McAllister v.County of Monterey et al.  (January 31, 2007, H028813) __ Cal.App.4^th__

By Lori Wider

Introduction

This case involved a challenge by the plaintiff McAllister to approval of a coastal development permit issued to his neighbors ("Real Parties") for a single family residence on the Big Sur coast.  The primary issues addressed by the court were McAllister’s arguments that (1) the County of Monterey’s ("County") approval of the permit was null and void since a prior owner’s violation of conditions of a previously issued development permit for the same property constituted a violation of the County Code and, therefore, divested the County of jurisdiction to approve the permit; and (2) the County violated CEQA by failing to prepare an EIR rather than a mitigated negative declaration in connection with the permit.

The appellate court rejected both arguments.  As to the jurisdictional argument, the court determined that violation of a prior permit that had since expired did not constitute a present violation of the County’s Code.  As to the alleged CEQA violation, the court held that since there was an appeal of the County’s coastal development permit decision under the California Coastal Act, the County’s decisions were "intermediate" and superseded by the Coastal Commission’s de novo review process on appeal, which also served as the "functional equivalent" of CEQA.  Therefore, the County’s CEQA determination was no longer subject to judicial review.

Background

In 1977, a development permit (the "1977 Permit") for the property owned by Real Parties was issued to a prior owner by the Coastal Commission.  The prior owner had commenced work under the 1977 Permit without complying with a permit condition requiring merger of two parcels comprising the project site.  The project ultimately was abandoned before its completion.  Real Parties did not rely on the 1977 Permit or seek to amend it, but rather sought and received approval from the County for a new permit for the proposed residence.

Real Parties’ permit application, along with a parcel merger and a mitigated negative declaration, was approved by the County Planning Commission.  McAllister’s appeal of this decision to the Board of Supervisors was denied.  McAllister thereafter appealed the County’s decision to the Coastal Commission, and at the same time commenced the litigation.  McAllister challenged the County’s action but also sought injunctive relief to prevent the Coastal Commission from asserting jurisdiction on the basis that the County’s action was null and void.

After de novo review of the appeal, the Coastal Commission denied the appeal and granted the coastal development permit to Real Parties.

The trial court, among other decisions, sustained a Coastal Commission demurrer without leave to amend, and ordered dismissal of the action with prejudice against the Coastal Commission.

County and Coastal Commission Jurisdiction

The County’s Local Coastal Plan ("LCP") is codified in the County Code.  The Code provides that a permit issued in violation of "the provisions of this title" is null and void.  The Code also prohibits the issuance of permits for property where there is an outstanding violation of the Code or the County Coastal Implementation Plan (which is part of the LCP), unless the permit is sought to correct or remedy the violation.

After certifying the LCP as in conformance with the California Coastal Act, the Coastal Commission had jurisdiction to hear administrative appeals of the County’s approval of coastal development permits. Therefore, the Coastal Commission asserted jurisdiction over McAllister’s appeal.  After a de novo hearing, the Commission denied the appeal.

In addressing whether McAllister had stated facts sufficient to support a cause of action on the jurisdictional argument, the court first made clear that McAllister’s claim that the County’s action was null and void did not excuse the exhaustion requirement.  In order to maintain the action in court, McAllister was required to exhaust his administrative remedies by appealing the County decision on these grounds to the Coastal Commission. The court found that the Commission had the authority to review and make a determination on the nullity claim.

Next the court determined that there was no record of a violation of the provisions of the County Code, even if there was a violation of the 1977 Permit.  The court rejected as a "bare legal conclusion" unsupported by the necessary facts McAllister’s argument that a violation of the 1977 Permit constituted a violation of the County Code.   This violation was decades old, in connection with a permit issued prior to the Coastal Commission certification of the LCP.  The Coastal Commission staff report discussed the fact that work done in violation of permit conditions could not be used to assert that a permit was exercised.  For this reason, since the 1977 Permit was never extended, the Coastal Commission determined that the 1977 Permit "appears to have expired in 1979."

CEQA Claim

McAllister, citing Save San Francisco Bay Assn. v. San Francisco Bay Conservation etc. Com. (1992) 10 Cal.App.4^th 908, argued that the County’s alleged failure to comply with CEQA could be challenged by administrative mandate because CEQA mandates that the lead agency (in this case, the County) conduct a thorough environmental review even though another agency with jurisdiction over specific resources may later undertake additional review.  However, the court distinguished this case, on two bases: (1) the County’s CEQA determinations were not final and, therefore, no longer subject to judicial review; and (2) the agencies involved in the Save San Francisco Bay case conducted the environmental review "under different statutory schemes, each with a slightly different focus, rather than engaging in sequential review in a vertical process under CEQA."  The reviewing agencies in the Save San Francisco Bay case included, among others, the Bay Conservation and Development Commission ("BCDC").  In other words, review by BCDC proceeded under the McAteer-Petris Act (Government Code § 66600 et seq.) and did not involve a direct appeal to BCDC of any decision of the City and County of San Francisco pertaining to the project at issue.  The court contrasted this with the Coastal Commission’s de novo review of McAllister’s appeal of the County’s decision under the California Coastal Act, noting that the review "is a substitute for an environmental impact report" (citing Public Resources Code § 21080.5(a); CEQA Guidelines §§ 15002(l), 15251(c) and (f) regarding certified regulatory plan in lieu of EIR) and operates as the "functional equivalent of" the EIR process (citing Kaczorowski v. Mendocino County Bd. of Supervisors (2001) Cal.App.4^th 564,569).

The court rejected McAllister’s arguments, and concluded that the County Board of Supervisors’ actions were not final and were merely "intermediate determinations."  Since judicial review under administrative mandamus may be sought only from a final administrative decision, McAllister’s challenge to the County’s action was precluded.  The final decision was the decision made by the Coastal Commission.  McAllister was time-barred from joining the Coastal Commission on his CEQA claims.

For more information please contact Lori Wider.  Lori Wider is special counsel in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco Office.