PENAAT v. CALIFORNIA COASTAL COMMISSION NORTH COAST REGION

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Court of Appeal, First District, Division 2, California.

Elizabeth Ann PENAAT, Plaintiff, Cross-Defendant and Appellant, v. CALIFORNIA COASTAL COMMISSION, NORTH COAST REGION, and Richard G. Rayburn, Defendants, Cross-Complainants and Respondents.

Civ. 46760.

Decided: September 25, 1979

William H. Penaat, San Carlos, for Elizabeth Penaat. George Deukmejian, Atty. Gen., R. H. Connett, Asst. Atty. Gen., Roderick Walston, Gregory K. Wilkinson, Deputy Attys. Gen., San Francisco, for California Coastal Com'n and Richard Rayburn.

Appellant Penaat owns property within the California Coastal Zone on which there were a well and a septic tank with leach field in poor condition.   A new well, watertank, septic tank and leach field were installed in place of the old facilities.   On June 20, 1977, appellant filed an application with the North Coastal Regional Coastal Commission (hereafter Regional Commission) seeking a waiver of the permit requirements of the Coastal Act of 1976 (Pub. Resources Code, § 30000, et seq.).

Before the Regional Commission's August 1977 meeting, its staff prepared a report on the development for that meeting.   The staff report recommended that appellant should be granted a coastal development permit with the condition that she use certain water conservation devices and that she offer to dedicate a 25-foot-wide path for public access and viewing of the shore.   Also before the Regional Commission's August meeting, the Regional Commission staff explained to appellant's agent that they did not think appellant was entitled to a waiver since State Coastal Commission Regulations expressly required a coastal development permit for the enlargement and construction of wells and septic systems.

At the Regional Commission's August 18, 1977, hearing, the commission attempted to consider appellant's application as an application for a permit.   Appellant's agent complained that the application was for a waiver of permit, and because he did not wish the application to be heard as a permit application, it was withdrawn.

Appellant filed a complaint for declaratory relief against the commission and its executive director, which sought an injunction that would restrain respondents from taking any legal action regarding appellant's development work.   After various amendments and demurrers to the amendments, the matter was tried on two issues:  1) whether or not appellant was denied due process of law because of the failure of the executive director to grant a hearing on her application for waiver of a permit, and 2) whether or not a writ of mandate should issue directing the executive director to conduct a hearing on appellant's request for waiver of a permit.

On December 4, 1978, the trial court ruled, after a hearing, that the commission's executive director did not abuse his discretion nor deny appellant due process of law when he denied appellant's requested waiver of the permit requirements of the Coastal Act.   The trial judge also ruled that a permit is required for the development performed by appellant, and that judicial review is available to appellant in the event she is dissatisfied with the action of the Regional Commission and State Commission on the permit application that she is required to submit.   Accordingly, the court entered judgment which (1) denied the peremptory writ of mandate;  (2) granted injunctive relief requested by respondents' cross-complaint which required appellant to seek a coastal development permit;  and (3) expressly preserved to appellant any rights to judicial review of the Regional and State Commission action on her permit application.   Following an unsuccessful effort to seek a new trial, appellant filed the present appeal.

Appellant contends on appeal that the trial court erred in refusing to issue a writ of mandamus ordering a hearing on her application for waiver of permit requirements, and that this refusal constitutes a deprivation of property without due process of law.   Appellant further contends that the trial court erred in issuing a mandatory injunction requested by respondent Regional Commission which requires appellant to file an application for a coastal permit.

This court believes that two issues raised on appeal in this case are decisive and dispositive of all other issues.   These are first, whether appellant failed to exhaust her administrative remedies;  and second, whether the trial court validly required appellant to submit an application for a coastal development permit.

I. Failure to Exhaust Administrative Remedies.

After being informed by the Executive Director of the Regional Commission that a coastal development permit would be required for the reconstruction of her well and septic tank, appellant withdrew her application for waiver of permit and petitioned the superior court to compel the Regional Commission to provide her with a trial-type hearing involving witnesses, evidence and legal argument to consider her application as a waiver of a development permit, and not as a permit itself.   We believe the trial court correctly denied the petition for a peremptory writ of mandate.

 The general rule in California is that an action that is the proper subject of administrative decision is not ripe for standing before a superior court until the party seeking relief has exhausted available administrative remedies (see Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 109 P.2d 942).   The California Coastal Act of 1976 has promulgated regulations and procedures for review, decision, and appeal of applications for coastal development permits by the regional commissions.

More specifically, Title 14 of the California Administrative Code delegates broad powers to the executive director to implement the provisions of the Coastal Act of 1976.   Among these powers is the director's prerogative to order a developer to submit an application for a permit (see Cal.Admin.Code, tit. 14,1 § 13032, Duties and Delegation;  § 13173, Enforcement of the Coastal Act;  § 13174, Lawsuits by Regional Commission).   Once a permit is required, (§ 13052), notice of public hearing must be sent by the commission (§ 13054).   Public comments on applications are invited (§ 13060), hearing dates are set, and notices of the date are given (§§ 13062, 13063).   Procedures for oral hearings before the regional commissions exist, which include rules governing the conduct of the hearing (§ 13064), evidence rules (§ 13065), the order of proceedings (§ 13066), the conduct of speakers' presentations (§ 13067), and voting procedures (§§ 13090–13096).

An applicant whose application for a permit has been denied or who challenges conditions imposed on a permit issued by a regional commission may appeal to the State Commission before the end of the tenth working day following the vote on the application by a regional commission (§ 13111).   The filing of an appeal with the State Commission shall suspend the operation and effect of the regional commission's order or permit until final action on the appeal by the State Commission (§ 13115).   Detailed procedures govern the filing of appeals and appellate procedure (§ 13118, a description of the appeal form;  § 13119, notice to interested parties;  § 13120, filing of appeal).   If the State Commission declines to hear an appeal pursuant to these regulations, the action of the regional commission shall become final (§ 13123).

 These elaborate regulations and procedures for permit applications, decisions, and appeal to the State Commission were enacted to facilitate the implementation of the California Coastal Act of 1976, and were not enacted for the purpose of being ignored and circumvented by premature redress to superior courts.   If the appellant to the State Commission is dissatisfied with the conditions imposed by the regional commission for the granting of a permit, the appellant has full rights to contest the State Commission's decision in a superior court, and thereafter appeal the superior court's decision in the Court of Appeal.

The principle that administrative remedies must be exhausted before a party will have standing to sue before a superior court is well recognized by the California Supreme Court and Court of Appeal.   In Abelleira v. District Court of Appeal, supra, 17 Cal.2d 280, 109 P.2d 942, the California Supreme Court held that when “an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.”  (P. 292, 109 P.2d at 949.)   This principle has been repeatedly followed in California (see Metcalf v. County of Los Angeles (1944) 24 Cal.2d 267, 148 P.2d 645).

 In the instant case, after being notified by the Regional Commission's Executive Director that the State Commission Regulations require a permit for construction of wells and septic tanks, appellant failed to submit a permit application to the Regional Commission, but instead filed a complaint for declaratory relief against the Regional Commission and its Executive Director in order to prevent the commission from taking legal action against appellant for her development work.   According to the rule set forth in Abelleira, supra, appellant has intentionally avoided the entire administrative process which exists specifically for the purpose of reconciling such problems as appellant sought determination in the superior court.   This intentional circumvention of the administrative process is proscribed by Abelleira, supra.   See South Coast Regional Com. v. Gordon (1977) 18 Cal.3d 832, 135 Cal.Rptr. 781, 558 P.2d 867 and Frisco Land & Mining Co. v. State of California (1977) 74 Cal.App.3d 736, 141 Cal.Rptr. 820 for specific application of the doctrine of exhaustion of administrative remedies both of which support this conclusion.

 In the case at bench, appellant contends on appeal that the trial court's refusal to issue a writ of mandamus ordering a hearing on her application for waiver of permit requirements constitutes a deprivation of property without due process of law by the trial court and the Regional Commission.   This contention is without merit.   The Supreme Court has recently stated in Horn v. County of Ventura (1979) 24 Cal.3d 605, 156 Cal.Rptr. 718, 596 P.2d 1134, as follows:  “We emphasize, however, that constitutional notice and hearing requirements are triggered only by governmental action which results in ‘significant’ or ‘substantial’ deprivations of property, not by agency decisions having only a de minimis effect on land.”  (P. 616, 156 Cal.Rptr. p. 723–724, 596 P.2d p. 1139–1140.)   The executive director's decision in the instant case that the appellant was required to obtain a permit and would not be granted a waiver had no substantial impact on appellant's property.

Appellant contends that Union Oil Co. v. South Coast Regional Com. (1979) 92 Cal.App.3d 327, 154 Cal.Rptr. 550 is applicable to the case at hand.   In that case the Union Oil Company sought a determination from the regional commission that the work it proposed on a dock was a “repair” and thus no permit was necessary.   After the commission determined that the project was not a repair, Union Oil filed a petition for a writ of mandamus requesting that the trial court compel the commission to find that the proposed work constituted a repair and hence that no permit was necessary.   The trial court issued a writ of mandamus and the Court of Appeal affirmed the judgment.

Appellant's reliance on Union Oil, supra, in justifying her request for a writ of mandate to issue is without merit.   In the instant case, appellant's failure to exhaust her administrative remedies compel a finding that the trial court acted properly in denying her petition for writ of mandamus.   The fact that Union Oil circumvented the administrative remedies and procedures established by the Coastal Act of 1976 has no bearing on the instant case, because the regional commission in Union Oil, supra, did not raise as their defense the legal doctrine of exhaustion of administrative remedies.   That case was decided entirely on the substantive legal aspects of plaintiff's contentions, and thus its failure to address the question of exhaustion of administrative remedies renders that holding of no precedential applicability to the case at hand.

Because we believe that respondents' argument is well taken that appellant failed to exhaust her administrative remedies, and that she has no standing to petition the superior court to compel the Regional Commission to waive her permit requirements, it will not be necessary to address appellant's substantive arguments raised on this point.

II. Trial Court's Issuance of a Writ of Mandamus.

Appellant's second contention on appeal is that it was reversible error for the trial court to act upon respondents' cross-complaint and issue a mandatory injunction which compels the appellant to submit an application for a development permit to the Regional Commission.   Appellant argues that as a matter of substantive law, there were no grounds for the issuance of the injunction, and that because there were no grounds, the court had no jurisdiction to issue the injunction.   We disagree.

 The trial court had jurisdiction and authority to issue an injunction compelling appellant to submit an application for a development permit for two reasons.   First, despite the fact that appellant had no standing to petition the superior court for a writ of mandamus because she failed to exhaust her administrative remedies, respondents' cross-complaint against appellant had independent standing.   The general rule is that involuntary dismissal of the plaintiff's action does not destroy the action on the cross-complaint (3 Witkin, Cal.Procedure, 2d ed., 1971), Pleading, § 991, p. 2572;  see Pacific Finance Corp. v. Superior Court (1933) 219 Cal. 179, 25 P.2d 983).

 Second, contrary to appellant's contention that there were no grounds on which to base the issuance of the injunction, Title 14 of the California Administrative Code expressly sets forth the legal grounds on which the regional commissions may bring lawsuits:  “Whenever, after investigation, the executive director of a regional commission determines that a violation of a permit, or any term, condition, or provision of a permit, has occurred or is threatened, or that development requiring a coastal development permit has occurred or is about to occur without a valid coastal development permit, the regional commission or its executive director may refer the matter to the Attorney General for appropriate legal action.   The Attorney General may, subject to the approval of the regional commission, file an action in the name of the regional commission for equitable relief to enjoin the violation or the development, or for civil penalties, or both, or may take other appropriate action pursuant to Chapter 9 of the California Coastal Act of 1976  ․ ․ ․”  (§ 13174).   Furthermore, the executive director was equipped with factual and specific legal grounds for requesting the petition of mandamus because of the fact that appellant in fact installed a new well and septic system;  and the construction of wells and septic systems requires a development permit pursuant to section 13250, subdivision (b)(3).   Thus, the trial court properly granted respondents' request for a mandatory injunction compelling appellant to submit an application for a development permit.

The trial court's decision denying appellant her requested relief and the trial court's issuance of a writ of mandate compelling appellant to submit an application for a development permit are affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise indicated, all further references will be made to title 14 of the California Administrative Code..  FN1. Unless otherwise indicated, all further references will be made to title 14 of the California Administrative Code.

CALHOUN, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

TAYLOR, P. J., and ROUSE, J., concur.

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