(Monterey County Super. Ct. No. M73043) Trial Judge: The Honorable Robert A. O'Farrell.
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
This appeal represents the latest skirmish in Doctor Hugh McAllister's battle to stop Sheldon J. Laube and Doctor Nancy J. Engel (Laube & Engle) from building a home on neighboring property visible from his home. Laube & Engel sought a coastal development permit, and the California Coastal Commission (the Commission) granted it. Doctor McAllister now challenges that decision.
The appeal raises myriad issues, one of which implicates two coastal development policies. One policy protects environmentally sensitive habitat areas-in this case, habitat for the Smith's Blue Butterfly and coastal bluff scrub-by restricting development in those areas to uses that are dependent on habitat resources. Another policy protects property owners from the application of development policies in a way that deprives them of beneficial or productive use of their land and causes an unconstitutional taking without compensation. Under applicable regulations, where the strict application of a development policy would require the denial of a permit, but a denial would cause a taking, the permitting agency may relax the policy and grant a permit if it makes the required findings.
As we explain below, strict application of the policy restricting development in habitat areas to resource-dependent uses would have required the Commission to deny the permit. Nevertheless, the Commission granted it. The Commission now claims that it did so to avoid a taking. However, the Commission did not make the findings necessary to justify that action or even consider whether denying a permit would constitute a taking. Thus, in granting the permit, the Commission failed to proceed in the manner required by law and abused its discretion. Accordingly, the judgment must be reversed and the matter remanded to the Commission for a new hearing on the permit application at which it can consider the taking and other issues.
II. STATEMENT OF THE CASE
The Commission approved an application by Laube & Engel for a coastal development permit to build a house on their property (the Project) located on the Big Sur coast in Monterey County. Doctor Hugh McAllister (McAllister) filed a petition for a writ of administrative mandate in the superior court challenging the approval. (Code Civ. Proc., § 1094.5.) The trial court denied the petition.
On appeal from the judgment, McAllister contends that the Commission abused its discretion in granting the permit. He claims the Project does not conform to coastal development policies protecting environmentally sensitive habitat areas, visual and scenic resources, and water resources. He also claims the Commission violated the procedural requirements of the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et seq.); and failed to adequately evaluate or mitigate potentially significant individual and cumulative environmental impacts.*fn1
As noted, we conclude that the Commission abused its discretion in relaxing a restriction on development in environmentally sensitive habitat areas without making the findings necessary to justify doing so. Accordingly, we reverse the judgment and direct the trial court to grant McAllister's petition for a writ of mandate and remand the matter to the Commission for further proceedings.
III. FACTUAL AND PROCEDURAL BACKGROUND
In 1977, the Commission granted Donald Sorensen a development permit to build a house on two adjoining parcels on the Big Sur coast at Kasler Point in Monterey County. One condition of Sorensen's permit required that he formally consolidate the two parcels before he started construction. Sorensen commenced construction but later abandoned the project without ever consolidating the parcels. He then sold them.
In 1999, the subsequent owners sold the two parcels to Laube & Engel. Vestiges of Sorensen's prior development remained. In 2001, Laube & Engel applied to the Monterey County Planning Commission (the Planning Commission) for a permit to build a house and merge the two parcels. The Big Sur Land Use Advisory Committee approved the Project with conditions concerning outside lighting and the removal of invasive vegetation. In response to objections by McAllister, Laube & Engel redesigned and relocated the proposed house and submitted a revised permit application. In March 2003, the Land Use Advisory Committee approved the redesign, and in October 2003, the Planning Commission approved the Project and a lot line adjustment to consolidate the two parcels and granted the permit. McAllister appealed the decision to the Monterey County Board of Supervisors (the County). In January 2004, the County upheld the permit.
In February 2004, McAllister appealed the County's decision to the Commission.*fn2 (§ 30603.) In September 2004, the Commission found that the appeal raised a "substantial issue" concerning the protection of coastal resources and scheduled a de novo hearing on the permit application. (§ 30625, subd. (b)(2); Cal.Code Regs., tit. 14, § 13115, subd. (b).)*fn3 The de novo hearing took place in December 2004. The Commission approved the Project as redesigned, granted the permit with conditions, and directed staff to prepare findings and conclusion that reflected the Commission's decision.
In January 2005, McAllister filed a second petition for a writ of administrative mandate, this time challenging the Commission's decision. (Code of Civ. Proc. § 1094.5.) In April 2005, staff submitted proposed findings, and in May 2005, the Commission adopted them. Thereafter, McAllister amended his writ petition.
In August 2006, the trial court issued an "Intended Decision" granting the petition. All parties filed objections. In December 2006, the court modified its decision and denied the petition. On February 22, 2007, the court entered the judgment from which McAllister now appeals.*fn4
In reviewing an agency's decision under Code of Civil Procedure section 1094.5, the trial court determines whether (1) the agency proceeded without, or in excess of, jurisdiction; (2) there was a fair hearing; and (3) the agency abused its discretion. (La Costa Beach Homeowners' Assn. v. California Coastal Com. (2002) 101 Cal.App.4th 804, 814 (La Costa.) "An '[a]buse of discretion is established if the [agency failed to proceed] in the manner required by law, [its] order or decision is not supported by the findings, or its findings are not supported by substantial evidence.' " (Ibid.; Eden Hosp. Dist. v. Belshe (1998) 65 Cal.App.4th 908, 915-916; § 30801; Code Civ. Proc. § 1094.5, subd. (b).)
The trial court presumes that the agency's decision is supported by substantial evidence, and the petitioner bears the burden of demonstrating the contrary. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 336; Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1212.) In reviewing the agency's decision, the trial court examines the whole record and considers all relevant evidence, including evidence which detracts from the decision. (Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 503 (Bolsa Chica).) "Although this task involves some weighing to fairly estimate the worth of the evidence, that limited weighing does not constitute independent review where the court substitutes its own findings and inferences for that of the Commission.
Rather, it is for the [agency] to weigh the preponderance of conflicting evidence, as [the court] may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it." (Kirkorwoicz v. California Coastal Com. (2000) 83 Cal.App.4th 980, 986; Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1077-1078 [review of an agency's factual determinations is deferential and all doubts and inferences are resolved in favor of the agency].) On the other hand, the trial court exercises independent judgment on pure questions of law, including the interpretation of statutes and judicial precedent. (Girardo v. Antonioli (1994) 8 Cal.4th 791, 800-801; Donaldson v. Department of Real Estate (2005) 134 Cal.App.4th 948, 954.)
On appeal from the denial of a petition, our role is identical to that of the trial court. (Bolsa Chica, supra, 71 Cal.App.4th at p. 503; Saad v. City of Berkeley, supra, 24 Cal.App.4th at p. 1212; Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610 (Sierra Club).)
As noted, McAllister contends that the Commission abused its discretion in finding that the Project conforms to the applicable state and local regulatory policies concerning protection of environmentally sensitive habitat areas, visual and scenic resources, and water resources.
V. COASTAL ACT AND LOCAL COASTAL PROGRAM POLICIES
The California Coastal Act (the Coastal Act or Act) (§ 30000 et seq.) provides "a comprehensive scheme to govern land use planning for the entire coastal zone of California." (Yost v. Thomas (1984) 36 Cal.3d 561, 565.) One of its goals is to "protect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources." (§ 30001.5, subd. (a).) To achieve this goal, the Act sets forth specific policies governing public access, recreation, the marine environment, land resources, and development along the coast. (§§ 30210-30265.5.)
"The Coastal Act creates a shared responsibility between local governments and the Coastal Commission for the planning of coastal development. Local governments are required to Develop Local Coastal Programs (LCPs) that consist of policies and plans for coastal development within the coastal areas of their jurisdiction." (4 Manaster & Selmi, Cal. Environmental Law and Land Use Practice (2004) Coastal Zone Regulation, § 66.20, p. 29, fn. omitted (4 Manaster & Selmi); Schneider v. California Coastal Com. (2006) 140 Cal.App.4th 1339, 1344.)
A local coastal program includes a land use plan, which functions as the general plan for property in the coastal zone; and a local implementation plan, which includes the zoning, zoning maps, and other implementing actions for the coastal zone. (§§ 30108.5, 30108.6.) After a local government prepares its local coastal program, the Commission reviews it. If satisfied that it conforms to the policies and standards of the Act, the Commission certifies it. (§§ 30512, subd. (c), 30513; Santa Barbara County Flower & Nursery Growers Assn. v. County of Santa Barbara (2004) 121 Cal.App.4th 864, 871-872; 4 Manaster & Selmi, supra, § 66.20, pp. 29-35].)
In 1985, the County adopted the Monterey County Local Coastal Program, which included the Big Sur Land Use Plan and a local implementation plan, which is codified in Title 20 of the Monterey County Code as the Coastal Zoning Ordinance and sets forth the specific regulations implementing the Big Sur Land Use Plan.*fn5 (Coastal Zoning Ordinance, §§ 20.02.010, 20.145 et seq.) The Commission certified the Monterey County Local Coastal Program in 1986.
B. CONFORMANCE WITH HABITAT POLICIES
1. POLICIES GOVERNING DEVELOPMENT IN HABITAT AREAS
The Coastal Act reflects " ' "strong rules of public policy adopted for the public's benefit" ' that implicate matters of vital interest." (Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, 1376 (Feduniak), quoting City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 493.) The Act provides heightened protection for areas that are designated "environmentally sensitive habitat areas" (habitat areas) and establishes strict preferences and priorities that guide development in them.*fn6 (§ 30240; Sierra Club, supra, 12 Cal.App.4th at p. 611.) Specifically, section 30240, provides: "(a) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas. [¶] (b) Development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat and recreation areas."
In accordance with section 30240, section 3.3 of the Big Sur Land Use Plan observes that "[e]nvironmentally sensitive habitats are areas in which plant or animal life or their habitats are rare or particularly valuable because of their special nature or role in an ecosystem" and acknowledges that "[t]he California Coastal Act limits uses [in habitat areas] to those which are dependent on such resources: examples include nature education and research, hunting, fishing, and aquaculture." (See Coastal Zoning Ordinance, § 20.145.020.EE [same].)
Section 3.3.1 of the Big Sur Land Use Plan states that the "Key Policy" guiding development in environmentally sensitive habitat areas is that "[a]ll practical efforts shall be made to maintain, restore, and if possible enhance Big Sur's environmentally sensitive habitats. The development of all categories of land use, both public and private, should be subordinate to the protection of these critical areas." (See Coastal Zoning Ordinance, § 20.145.040.)
Section 3.3.2 of the Big Sur Land Use Plan establishes the "General Policies" controlling development in habitat areas. Specifically, section 184.108.40.206 of the Big Sur Land Use Plan provides, "Development, including vegetation removal, excavation, grading, filling, and the construction of roads and structures, shall not be permitted in environmentally sensitive areas if it results in any potential disruption of habitat value. To approve development within any of these habitats the County must find that disruption of a habitat caused by the development is not significant." (See Coastal Zoning Ordinance, § 20.145.020.) Section 220.127.116.11 of the Big Sur Land Use Plan provides, "Where private or public development is proposed, in documented or expected locations of environmentally sensitive habitats, field surveys by qualified individuals or agencies shall be made in order to determine precise location of the habitat and to recommend mitigating measures to ensure its protection." Section 18.104.22.168 of the Big Sur Land Use Plan provides, "For developments approved within environmentally sensitive habitats, the removal of indigenous vegetation and land disturbance (grading, excavation, paving, etc.) associated with the development shall be limited to that needed for the structural improvements themselves. The guiding philosophy shall be to limit the area of disturbance, to maximize the maintenance of the natural topography of the site, and to favor structural designs which achieve these goals."
2. THE COMMISSION'S FINDINGS
In its findings, the Commission noted that the Big Sur Land Use Plan requires that "all practical effort . . . be made to maintain, restore, and if possible enhance" habitat areas and prohibits development in them "if it results in any potential disruption of habitat value . . . ." Thus, the Commission opined that in order for the Project to conform to applicable habitat policies, it could not significantly disrupt any habitat and must "mitigate for unavoidable impacts that do not cause a significant disruption of habitat."
Turning to the Project, the Commission found that it is located in, and had the potential to disrupt, two habitat areas-the Smith's Blue Butterfly habitat and the coastal bluff scrub habitat. The Commission explained that the site is located in the middle of the coastal range for the Smith's Blue Butterfly, which is on the federal endangered species list, and the Project could affect between 28 and 111 seacliff buckwheat plants, one of only two species of host plants for the butterflies. Thus, the Project and associated construction could diminish potential butterfly habitat.*fn7 However, the Commission found that although the removal of buckwheat plants would eliminate some butterfly habitat, their removal would be limited to that necessary to build the Project. The Commission further found that, as mitigation, the Project would be required to enlarge the remaining habitat by planting three times the number of buckwheat plants that would have to be removed.
Next, the Commission observed that the California Department of Fish and Game considers the coastal bluff scrub habitat to be a threatened plant community. However, the Commission noted that the prior Sorensen excavation had already severely degraded the scrub habitat in the area of the proposed house, and invasive exotic plants had taken over most of the coastal terrace seaward of the building site. Thus, the Commission opined that the impact of the Project on the bluff scrub habitat would be minimal and mitigated by a requirement that the Project remove the invasive plants and restore an area equal to the footprint of the house with native plants appropriate to the coastal bluff.
In all, the Commission concluded that the Project would have a potentially negative impact on the two habitat areas, but the mitigation measures reduced those impacts to a level of insignificance, and, therefore the Project conformed to habitat-area policies.
3. PERMISSIBILITY OF PROJECT IN HABITAT AREA
In his opening and reply briefs, McAllister asserted that the habitat policies in Big Sur Land Use Plan must be interpreted in a way that is consistent with section 30240, subdivision (a) (section 30240(a)), that is, they must incorporate the statutory restriction on development in habitat areas to resource-dependent uses. Thus, McAllister claimed that the Commission erred in finding that the Project conformed to the habitat-area policies because the Project is not a resource-dependent use.
In response, the Commission and Laube & Engel asserted that, after the Commission certified the Monterey County Local Coastal Program in 1986, development in habitat areas was governed by the Big Sur Land Use Plan and not section 30240(a). Thus, when the Commission reviewed the Project, section 30240(a) was irrelevant. The only issue was whether the Project conformed to the Big Sur Land Use Plan. (§ 30604, subd. (b).)*fn8 The Commission and Laube & Engel argued that the Project conformed because (1) disruption of the two habitat areas was limited to what was necessary to build the Project, and (2) mitigation measures reduced disruption of the habitat areas a level of insignificance. (Big Sur Land Use Plan, §§ 22.214.171.124, 126.96.36.199, 188.8.131.52; Coastal Zoning Ordinance, § 20.145.020.)
Laube & Engel further questioned whether the site was in a butterfly habitat area. They noted that, despite the biological surveys conducted at the site, no butterflies were ever observed there.
We requested further briefing on a number of issues, including the following: Did the Commission find that the Project was within habitat areas? What is the meaning of section 30240(a)? And should this court assume that (1) the County intended the Monterey County Local Coastal Program to include the developmental restrictions of section 30240(a) and (2) the Commission certified the program with the understanding that it included those restrictions? We discuss these issues below.
The Commission acknowledges its determination that the Project was located within two habitat areas. In particular, the Commission notes its findings that, in general, seacliff buckwheat plants provide habitat for the Smith's Blue Butterfly; the Project site is in the middle of the butterfly's coastal range; there were more than 900 seacliff buckwheat plants on the Project site; some of those plants were in the area of the existing driveway and footprint of the proposes house; and, although field surveys had not reported the presence of butterflies at the site, the site may and could provide habitat and thus constituted a protected habitat area. The Commission further notes its findings that the entire site is part of the greater habitat for coastal bluff scrub, even though there were no bluff scrub in the building envelope because of prior excavation and grading and the growth of invasive ice plant.
Laube & Engel now opine that the Commission's determination concerning the habitat areas were "inaccurate" and reflected "imprecise wording." They claim that although the "the project site as a whole included [a habitat area] which included buckwheat plants," the Commission did not find that the entire building envelope or the buckwheat plants within it constituted protected habitat areas. They also reiterate their argument that because no butterflies have been observed at the site, and there are only a few buckwheat plants and no bluff scrub within the building envelope, that envelope area cannot be considered a habitat area. Indeed, at oral argument, Laube & Engel suggested that the Commission abused its discretion in determining that buckwheat plants represented a habitat area.
We find nothing imprecise or inaccurate about the Commission's habitat findings and no abuse of discretion. Concerning the butterfly habitat, the record amply supports the Commission's findings noted above. Moreover, the record supports a finding that the failure to observe butterflies during surveys at site does not, standing alone, mean that the area is not butterfly habitat or potential habitat.
Concerning the coastal bluff scrub habitat, Laube & Engel provide no authority for the proposition that the destruction of a protected or endangered plant species in one section of a habitat area either precludes a finding that that particular section is a habitat area or is within a habitat area or exempts that section from the development restrictions. Moreover, we reject this view because it would hasten the piecemeal shrinkage of a habitat area by encouraging the covert destruction of developmentally desirable areas in habitat areas to render them subject to less restrictive habitat policies. Such a consequence is inconsistent with a fundamental goal of the Coastal Act to "[p]rotect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources." (§ 30001.5, subd. (a), italics added.)
Under the circumstances, the record supports the Commission's findings that the Project had the potential to disrupt habitat areas and was, therefore, subject to the policies governing development in habitat areas.
We agree with the Commission and Laube & Engel that, in determining conformance with habitat policies, the Commission applies only at the Monterey County Local Coastal Program. (§ 30604, subd. (b).) However, if, as McAllister claims, that program incorporated the development restrictions in section 30240(a), then the Commission had to determine conformance with those statutory restrictions. Thus, we first discuss the meaning of ...