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Strother v. California Coastal Commission

April 30, 2009


Appeal from a judgment of the Superior Court of Orange County, Thierry Patrick Colaw, Judge. Reversed. (Super. Ct. No. 30-2008-00042374).

The opinion of the court was delivered by: Rylaarsdam, Acting P. J.



This case requires us to construe apparently inconsistent sections of the California Environmental Quality Act (CEQA; Pub. Resources Code, §§ 21000 et seq., 21050; all further statutory references are to this Public Resources Code unless otherwise indicated) and the California Coastal Act of 1976 (Coastal Act; § 30000 et seq.) governing the finality of a decision by the California Coastal Commission (Commission) involving a potentially significant effect on the environment.

Plaintiffs Lee Strother, Casey and Christy Armstrong, Jim and Kathleen Sigafoos, Tricia Madding, and Ronald and Gay Redcay appeal from a judgment dismissing their petition for writ of mandate to vacate decisions by Commission approving coastal development permits for two unimproved residential lots. The court entered judgment after sustaining, without leave to amend, demurrers by Commission and real parties in interest Ernest and Paulette Alvarez and Mark Cragun on the ground plaintiffs failed to timely file their petition. Applying the paramount principle of statutory construction that, where possible, courts harmonize potentially conflicting statutes, we conclude plaintiffs are entitled to proceed with a limited challenge to Commission‟s approval of the coastal development permits.


Because this appeal is from a judgment of dismissal based on the sustaining of demurrers without leave to amend, we assume the truth of all properly pleaded allegations in the petition. (Serra Canyon Co., Ltd. v. California Coastal Com. (2004) 120 Cal.App.4th 663, 667.)

Plaintiffs allege they reside in a coastal area of San Clemente and over the years have enjoyed views across nine undeveloped parcels located on a coastal bluff. Members of the public have also used these vacant lots for access to the beach. Real parties Ernest and Paulette Alvarez own Lot 5 of the coastal bluff‟s undeveloped lots. Real party Mark Cragun owns Lot 6 of the same parcel.

Real parties each filed an application with Commission for coastal development permits allowing the construction of a multi-story single-family residence on their lots respective. Two weeks before the November 14, 2007 hearing on both applications, Commission‟s staff filed two 30-page reports recommending approval of each request with conditions, including a requirement that real parties enter into a memorandum of understanding with the owners of five other undeveloped lots to provide for view corridors and pedestrian access to the beach.

Plaintiffs opposed the applications, but at the November 14 public meeting Commission approved coastal development permits for both lots. However, Commission did not file notice of its approval of the permits with the California Resources Agency until December 27. The agency posted the notices the following day.

On January 28, 2008, plaintiffs filed this action containing two causes of action. The first count alleges Commission violated its regulatory program because its staff‟s reports on real parties‟ development applications "failed to evaluate adequately a reasonable range of alternatives to either" proposed project, "including lower densit[ies]," and the "mitigation measure recommended by the Staff . . . and adopted by the Commission improperly deferred decisions on the actual measures to be implemented for mitigation, and left those . . . decisions to private parties." The second count alleges, in part, Commission violated certain "procedural requirements" of its regulatory program by "providing less than 14 days‟ notice of the availability . . . of the lengthy [s]taff [r]eports," and while "[p]etitioners managed to prepare and submit some written comments to the Commission . . . before the November 14 meeting," the latter "failed to prepare any written responses to any of [the] substantive comments . . . ."

Commission and real parties separately demurred to the petition, arguing plaintiffs had failed to file it within 60 days after Commission approved the coastal development permits as required by section 30801. Plaintiffs opposed the demurrers, arguing the applicable statute of limitations was section 21080.5, subdivision (g), which requires an action to be filed within 30 days after notice of the approval is filed with the California Resources Agency. Agreeing with Commission and real parties, the trial court sustained the demurrers and dismissed the action.


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