State of California

Memorandum

Department of Justice RONALD REAGAN BUILDING

300 SOUTH SPRING STREET, SUITE 1702LOS ANGELES, CA 90013

To: Supervising AttorneyOffice of the Attorney GeneralPublic Rights DivisionLand Law section

Telephone: CALNET ( 8 )

FACSIMILE:E-Mail: tracie.groh@doj.ca.gov

From: Tracie GrohLand Law SectionOffice of the Attorney General - Los Angeles

Subject :

Carbon Canyon

FACTS

In the California Coastal Zone of the Santa Monica Mountains lies a 17-acre property that

has been designated as ESHA in Carbon Canyon. Activist Group, (“Activist Group”) an

unincorporated association, alleges that when the State Agency (“the State Agency”) approved

a permit application for development on this property it violated various requirements of the

California Coastal Act and the California Environmental Quality Act. (“CEQA”) The hearing

for the permit application was held in Monterey, California on May 9, 2003. Members of

Activist Group wrote a letter of opposition on the project, which was faxed to the State Agency

office in Ventura, California on May 8, 2003. In addition, a member of Activist Group claims

to have sent copies of the letter to the location of the hearing in Monterey, which were to arrive

the morning of the May 9, 2003, by overnight carrier. Activist Group alleges that State Agency

staff failed to notify the State Agency members about the opposition letter prior to the hearing

and the State Agency’s subsequent approval of the permit. As a result of the State Agency’s

approval and Activist Group’ belief that the opposition letter was not properly considered,

Petitioner filed for a writ of mandate alleging three different causes of action.

CAUSES OF ACTION

The first cause of action alleges a violation of the California Coastal Act, Public Resources

Code Section 30000 et. seq. (Pet., p. 7.) This action claims the State Agency violated statutes

requiring protection of views along the ocean areas and sites designated ESHA. (Ibid., pp. 7

and 8.) There is also mention of alternative uses of the site, with suggestions of turning the area

into a recreational park or nature preserve. (Id. at p. 8) Activist Group asks the court to issue a

writ of mandate vacating any and all approvals of the project. (Ibid.)

The second cause of action alleges a violation of CEQA, Public Resources Code Section

21000 et. seq. (Id. at p. 9.)This cause of action focuses on environmental review and once

again considers alternative measures. (Ibid.) Petitioner claims irreparable harm will be

suffered if the project is approved. (Id. at p. 10.) Petitioner alleges the State Agency is subject

to CEQA and has violated it. (Ibid.)

The third cause of action further alleges a violation of the California Coastal Act by failure

to follow mandatory notice and review requirements. (Ibid.) Activist Group purports that the

State Agency abused its discretion by not adhering to the statutory requirements of notice in the

Coastal Act. (Id. at pp. 10 and 11.) Petitioner maintains the State Agency failed to follow

allegedly mandatory requirements of notice and failed to obtain a Los Angeles County

Environmental Review Board approval for the project. (Id. at p. 11.)

DEMURRER

According to Section 12.8 in the California Administrative Mandamus, you may not use

something from the administrative record for a demurrer in a writ of mandate case. A court

may only consider the contents of the petition and such additional matters as the court may

judicially notice when ruling on a demurrer. (Ibid.) The only situation, in which the court may

consider the administrative record, even if the record has been filed with the court, is if it was

expressly incorporated by reference in the petition. (Ibid.) The section cites to case law in

support and the following cases are attached to this memo for your reference: Stanton v.

Dumke (1966) Cal.2d 199 and Kleiner v. Garrison (1947) 82 Cal.App.2d 442. The petition

does not appear to expressly incorporate any of the administrative record, therefore, we may not

reference to it in our demurrer.

Additionally, we will not be able to demur to the first cause of action. Sufficient facts are alleged to

support a legal claim in the petition. “In ruling on the sufficiency of the petition for mandate as against a

demurrer, the court will assume to be true all material and issuable facts properly pleaded.” Stanton v.

Dumke Cal.2d 199 at 201. Because Activist Group has properly pleaded material facts the court must

assume they are true and allow the claim to go forward. However, we will be able to demur to the

second cause of action. Here the petitioner has referenced CEQA and a myriad of violations the State

Agency has allegedly committed. Activist Group is apparently unaware that California Public Resources

Code section 21174 (CEQA) clearly states “no provision of this division is a limitation or restriction on

the power or authority” of the State Agency. The section goes further to say “to the extent of any

inconsistency or conflict between the provision of the California Coastal Act of 1976 (Division 20

(commencing with Section 30000)) and the provisions of this division, the provisions of Division 20

(commencing with Section 30000) shall control.” Therefore, CEQA requirements are not applicable to the

State Agency, and there can not be any violations as such by the State Agency. Consequently, Petitioner’s

second cause of action fails to state a cause of action under California Civil Procedure Code section

430.10 (e), and as a result, we can successfully demur to it.

Moreover, we will also be able to demur to the third cause of action. In section 13106 of Title 14 in

the California Code of Regulations “any person who did not have an opportunity to fully participate in the

original permit proceeding by reason of . . . failure to provide adequate public notice . . . may request

revocation of a permit by application to the executive director of the State Agency, specifying, with

particularity, the grounds for revocation.” This is an administrative remedy of which Activist Group has

not sought, although their petition alleges notice was insufficient. Section 3.21 of the California

Administrative Mandamus states that “an agency decision that is subject to further administrative review is

not regarded as final within the meaning of CCP § 1094.5(a).” Under the Code of Civil Procedure,

section 1094.5(a), only a final agency decision may be reviewed by mandamus. Board of Med. Quality

Assur. v. Superior Court (1977) 73 Cal.App.3d 860. So, until Activist Group has requested a revocation

of the permit issued under section 13106 of Title 14 which is then denied, Activist Group has failed to

exhaust available administrative remedies. (However, this section does not provide any sort of time limit

regarding how long someone has to request a revocation.)

Finally, we may be able to demur, as to the entire petition, on the grounds that Activist Group lacks

standing to bring the action at all. There is a three part test to determine whether or not an unincorporated

association has standing to bring a suit, in which all prongs must be satisfied in order for the association to

sue. (Brotherhood of Teamsters and Auto Truck Drivers v. Unemployment Insurance Appeals Board

(1987) 190 Cal.App. 3d 1515, 1522.) This case mandates that an association can obtain standing if: 1) its

members would otherwise have standing to sue in their own right; 2) the interests it seeks to protect are

germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires

the participation of the individual members in the lawsuit. (Ibid.) Because Activist Group has not

exhausted their administrative remedies, as discussed above, they fail the first element of obtaining

standing. Additionally, because Activist Group has not alleged an organizational purpose, they also fail

the second element of obtaining standing. The third element is also unsatisfied because Activist Group

has not alleged that its participation in this action will eliminate any need of its individual members to

participate. Accordingly, Activist Group does not have standing to bring this action.

ISSUES ON THE MERITS

I. Preservation of Issues

The California Administrative Mandamus section 3.3, prohibits a litigant from raising arguments in an

administrative mandamus proceeding that were not presented in the first instance to the administrative

agency or hearing officer. Specifically the section requires a party at an administrative hearing to “raise all

issues that he or she will want to have judicially reviewed if an adverse decision is rendered.” (Ibid.)

Applied to the facts in this case, Activist Group failed to raise several issues in their letter to the State

Agency which were subsequently raised in their petition to the court. First, is the issue of notice in their

third cause of action. In the petition Activist Group alleges the property owner and State Agency failed to

follow several notice requirements. However, in the letter to the State Agency, not only does Activist

Group fail to raise any problems with the issue of notice, but it actually references the notice the members

received several times. It hardly seems logical that they received enough notice to build arguments based

on the information in the notice for a letter to the State Agency, yet, in the petition, the notice was not

sufficient.

Second, several times in the petition Activist Group allege that the coastal sage scrub and chaparral

habitat on the project site is ESHA. ESHA is never mentioned in their letter to the State Agency, much

less any specific reference to plant life at risk. In the fourth bulleted paragraph Petitioners claim to be

concerned about the effect of the grading required. They ask “How many trees will be felled? . . . Will

the current rough country be turned into lawns?” This is the closest their letter ever gets to raising the

issue of the effect of the development on the plant life.

II. Notice

Section 13054 of Title 14 in the California Code of Regulations addresses notice

requirements as they relate to the applicant’s duties. An applicant is to provide the State

Agency with a list of the addresses of all residences located within one hundred feet (not

including roads) of the perimeter of the parcel of real property on which the development is

proposed. (Id. at (a).) Additionally, the applicant must provide the names and addresses of

other interested persons known to the applicant, including those who testified at or submitted

written comments for the local hearing. (Ibid.) Therefore, if Activist Group is neither within

the one hundred foot perimeter, nor among anyone who testified at a local hearing, it appears

they were not entitled to this type of formal and personal notice. Because Activist Group fails

to include any individual members as parties to this action, this significantly impacts their

argument of insufficient notice in relation to whether or not notice was due to the association

itself.

The section also provides that the applicant is to post, at a conspicuous place, where it can

be easily read by the public and as close to the site of the proposed development as possible,

notice that an application for a permit has been submitted to the State Agency. (Id. at (d).) The

notice should have a general description of the nature of the proposed development and the

State Agency should provide the applicant with a standard form to be used for these purposes.

(Ibid.) Further, the applicant must sign the declaration of posting or the executive director

“shall refuse” to file the application. (Ibid.) The State Agency is required to revoke a permit if

it determines that the permit was granted without proper notice. (Id. at (e).)

There are two pages in the administrative record which indicate a list of names and

addresses were received by the State Agency from the applicant, however, there is no copy of

list to reference. In volumes one and six there are forms in which someone has indicated the

applicant did provide this information, however on a subsequent form the information is not

present. Page three in volume one shows the list as checked off a series of items to be gathered

in order for a complete application, however the table in which the list is presumably to be

located on page 13 is blank. Again, in volume six on page 321 a document from the State

Agency itself indicates the list was received by the State Agency on July 29, 2002. However,

nowhere else in the administrative record is the actual list found. Again, assuming that notice

was not required for Activist Group itself, this argument may be irrelevant.

Additionally, section 13063, subdivision (a) of Title 14 in the California Code of Regulations requires

the executive director to mail written notice to, among others, all persons specified in the applicant’s

mailing list ten days prior to the application hearing. The notice is required to contain all of the following:

(1) The application’s assigned number, (2) The proposed location and a description of the development,

(3) The date, time and place of the application hearing, (4) The general procedure for hearings and action

on applications, (5) That if a person wishes to testify, his or her testimony should be related to the issues

covered in the Coastal Act and (6) A statement regarding the procedure for issuing staff reports. (Ibid.) I

was unable to find any reference to such notice in the administrative record.

III. Timing of Opposition

In section 13060 of Title 14 in the California Code of Regulations guidelines for written

communications regarding applications are stated. Subdivision (b) requires any written communication to

be received by the executive director in the appropriate district office prior to the day of the hearing or in

the hearing room on the day of the public hearing. (Ibid.) So, perhaps in theory, if Activist Group didn’t

send their letter to the appropriate district office prior to the day of the hearing, then it wasn’t timely.

However, the statute is extremely vague regarding when the written communication is due in the hearing

room on the day of the public hearing. This likely allows plenty of wiggle room for the Activist Group,

especially if they have evidence the material was supposed to arrive by overnight carrier by 10:30 a.m. the

day of the hearing.

IV. Interpretive Guidelines

Interpretive guidelines appear to carry some weight in court, however, it has been established that they

are not binding authority. Yamaha Corporation of America v. State Board of Equalization (1998) 19

Cal.4th 1. (This case is also attached to this memo.) The court does allow for administrative

interpretations to “constitute a body of experience and informed judgment to which courts and litigants

may properly resort for guidance.” (Id. at p. 14.) But, the court goes on to find that “the binding power of

an agency’s interpretation of a statute or regulation is contextual.” (Id. at p. 7.)

So, while Activist Group may attempt to refer to the State Agency’s interpretive guidelines as hard

and fast rules, the court is not bound to follow them and may consider the factual context at issue in

determining how much deference such guidelines are due. (Id. at 14.)

V. General Observations Re: the Letter and Administrative Record

Although Activist Group has yet to appeal their case to the State Agency itself and exhaust their

administrative remedies, thereby making this petition ripe for judicial review, there are still a few things I

wanted to note for you generally. Beginning with their letter to the State Agency in their first attempt to

object to the project, first, in the initial paragraph of the members’ letter they say that their lack of prompt

action on this matter was due to their own personal and professional matters. (I don’t refer to them as

Petitioners because they are not listed as such on the caption page of Activist Group’ complaint.) This

indicates an admission by the members that they did not act in a timely manner. Second, there is some

sort of reference to the view in every bulleted paragraph of their arguments. The first bulleted paragraph:

“. . . this is an absolutely natural, pristine piece of property.” The second bulleted paragraph: “. . . it will

turn what is now a wholly natural perspective toward the ocean into just another residential development.”

The third bulleted paragraph: “Obviously, this would be huge house that would dominate the vista . . . an

enormous man made mansion would be the first thing one would see from just about any perspective.”

The fourth bulleted paragraph: “We cannot even begin to visualize the devastating effect this scale of

grading would have on what is now a beautiful, wholly natural environment.” And, the fifth bulleted

paragraph: “. . . the developer has opted to build on what is by far the most intrusive spot on the

property.” Then, in closing, after admitting they are concerned about the view lines from their property,

they claim that the previous points show there is more to their concern than just the view. It seems that a

closer examination of those previous points shows there isn’t much more to their concern. In the five

bulleted arguments there are only two references to the actual wildlife itself, and one reference to trees.

This letter looks to be little more than a poorly disguised and poorly planned attempt to save the member’s

view. Only in the petition is any specific information offered regarding the environmental issues.

(Paragraph 32.)

Regarding the petition, the bulk of it centers around the State Agency allegedly not making the proper

considerations in its approval of the permit. Paragraph 34 insinuates the permit was approved merely to

avoid a possible takings claim. However, an examination of the administrative record shows there are

simply no logical grounds for such claims. Page 250 of the administrative record addresses the ESHA

issues requiring the permit applicant to provide mitigation for the impacts to the local wildlife, coastal

sage scrub and chaparral. Page 261 of the administrative record illustrates that while the State Agency is

required to consider a takings issue, it must be balanced together with the policies of the Coastal Act.

Additionally, Section E of the administrative record gets to the heart of what Activist Group is

unhappy about -- the impact of the development on the view. Here the record explains that while the

project site is located within a scenic viewshed area, any alternative location for the project would “require

greater vegetation disturbance and landform alteration.” (AR at p. 266.) Therefore, it appears that in

order to protect the local plant and wild life the State Agency sacrificed the Petitioner’s view as a

necessary mitigation measure. (AR at p. 267.) Activist Group’ petition lectures on the preservation of the

natural beauty of the site, yet attacks the State Agency for the actions it takes to preserve that very beauty.

The State Agency even took measures to mitigate the impact on the view, requiring certain colors and

glass to be used in the construction of the residence. (Ibid.) Ultimately, the State Agency found that “the

project, as conditioned, will not result in a significant adverse impact to scenic public views or character

of the surrounding area.” (Ibid.)

Regarding Petitioner’s claims of other alternative uses for the property, the State Agency found the

“other allowable uses for the subject site, such as a recreational park or a nature preserve, are not feasible

and would not provide the owner an economic return on the investment.” (AR at 260.) And while Activist

Group claims the project could be sited at another location on the property, the administrative records

show that “the building pad location is the most feasible location for the proposed residence in order to

minimize landform alteration and habitat disturbance.” (AR at p. 259.)

In sum, an examination of the administrative record, coupled with closer reviews of both the letter and

the petition from Activist Group, reveals a case factually and argumentatively weak.