TRANSAMERICA REALTY SERVICES INC v. CALIFORNIA COASTAL COMMISSION

Reset A A Font size: Print

Court of Appeal, Second District, Division 1, California.

TRANSAMERICA REALTY SERVICES, INC., Plaintiff and Respondent, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

No. B078071.

Decided: March 31, 1994

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Jan S. Stevens, Asst. Atty. Gen., Jamee Jordan Patterson and Joseph J. Barbieri, Deputy Attys. Gen., for defendant and appellant. Nossaman, Guthner, Knox & Elliott, Alvin S. Kaufer and Howard D. Coleman, Los Angeles, for plaintiff and respondent.

INTRODUCTION

Appellant California Coastal Commission appeals from a judgment granting a peremptory writ of mandate to respondent Transamerica Realty Services, Inc.

STATEMENT OF FACTS

Respondent owns an 18.33 acre parcel of land in an area known as the Portuguese Bend Club, which is located between the Pacific Ocean and Palos Verdes Drive South in the City of Rancho Palos Verdes (City).   In 1991, respondent applied to the City for a coastal development permit so it could develop the property.1  After public hearings before the City Planning Commission and City Council, the City on May 19, 1992 approved the proposed development subject to certain conditions.

On May 26, 1992, the City delivered to appellant notice of its approval of respondent's coastal development permit.   The notice stated, in pertinent part:  “This decision may be appealed in writing to the California Coastal Commission within 10 working days upon the receipt of the City notice in the Coastal Commission Office”;  section 30603, subdivision (c), provides an action taken by a local government on a coastal development permit application becomes final after the 10th working day, unless an appeal is filed with appellant within that time.   On May 29, appellant notified the City that the notice was deficient, in that it contained no or an inadequate project description, no conditions of approval and written findings, and no procedures for appeal;  the City's LCP requires this information in the notice.

On June 5, Gar Goodson, chairman of Save Our Coastline 2000, filed a notice of appeal from the City's permit decision with appellant.   On June 10, the City filed with appellant a complete notice of final local action.   Under appellant's regulations (Cal.Code Regs., tit. 14, § 13111, subdivision (b)), an appeal is allowed if received in appellant's office within 10 working days after receipt of the notice by appellant.   Appellant therefore treated the notice of appeal as having been filed on June 10 and timely.   It heard the appeal and, on February 18, 1993, approved the coastal development permit, with conditions.

Respondent then filed the instant action, seeking a writ of mandate ordering appellant to vacate the permit and dismiss the appeal.   It claimed the appeal was not timely filed, therefore appellant was without jurisdiction to hear it, and two of the special conditions imposed in the permit were unconstitutional.   The trial court agreed “the permit was considered and approved in excess of the Commission's jurisdiction” and ordered appellant to vacate the permit and to dismiss the appeal for lack of subject matter jurisdiction.

CONTENTIONS

I

Appellant contends its regulations are consistent with the statutes governing administrative appeals under the Coastal Act.

II

Appellant further contends the City's LCP specifies that a notice of final action must be sent to appellant.

III

Appellant asserts the rights of third parties to appeal final actions to appellant would be prejudiced by the trial court's interpretation of the governing statutes.

IV

Finally, appellant asserts elimination of the requirement of notice of final action is unreasonable and unworkable.

DISCUSSION

I

Appellant contends its regulations are consistent with the statutes governing administrative appeals under the Coastal Act.   We disagree.

At issue here are one of appellant's regulations and a Public Resources Code section governing appeals of actions taken by local governments on coastal development permit applications.  Public Resources Code section 30603, subdivision (c) (section 30603(c)), provides that “an action taken by a local government on a coastal development permit application” (id., subd. (a)) “shall become final after the 10th working day, unless an appeal is filed within that time.”   Appellant's regulation, found in California Code of Regulations, title 14, section 13111, subdivision (b) (section 13111(b)), provides the “appeal of a local government's decision on a coastal development permit application” (id., subd. (a)) “must be received in the Commission district office with jurisdiction over the local government on or before the tenth (10th) working day after receipt of the notice of the permit decision by the executive director.”

Appellant in essence claims section 30603(c) must be interpreted to require that finality be measured from the time notice of an action by a local government is given, rather than from the time the action is taken.   If so interpreted, section 13111(b), which measures finality from the time of receipt of notice, is consistent with section 30603(c).   The trial court implicitly found the two sections to be inconsistent and section 30603(c) to prevail and provide that an action by a local government will become final within 10 working days after the action is taken unless an appeal is filed within that time.   Of course, the interpretation of statutes is a matter of law, and this court is not bound by the trial court's interpretation of the sections.  (Cf. Estate of Dodge (1971) 6 Cal.3d 311, 318, 98 Cal.Rptr. 801, 491 P.2d 385.)

In support of its claim appellant points to the goal of maximum public participation and adequate public notice embodied in the Coastal Act.   Section 30006 sets forth a legislative declaration of the public's “right to fully participate in decisions affecting coastal planning, conservation, and development.”   Section 30009 requires that the Coastal Act “be liberally construed to accomplish its purposes and objectives.”

The Coastal Act provides that once a local government has adopted an LCP, it takes over from appellant the authority to issue coastal development permits.   (§§ 30500, 30600, subd. (d).)  However, actions taken by the local government on coastal development permit applications may be appealed to appellant in the case of certain types of developments.  (§ 30603, subd. (a).)  The appeal may be taken by the applicant, two members of the Commission, or an aggrieved person—one who has appeared at the public hearings held by the local government or otherwise informed the local government of his or her concerns.   (§§ 30625, subd. (a), 30801.)

Appellant was required to “adopt public notice and appeal procedures for review of development projects appealable pursuant to Section[ ] 30603.”  (§ 30620.6.)   It did so, and those procedures are set forth in sections 13110–13120 of title 14 of the California Code of Regulations.   Appellant's regulations provide “[t]he ten working day appeal period shall be established from the date of receipt of notice of the final local government action.”   (Id., § 13110;  accord, id., § 13111(b).)   These regulations, according to appellant, protect the public's “right to fully participate in decisions affecting coastal planning, conservation and development” (§ 30006).

Against the foregoing backdrop, appellant asserts Ciani v. San Diego Trust & Savings Bank (1991) 233 Cal.App.3d 1604, 285 Cal.Rptr. 699 supports its position that section 30603(c) must be interpreted to provide the 10 working day appeals period starts to run upon receipt of notice of final local government action, not when the action is taken.   In Ciani, a trust sought to demolish structures it owned in La Jolla.   Because the site was within the California coastal zone, it was required to obtain a coastal development permit for the demolition from the local government, the City of San Diego;  the trust applied to the city for a permit.  (At pp. 1608–1609, 285 Cal.Rptr. 699.)

When the city failed to take adequate action on the trust's permit application, the trust attempted to invoke the provisions of the Permit Streamlining Act (Gov.Code, § 65921 et seq.), which provides automatic approval of permit applications where no action is taken thereon by the responsible agency within a specified period of time.  (Ciani v. San Diego Trust & Savings Bank, supra, 233 Cal.App.3d at p. 1609, 285 Cal.Rptr. 699.)   It was conceded the trust's coastal development permit application was covered by the Permit Streamlining Act.  (Ibid.)  The trust filed an action for mandate and declaratory relief to have the permit application deemed approved and the permit issued.   Pursuant to an agreement between the trust and the city, the permit was issued, and the trust immediately began demolition.   Appellant then sought a temporary restraining order and preliminary and permanent injunctions against the issuance of the permit and demolition of the structures, claiming that under the Coastal Act, the permit could not become effective until the 10 working day appeal period had expired.   The trial court issued a temporary restraining order, but following a hearing it ruled appellant was not entitled to relief and denied an injunction.  (Id. at p. 1610, 285 Cal.Rptr. 699.)

On appeal, the court noted:  “Public Resources Code section 30603 provides that an appeal from the action of a local agency approving a development permit may be filed with the Coastal Commission.   The effectiveness of the permit is delayed for a period of 10 days to permit the filing of such appeal, and further delayed until the appeal, if filed, is concluded.”  (Ciani v. San Diego Trust & Savings Bank, supra, 233 Cal.App.3d at pp. 1612–1613, 285 Cal.Rptr. 699.)   Since appellant filed an appeal, under section 30603 the permit would not have been effective until the appeal was resolved.  (Id. at p. 1613, 285 Cal.Rptr. 699.)

The trust claimed section 30603 did not apply to permits deemed approved under the Permit Streamlining Act.  (Ciani v. San Diego Trust & Savings Bank, supra, 233 Cal.App.3d at p. 1613, 285 Cal.Rptr. 699.)   However, the court disagreed.   It held a permit deemed approved under the Permit Streamlining Act was the legal equivalent of a permit issued by a local government.  (Id. at pp. 1613–1614, 285 Cal.Rptr. 699.)   If there was a right to appeal a permit issued by a local government, it also was necessary that there be a right to appeal a permit deemed approved.   Otherwise, the local government could by its inaction deprive interested parties of all opportunity to object to the permit.   The court could not believe this was the intent of the Permit Streamlining Act.  (Id. at p. 1615, 285 Cal.Rptr. 699.)

The trust then argued the appeal was untimely, in that it was filed more than 10 working days after the permit was deemed approved.  (Ciani v. San Diego Trust & Savings Bank, supra, 233 Cal.App.3d at pp. 1615–1616, 285 Cal.Rptr. 699.)   The court observed that the Permit Streamlining Act did not by its terms apply to appeals to a state agency.   After its adoption, appellant's “regulations governing appeals of coastal development permits were amended to take into consideration the possibility of appeals from ‘deemed approved’ permits.  California Code of Regulations, title 14, section 13571, subdivision (b) requires the applicant to ‘notify, in writing, the local government and the Commission of his or her claim that the development has been approved by operation of law.’   While this regulation does not specifically state that the appeal period commences upon the giving of this notice, such is the only reasonable interpretation to be given to it.  California Code of Regulations, title 14, section 13570 provides that a local permit is not deemed complete until all rights of appeal have been exhausted.  California Code of Regulations, title 14, section 13571, subdivision (b)(2) states that an application approved by operation of law ‘may be appealed to the Commission pursuant to Section 13110 et seq.’   Additionally, California Code of Regulations, title 14, section 13110 states that the ‘ten working day appeal period shall be established from the date of receipt of the notice of the final local government action.’ ”

“The Trust urge[ed the court] to find that these regulations are invalid as being inconsistent with the statute (citing the principle that administrative regulations which are contrary to legislative acts are null and void ․).  As [the court had] previously noted, however, since [it found] nothing in the Streamlining Act indicative of an intention to preclude appeals, administrative regulations addressing the subject of such appeals are consistent with the Act.”  (Ciani v. San Diego Trust & Savings Bank, supra, 233 Cal.App.3d at p. 1616, 285 Cal.Rptr. 699, citation omitted.)

The court also concluded that “[a] practical approach to the concept of appealing a ‘deemed approved’ permit also supports the conclusion that notice to the Coastal Commission is necessary to commence the 10–day appeals period.   When a local coastal agency has granted a permit it can be expected that it will comply with the notice provisions of section 13110 of title 14 of the California Code of Regulations and that the Coastal Commission and others interested in opposing the issuance of the permit will receive notice and have an opportunity to file a timely appeal.   Where the permit is granted under the terms of the Streamlining Act, however, unless either the local agency or the applicant gives notice of the passage of the requisite time period, the commission (as well as opposing parties) will have no practical means of knowing the date of the permit issued by operation of law.”  (Ciani v. San Diego Trust & Savings Bank, supra, 233 Cal.App.3d at p. 1617, 285 Cal.Rptr. 699.)   The court thus held appellant's appeal was timely.  (Id. at p. 1621, 285 Cal.Rptr. 699.)

The Ciani court did, as appellant claims, uphold appellant's regulations regarding appeals.   It concluded the regulations provide that the appeals period begins to run when notice is given to appellant and, as a practical matter in the case of deemed approved permit appeals, this is necessary to protect the appeal rights of interested parties.   However, the Ciani court did not, as appellant argues, uphold the regulations “against a nearly identical challenge.”   In Ciani, it was claimed the regulations conflicted with the Permit Streamlining Act.   The court held that since the Permit Streamlining Act did not apply to appeals of deemed approved permits to appellant, there could be no conflict between the Act and the regulations.   (Ciani v. San Diego Trust & Savings Bank, supra, 233 Cal.App.3d at p. 1616, 285 Cal.Rptr. 699.)   In the instant case, however, the claimed conflict is between the Coastal Act—which applies to appeals from approvals of permits and authorizes regulations to set forth procedures to handle them—and the regulations.  Ciani did not recognize or address this claimed conflict.

 Appellant also relies on the principle that an administrative agency's interpretation of its governing laws through its implementing regulations is entitled to great weight in determining legislative intent when interpreting statutes.  (Coronado Yacht Club v. California Coastal Com. (1993) 13 Cal.App.4th 860, 868, 17 Cal.Rptr.2d 10.)   Statutes are to be interpreted in such a manner as to effectuate the intent of the Legislature in enacting them.  (Landrum v. Superior Court (1981) 30 Cal.3d 1, 12, 177 Cal.Rptr. 325, 634 P.2d 352;  Coronado Yacht Club, supra, at p. 868, fn. 2, 17 Cal.Rptr.2d 10.)   Deference is given to the interpretation of legislative intent by the administrative agency charged by the Legislature with enforcement and interpretation of a statute.  (REA Enterprises v. California Coastal Zone Conservation Com. (1975) 52 Cal.App.3d 596, 611, 125 Cal.Rptr. 201.)

 However, administrative agencies are authorized only to adopt regulations which are consistent with their authorizing statute.   (Morris v. Williams (1967) 67 Cal.2d 733, 748, 63 Cal.Rptr. 689, 433 P.2d 697.)   Administrative regulations which alter or amend their authorizing statute or enlarge or impair its scope are void and must be struck down.   (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1389, 241 Cal.Rptr. 67, 743 P.2d 1323.)   An administrative agency has no authority to expand a limitation period set by the Legislature.  (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 387, 216 Cal.Rptr. 733, 703 P.2d 73.)   In reviewing administrative regulations and their authorizing statute, “the courts are the ultimate arbiters of the construction of a statute,” not the administrative agency.  (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 11, 270 Cal.Rptr. 796, 793 P.2d 2.)

 As general rules of statutory interpretation, in determining legislative intent “a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.   A construction making some words surplusage is to be avoided.   The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.  [Citations.]  Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.   [Citation.]”  (Dyna–Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at pp. 1386–1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)   Statutes should be given “a reasonable and commonsense interpretation consistent with the apparent legislative purpose and intent ‘and which, when applied, will result in wise policy rather than mischief or absurdity.’  [Citation.]”  (Id. at p. 1392, 241 Cal.Rptr. 67, 743 P.2d 1323.)

Appellant claims the trial court's interpretation of section 30603(c) to provide that the 10 working day appeal period begins to run when action is taken rather than when notice of the action is provided violates the foregoing rules of statutory interpretation, in that it renders section 30620.6 superfluous and leads to absurd consequences (Dyna–Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at pp. 1386–1387, 1392, 241 Cal.Rptr. 67, 743 P.2d 1323).   It argues that “[i]f the Legislature intended to preclude the Commission from requiring notice of final action, the mandate to adopt regulations providing for public notice of matters appealable pursuant to section 30603 was meaningless.”   However, the trial court did not interpret section 30603(c) to preclude appellant from requiring notice of final action;  it merely interpreted section 30603(c) to require appeals to be filed within 10 working days after the final action.   Appellant may require notice of the final action;  it just may not expand the appeal period to 10 working days after receipt of notice.   Thus, section 30620.6, requiring appellant to adopt public notice and appeal procedures to govern appeals under section 30603 is not rendered superfluous by the trial court's interpretation of section 30603(c).

Appellant further argues that by “focusing on the language of Section 30603 exclusively and not requiring notice be given to the Commission, there is a grave risk that the 10th working day will pass before the Commission even learns of local government's action.   This would utterly defeat the Legislature's mandate that the Commission oversee local government action in the appeal areas as well as conflict directly with the Coastal Act goal of providing maximum public participation.   To avoid this absurd result, some notice requirement is necessary.”

As previously stated, in interpreting statutes the court “must look first to the words of the statute themselves, giving to the language its usual, ordinary import.”  (Dyna–Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at pp. 1386–1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)   The court's duty is “to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted.”  (Code Civ.Proc., § 1858.)   The language of section 30603(c) states that an “action ․ shall become final after the 10th working day, unless an appeal is filed within that time.”   It contains no reference to notice, and to interpret it as allowing the appeal period to begin after notice is given would be to “insert what has been omitted.”  (Code Civ.Proc., § 1858.)

 Respondent suggests the Legislature's omission was intentional, designed to accord finality to local government action once an LCP is certified and authority to issue coastal development permits is transferred to the local government.   Section 30602 provides:  “Prior to certification of its local coastal program, any action taken by a local government on a coastal development permit application may be appealed by the executive director of the commission, any person, including the applicant, or any two members of the commission to the commission.   Such action shall become final after the 20th working day after receipt of the notice required by subdivision (c) of Section 30620.5, unless an appeal is filed within that time.”  (Emphasis added.)   Clearly, the Legislature knew how to condition finality on receipt of notice.   That it did so in section 30602 and did not use similar language to do so in section 30603 suggests it did not intend to do so in the latter section.   Where the Legislature uses different language in similar statutory provisions, it is presumed it did so advertently and had a different legislative intent with regard to each provision.  (Craven v. Crout (1985) 163 Cal.App.3d 779, 783, 209 Cal.Rptr. 649.) 2

Additionally, appellant in fact has the power to ensure that appropriate notice of final action is given which affords it and other interested parties the opportunity to appeal.   As previously mentioned, section 30620.6 authorizes appellant to “adopt public notice and appeal procedures” for review of appealable developments.   Appellant has adopted such procedures.   Its regulations provide “minimum standards of notice and hearing requirements for local governments ․ after certification of a local coastal program.”   (Cal.Code Regs., tit. 14, § 13560.)

Moreover, if a local government's notice and hearing procedures substantially comply with appellant's regulations, they “may be reviewed and certified by the Commission as part of the local coastal program.”  (Cal.Code Regs., tit. 14, § 13563.)   In the instant case, for example, the City's LCP requires that applicants, appellant, nearby property owners and others who have expressed an interest be notified of public hearings on appealable development proposals.   (Rancho Palos Verdes Mun.Code, § 17.67.040, subd. B.)   It also provides that “[w]ithin seven (7) calendar days of a final decision on an application for any coastal development, the City shall provide notice of its action by first class mail to the Coastal Commission and to any persons who specifically requested notice of such final action․”  (Id., subd. E.)   Thus, notice is provided for, within the 10 working day appeal period.

 Based on the foregoing discussion, we must conclude the trial court was correct in its interpretation of section 30603(c).   The section by its terms provides the 10 working day period in which to file an appeal begins to run at the time the local government action is taken, not at the time appellant receives notice of the action.   Therefore, section 13111(b) is void to the extent it allows appeals to be filed after that period by allowing them to be filed within 10 days of receipt of notice of the local government's action by appellant's executive director.   Hence, the trial court properly ordered appellant to vacate the permit and to dismiss the appeal for lack of subject matter jurisdiction, inasmuch as the appeal was filed more than 10 days after the City's final action in approving respondent's coastal development permit.

II

Appellant further contends the City's LCP specifies that a notice of final action must be sent to appellant.   It is true, as stated above, that the City's LCP requires it to provide appellant with notice of final action.   But since the running of the appeal period is not conditioned on receipt of notice, this fact does not require reversal of the judgment.

III

Appellant asserts the rights of third parties to appeal final actions to appellant would be prejudiced by the trial court's interpretation of the governing statutes.   As discussed above, appellant has the power to ensure that appropriate notice of final action is given which affords it and other interested parties the opportunity to appeal.   Pursuant to section 30620.6, it was authorized to “adopt public notice and appeal procedures” which protect the rights of third parties to appeal final actions, and it did so (Cal.Code Regs., tit. 14, § 13560 et seq.).   Additionally, it can certify such procedures as part of LCPs in order to protect such rights (id., § 13563), as is the case with the City's LCP.   Accordingly, the trial court's interpretation of section 30603(c) need not prejudice the rights of third parties to appeal to appellant final actions by local governments.

IV

Finally, appellant asserts elimination of the requirement of notice of final action is unreasonable and unworkable.   The trial court did not eliminate the requirement of notice of final action;  it simply interpreted section 30603(c) to require that an appeal be filed within 10 working days of a final action taken by a local government.   Its ruling allows a notice requirement but does not allow the appeal period to run from the date of notice in contravention of section 30603(c).

The judgment is affirmed.

FOOTNOTES

1.   The California Coastal Act (Coastal Act) (Pub.Resources Code, § 30000 et seq. [unless otherwise specified, all section references are to the Public Resources Code] ) gives a local government the authority to issue coastal development permits once the local government has adopted a local coastal program (LCP) (§§ 30500, 30600, subd. (d)), which the City has done.   However, certain actions taken by the local government on a coastal development permit application may be appealed to appellant, including—as is the case here—approval of a development between the ocean and the first public road paralleling the ocean.  (§ 30603, subd. (a)(1).)

2.   The Legislature also conditioned finality on receipt of notice in section 30717, which provides that “approval of the appealable development by the port governing body pursuant to a certified port master plan shall become effective after the 10th working day after notification of its approval, unless an appeal is filed with the commission within that time.”   Again, this shows the Legislature knew how to carry out an intent to condition finality on receipt of notice.

SPENCER, Presiding Justice.

ORTEGA, J., concurs. MIRIAM A. VOGEL, J., concurs in the disposition only.