12 Cal.App.4th 602

SIERRA CLUB, Plaintiff and Respondent, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant COUNTY OF MENDOCINO, Real Party in Interest and Appellant.

No. A053941.

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

Jan. 15, 1993.

Rehearing Denied Feb. 16, 1993.

Review Denied April 1, 1993.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Jan S. Stevens, Acting Asst. Atty. Gen., Patricia Sheehan Peterson, Deputy Atty. Gen., Oakland, for defendant/appellant.

H. Peter Klein, County Counsel, Yves A. Hebert, Deputy, Ukiah, for real party in interest.

Joseph J. Brecher, Oakland, for plaintiff/respondent.

SMITH, Associate Justice.

The Sierra Club petitioned the superior court for a writ of mandate (Code Civ.Proc., § 1094.5) against a decision of the California Coastal Commission (Commission) approving and certifying a land use plan (LUP) of real party in interest, the County of Mendocino (County), as consistent with the California Coastal Act of 1976 (Coastal Act or Act) (Pub. Resources Code, § 30000 et seq.). ¹ The Commission and County appeal from the court's issuance of a peremptory writ commanding the Commission to set aside its approval for failure to confer environmentally sensitive habitat area (ESHA) status ( §§ 30107.5, 30240) on pygmy forest areas. We affirm.

BACKGROUND

The Coastal Act requires a coastal county to have a local coastal program (LCP), including an LUP, which meets the requirements of, and implements the provisions and policies of, the Coastal Act at the local level. ( §§ 30108.6, 30100.5.)

A county may ask the Commission to prepare all or part of an LCP ( § 30500, subd. (a)), and that happened here. The County in 1978 asked the Commission to draft a coastal LUP (the coastal element of its general plan), and the Commission, after public hearings and input from staff and citizen advisory committees, produced a consultant-prepared draft in November 1980 (augmented with staff and committee comments in April 1981) for County review.

The draft in part identified "pygmy" and "pygmy-type" vegetation in the coastal zone, noting that its preservation was threatened: "Two types of pygmy vegetation exist along the Mendocino coast. Both are characterized by stunted trees but have different soil and vegetation types. True pygmy forests are valuable to scientists because they are probably the best example of a living community in balance with its ecosystem. Pygmy forest vegetation covers about 1,050 acres in the coastal zone, including areas in public ownership at Jughandle State Reserve and Van Damme State Park. Pygmy-type forest accounts for about 1,120 acres, mainly between Pt. Arena and Haven's Neck. Because pygmy vegetation is found in a section of the coast experiencing development pressures and because it yields no revenue from agriculture or timber, its preservation has become an issue. An immediate environmental concern is the ability of pygmy soils to provide satisfactory leaching fields for septic systems. Five acres per dwelling unit appears to be the maximum satisfactory density in pygmy soils, and an even lower density may be necessary in some areas...."

The draft did not mention ESHA status for those areas but included a policy limiting density to one housing unit every five acres and addressing the perceived leach-field problem. ²

The County held its own public hearings on the draft, and its planning commission and board of supervisors adopted it with various revisions, none of which conferred ESHA status on the pygmy areas. The draft was referred by resolution to the Commission for certification consideration in late 1983.

The Commission held a public hearing on the adopted LUP on May 8, 1985, and found substantial issue as to Coastal Act consistency. The Commission unanimously denied certification of the LUP as submitted, in part due to concern that ESHA designation was not given to pygmy forests. ³

The County had requested suggestions for curative modifications should certification be denied ( § 30512, subd. (b)), and the Commission continued the matter for alternatives to be worked out. The County proposed mitigation measures short of ESHA designation (except where endangered species might be found), but a September 12, 1985 Commission staff report adhered to the need for ESHA status for pygmy forests plus greater protection of pygmy and pygmy-type vegetation generally, including supporting soils. ⁴ The County responded formally, standing by its mitigation measures in lieu of ESHA designation.

The Commission reopened consideration of the suggested modifications and took additional testimony at a lengthy hearing on September 26. At its conclusion, a divided Commission voted to approve the LUP as amended to include the County's mitigating measures rather than the staff proposals for ESHA designation.

The approved LUP regulated "pygmy vegetation," limited to "stunted forest" and excluding pygmy-type vegetation or mere pygmy soils. ⁵ It denied ESHA status After formal adoption of the modified LUP by the County's board of supervisors, the Commission on November 20, 1985 certified it and on February 7, 1986 adopted supporting findings.

to regulated forests unless they contained rare or endangered plant species. However, development of pygmy vegetation land was limited to "low density (defined as 2 to 5 acres)," consistent with County water-quality and ecosystem regulations, with further study of environmental impacts to follow. Parcels "entirely within" pygmy vegetation areas required planned development (PD) with measures designed to mitigate adverse environmental and septic concerns. ⁶

The Sierra Club meanwhile filed this action for writ of mandate in superior court two days after the November 1985 certification. The petition challenged in part the Commission's failure to require ESHA status for pygmy forest habitat. Due to the County's party status, venue was transferred by stipulation to Marin County (see § 30806, subd. (a)), where the court heard the matter in 1991, confined by then to the ESHA issue.

The court by a written decision concluded that the Commission's decision to certify the LUP without designating and treating the pygmy forest as an ESHA was not supported by substantial evidence in light of the whole record (Code of Civ.Proc., § 1094.5, subd. (c)). The court ordered the issuance of a peremptory writ commanding the Commission to set aside its findings and order regarding pygmy forests, to set aside that part of the County LCP and to reconsider its action on remand.

DISCUSSION

I

Our review is governed by Code of Civil Procedure section 1094.5, which defines "The 'in light of the whole record' language means that the court reviewing the agency's decision cannot just isolate the evidence supporting the findings and call it a day, thereby disregarding other relevant evidence in the record. [Citation.] Rather, the court must consider all relevant evidence, including evidence detracting from the decision, a task which involves some weighing to fairly estimate the worth of the evidence. [Citation.]" (Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 141-142, 284 Cal.Rptr. 427; Bixby v. Pierno (1971) 4 Cal.3d 130, 149, fn. 22, 93 Cal.Rptr. 234, 481 P.2d 242.) That limited weighing is not an independent review where the court substitutes its own findings or inferences for the agency's. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32, 112 Cal.Rptr. 805, 11 Cal.3d 28.) "It is for the agency to weigh the preponderance of conflicting evidence. [Citation.] Courts may reverse an agency's decision only if, based on the evidence before the agency, a reasonable person could not reach the conclusion reached by the agency." (McMillan v. American Gen. Fin. Corp. (1976) 60 Cal.App.3d 175, 186, 131 Cal.Rptr. 462.) ⁷

prejudicial abuse of discretion as an agency's decision being unsupported by its findings or its findings being unsupported by the evidence (id., [12 Cal.App.4th 610] subd. (b)). Where support for findings is challenged, abuse of discretion exists if "the findings are not supported by substantial evidence in light of the whole record" (id., subd. (c)).

The County and Commission urge that the trial court misapplied the standard, improperly reweighing the evidence. However, the record as a whole fails to rebut the presumption that duty was regularly performed in that regard. (Evid.Code, § 664; Ross v. Superior Court (1977) 19 Cal.3d 899, 913-915, 141 Cal.Rptr. 133, 569 P.2d 727.)

Moreover, the whole argument is academic in the procedural posture of this case. Our review standard on appeal is identical to the trial court's. Bixby v. Pierno, supra, 4 Cal.3d 130, 149 & fn. 22, 93 Cal.Rptr. 234, 481 P.2d 242.) Therefore, if substantial evidence supports the Commission's action, we reverse; if not, we affirm. Possible misapplication of the review standard below has no bearing on the outcome here. (Cf. id., at p. 149, fn. 22, 93 Cal.Rptr. 234, 481 P.2d 242 [because the review standard on appeal was the same, any error in the trial court's use of an " 'isolation' " test for substantial evidence offered no ground for reversal].)

II

At issue is whether substantial evidence supports the Commission's decision to deny ESHA status to pygmy forests. Section 30107.5 provides this two-part test for ESHA status (numbering ours): " 'Environmentally sensitive area' means any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments."

The consequences of ESHA status are delineated in section 30240: "(a) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those...