Zoning, Planning and Use
Jun. 22, 2002
Declaratory Relief Isn't Available For Decisions of Commission
Focus Column - By Daniel A. Olivas - Carl sipped his tall, double-shot, decaf cappuccino as he edited the first draft of a pleading that he hoped to file by the end of the week. Carl's clients, Mike and Isabel, own a home by the beach within the coastal zone. Although their three children are grown, they enjoy having any combination of their six grandchildren stay with them.
By Daniel A. Olivas
Carl sipped his tall, double-shot, decaf cappuccino as he edited the first draft of a pleading that he hoped to file by the end of the week. Carl's clients, Mike and Isabel, own a home by the beach within the coastal zone. Although their three children are grown, they enjoy having any combination of their six grandchildren stay with them. So Mike and Isabel planned to expand the footprint of their house, among other improvements.
After researching the issue for his friends, Carl informed them that they had to obtain a coastal development permit from the California Coastal Commission before proceeding. The California Coastal Act of 1976, Public Resource Code Section 30000 et seq., requires that "on or after January 1, 1977, any person wishing to perform or undertake any development in the coastal zone ... shall obtain a coastal development permit." Section 30600(a).
"Development" subject to the permit requirements of the act includes, but is not limited to, the grading, removing, dredging, mining or extraction of any materials; the placement or erection of any solid material or structure; and the removal or harvesting of major vegetation other than for agricultural purposes. Section 30106.
Carl and his clients had no argument with the commission's assertion of jurisdiction, which generally encompasses land and water areas of California from the Oregon border to the border of Mexico, extending seaward to the state's outer limit of jurisdiction, including all offshore islands, and extending inland generally 1,000 yards from the mean high-tide line of the sea. Section 30103.
In significant coastal estuarine, habitat and recreational areas, the commission's jurisdiction extends inland to the first major ridgeline paralleling the sea or five miles from the mean high-tide line of the sea, whichever is less. In developed urban areas, the zone generally extends inland less than 1,000 yards. Section 30103.
Carl assisted Mike and Isabel with their permit application and even appeared for them at the commission's public hearing. Carl's clients, however, were not happy about the commission's final decision. Although the commission voted unanimously to approve the development, it also imposed certain conditions to mitigate the negative impacts that the development would have on public access to the beach.
Mike and Isabel decided that the only option was to file suit, so they retained Carl to represent them in the litigation. Although Carl had never sued the commission before, he agreed to represent his friends and began drafting the petition for writ of administrative mandate as authorized by the Coastal Act: "Any aggrieved person shall have a right to judicial review of any decision or action of the commission by filing a petition for a writ of mandate in accordance with Section 1094.5 of the Code of Civil Procedure, within 60 days." Section 30801.
Carl figured that, with such a short limitations period, it would be best to get the petition on file and then open up settlement negotiations with the commission.
Carl realized that the "Commission's hearings are quasi-judicial." Ojavan Investors Inc. v. California Coastal Comm'n, 26 Cal.App.4th 516 (1994). In other words, the petition was nothing more than an appeal from one tribunal, the commission, to another, the Superior Court.
Thus, the record that was before the commission when it made its decision was the functional equivalent of an appellate record that the parties and court would refer to at the hearing on the merits. Carl also knew from experience suing other state agencies that it would take a few months for the record to be prepared and certified. Thus, the petition could not be heard right away even though his clients wanted results now.
As he savored his cappuccino, Carl had a brainstorm: Maybe he could plead for declaratory relief, file a motion for summary adjudication on that claim and essentially win the case before the administrative record was ready.
With a smile on his lips, Carl turned to his computer keyboard and started to research the area. After a few word searches in the California database, Carl's smile quickly turned to a frown. His grand idea slipped away with each click of his mouse as he read the words: "It is settled that an action for declaratory relief is not appropriate to review [the Coastal Commission's] decision." California v. Superior Court (Veta), 12 Cal.3d 237 (1974).
This is because the landowners' right to sue the Coastal Commission arises from Section 30801 of the Public Resources Code, which specifically limits relief to a petition for a writ of mandate in accordance with Section 1094.5 of the Code of Civil Procedure.
Section 30801 is a mere codification of general mandate principles. See McGill v. Regents of University of Cal., 44 Cal.App.4th 1776 (1996) (quasi-judicial acts are reviewed by Section 1094.5 administrative mandate).
For a moment, Carl's smile reappeared when he found a section in the Coastal Act: "Any person may maintain an action for declaratory and equitable relief to restrain any violation of this division, of a cease and desist order issued pursuant to Section 30809 or 30810, or of a restoration order issued pursuant to Section 30811. On a prima facie showing of a violation of this division, preliminary equitable relief shall be issued to restrain any further violation of this division." Section 30803(a).
Further research, however, again dashed Carl's idea. He discovered that seven years after the Legislature enacted Section 30803, the Court of Appeal reiterated the vitality of Veta, stating, "The law is well established that an action for declaratory relief is not appropriate to review an administrative decision. Veta specifically held: '[I]nsofar as the fourth cause of action seeks to challenge the application of the [Coastal Act] to [the developer Veta], the Commission is correct that Veta is essentially seeking to review the validity of an administrative action and, as discussed above, such review is properly brought under the provisions of section 1094.5 of the Code of Civil Procedure rather than by means of declaratory relief.' A declaratory relief action is an appropriate remedy only if the party is seeking a declaration that a statute controlling development of coastal lands is actually unconstitutional." Walter H. Leimert Co. v. California Coastal Comm'n, 149 Cal.App.3d 222 (1983).
Carl had no plans to challenge the constitutionality of the Coastal Act or any of its provisions. He merely wished to allege that the act has been unconstitutionally applied to his clients' property. "Thus, declaratory relief does not lie." Walter H. Leimert Co.
Carl was a bit confused by the phrase "violation of this division" as used in Section 30803(a). As he read the cases, however, he realized that the phrase refers to violations of the Coastal Act's permit requirements or violations of permits themselves. See, for example, Ojavan Investors Inc. v. California Coastal Comm'n, 54 Cal.App.4th 373 (1997).
For this reason, Section 30803(a) does not mention actions against the Coastal Commission as does Section 30801. Thus, Section 30803(a) embodies the equitable enforcement tool that the Coastal Commission (and conceivably other parties, such as environmental organizations or homeowners associations) uses against landowners who fail to obtain a permit before developing within the coastal zone or who obtain a permit but violate the permit's conditions.
"Under [Section 30803 of] the Public Resources Code, the Commission may bring actions in the Superior Court for injunctive and declaratory relief ... for violations of the permit requirements of the Coastal Act." California Coastal Comm'n v. Tahmassebi, 69 Cal.App.4th 255 (1998).
Carl's research established that a writ of administrative mandamus under Code of Civil Procedure Section 1094.5 is the exclusive remedy for judicial review of Coastal Commission quasi-judicial decisions. Indeed, not only could he not plead for declaratory relief, Carl understood that the commission's decision could not be reviewed under the guise of a claim for injunctive relief. See, for example, City of Santee v. Superior Court, 228 Cal.App.3d 713 (1991).
Carl stood and stretched like a drowsy cat. He looked out the window of his office, which, on this unusually clear day, offered him a glimpse of the glittering blue Pacific Ocean. Although legal precedent thwarted his claim for declaratory relief, he knew that he also was avoiding the inevitable demurrer that would be filed in response to an invalid claim.
In the end, if the case did not settle, the judge eventually would decide his clients' claims after reviewing a full administrative record.
Daniel A. Olivas is a deputy attorney general in the land law section of the California Department of Justice in Los Angeles. His first short fiction collection, "Assumption and Other Stories," will be published by Arizona State University's Bilingual Press in Spring 2003.
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