Whaler's Village Club v. California Costal Com.

• Decision Date: 11 October 1985
• Docket Number: B-005654
• Citation: 173 Cal.App.3d 240,220 Cal.Rptr. 2
• Court: California Court of Appeals Court of Appeals
• Parties: WHALERS' VILLAGE CLUB, Plaintiff and Respondent. v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant. CALIFORNIA COASTAL COMMISSION, Plaintiff and Appellant, v. WHALERS' VILLAGE CLUB, Defendant and Respondent. Civ.

Page 2

220 Cal.Rptr. 2

173 Cal.App.3d 240

WHALERS' VILLAGE CLUB, Plaintiff and Respondent. v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

CALIFORNIA COASTAL COMMISSION, Plaintiff and Appellant, v. WHALERS' VILLAGE CLUB, Defendant and Respondent.

Civ. B-005654.

Court of Appeal, Second District, Division 6, California.

Oct. 11, 1985.

Appeal Dismissed and Certiorari Denied May 19, 1986. See 106 S.Ct. 1962.

John K. Van de Kamp, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen. and Jamee Jordan Patterson, Deputy Atty. Gen., for respondent, plaintiff and appellant.

Ball, Hunt, Hart, Brown & Baerwitz, Charles E. Greenberg and Agnes H. Mulhearn, Long Beach, John W. Wissinger, Oxnard, for petitioner, defendant and respondent.

Ronald A. Zumbrun, Robert K. Best and Timothy A. Bittle, Pacific Legal Foundation, Sacramento, as amicus curiae on behalf of petitioner, defendant and respondent.

STONE, Presiding Justice.

The California Coastal Commission (Commission) appeals from a judgment granting a writ of mandamus ordering the Commission: 1) to remove from a new development permit conditions requiring respondent to offer to dedicate a public access easement along the beach fronting its property and cease interference with persons presently using the beach, 2) to unconditionally waive any claim of liability on the part of the Commission or any other public agency for any damage from erosion, and 3) to acknowledge that construction of the revetment may result in ineligibility for public disaster funds or loans for repair, replacement or rehabilitation of the property. The Commission also appeals denial of relief in its action for injunctive relief and civil penalties for violation of the California Coastal Act. (Pub. Resources Code §§ 30000 et seq.) ¹ We conclude the Commission could properly impose a condition that respondent offer to dedicate a public access easement. We further conclude that the Commission could extract a waiver of liability for damage caused by or to the construction for which a permit was issued but that the condition imposed was overly broad. There is insufficient evidence in the record to necessitate acknowledgment of ineligibility for public disaster funds. Accordingly, we affirm the judgment in part and reverse in part and remand to the trial court for a determination of the Commission's action for injunctive relief and civil penalties in light of this opinion.

FACTS

Whaler's Village, respondent, consists of 29 single-family homes built in 1969 and located on Pacific Coast Highway in Ventura County, California. The record indicates that when the homes were built, the beach extended well over 100 feet seaward, and wave action, even during storms, never came within 15 to 20 feet of the structures. Each house had two 12 foot deep friction-bearing caissons seaward and a load-bearing foundation wall 20 feet landward supporting the first floor slab which was poured directly on the sand. The caissons, not designed to support the structure alone, required a minimum of nine feet embedment to support vertical loads.

In March 1978, massive storms washed away large amounts of sand exposing the foundation walls. Homeowners avoided even more extensive damage by placing sandbags seaward of the foundation. They were advised by their consultants that a rock revetment in front of the caissons would help protect their homes from the force of the waves.

In October 1978, Whaler's Village applied to the South Coast Regional Commission (Regional Commission) for a coastal development permit ( § 30600) to construct a rock revetment of boulders and filter blanket on the beach under and in front of 17 of the homes. The Commission staff recommended granting the permit, conditioned upon the applicant's offer to dedicate an easement for public access from the toe of the revetment seaward to the mean high tide line. The homeowners withdrew their application.

In February 1980, similar violent storms exposed the caissons almost entirely, causing substantial damage to one house when the caissons sank approximately one foot and the first floor slab cracked over the foundation wall. Without applying for a coastal permit, Whaler's Village built a revetment consisting of 5-7 ton boulders with 50-150 pound boulders and gravel fill immediately in front of and beneath the 17 oceanfront homes and extending 3-5 feet above beach level and 6-8 feet into the sand. In February 1981, the Regional Commission notified Whaler's Village that a coastal development permit was necessary for placement of rocks and presence of mechanized construction equipment on the beach, and that failure to obtain a permit constituted a violation of the Coastal Act. In March 1981, following storms and high tides the homeowners placed additional boulders on the revetment. In May 1981, Whaler's Village applied for a permit for their already completed revetment. December 16, 1981, the Commission approved the permit application subject to the following conditions:

"1. The applicant shall execute and record a document ... irrevocably offering to dedicate to a public agency or private association approved by the Executive Director, an easement for public access and passive recreational use along the shoreline. The document shall also restrict the applicant from interfering with present use by the public of the areas subject to the easement prior to the acceptance of the offer. Such easement shall be for the entire width of the property, extending seaward from the toe of the revetment to the mean high tideline ....

"2. ... the applicant shall submit a deed restriction which provides '(a) that the applicant understand that the site is subject to extraordinary hazard from erosion and that the applicant assumes the liability from this hazard; (b) the applicant unconditionally waives any claim of liability on the part of the Commission or any other public agency for any damage from such hazard; and (c) the applicant understands that construction in the face of this known hazard may make them ineligible for public disaster funds or loans for repair, replacement, or rehabilitation of the property in the event of erosion.' "

Whaler's Village filed a Petition for Writ of Mandate challenging the Commission's permit conditions. ( § 30801; Code Civ.Proc., § 1094.5.) The Commission filed a Complaint for Injunctive Relief, Civil Fines, Penalties and Exemplary Damages to enforce provisions of the Coastal Act. Whaler's Village raised illegality and unconstitutionality of the conditions as an affirmative defense. Trial on the two cases was consolidated and the parties stipulated that the administrative record be admitted into evidence for purposes of both proceedings. Answers to interrogatories and requests for admissions as well as engineering reports and testimony on behalf of Whaler's Village were admitted into evidence in the enforcement action only.

After the trial court took the matter under submission, Whaler's Village sought an emergency permit to undertake repair work on the revetment due to summer storms and wave action in August 1983. The Commission issued an emergency permit with the same conditions as those appealed. The parties stipulated that the outcome of the litigation on the original permit would also be binding on the emergency permit.

December 12, 1983, the trial court issued its Statement of Intended Decision Granting Peremptory Writ of Mandate. The court used the "independent judgment" test, "in that the taking here is of a vested property right, not a regulation of future use of property" and stated that "even using the 'substantial evidence' test, the Court can find no substantial evidence in the record to support the required dedication and waiver conditions." The court found that, although the Coastal Act may require a permit "for repair work such as done by petitioners in that tractors and machinery were required to go upon the beach", the revetment did not constitute a "new development" allowing the right to demand the dedication required; there is no evidence to support a conclusion that the revetment will impede public access in any way different than caused by the homes themselves; there is no evidence to support the Commission's findings that construction of the revetment adversely affected public access to or across the beach; the condition requiring the homeowners to deed "their entire private beach to the State or lose their homes to the sea constitutes an unlawful taking of private property without justification or the payment of just compensation," and the waiver of liability is unsupported by the record. The court entered judgment granting a peremptory writ, commanded the Commission to issue the permit and the emergency permit without the challenged conditions, and held that the Commission take nothing by its complaint.

DISCUSSION

I Standard of Review for New Development Within the Meaning of Section 30212

If the decision of an administartive agency substantially affects a "fundamental vested right," the trial court must not only examine the administrative record for errors of law, but also must exercise its independent judgment upon the evidence. ² However, when the administrative decision neither involves nor substantially affects such a right, the trial court must review the entire administrative record to determine whether the findings are supported by substantial evidence and if the agency committed any errors of law. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 395, 188 Cal.Rptr. 891, 657 P.2d 383; Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242.)

If the trial court was authorized to exercise its independent judgment on the evidence, the reviewing court can overturn its factual findings only if the evidence received by the trial court, including the administrative record, is insufficient as a matter of law to sustain the finding. If, however, the trial court was...