ANDREWS v. CALIFORNIA COASTAL COMMISSION

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

Ralph ANDREWS, Petitioner and Appellant, v. CALIFORNIA COASTAL COMMISSION, Michael Fischer, as Executive Director of the California Coastal Commission, Respondent.

Civ. 65504.

Decided: February 15, 1983

Alan Robert Block, Los Angeles, for petitioner and appellant. George Deukmejian, John K. Van de Kamp, Attys. Gen., N. Gregory Taylor, Asst. Atty. Gen., Peter H. Kaufman, Deputy Atty. Gen., for respondent.

This appeal arises from the denial of a petition for administrative mandamus.   The questions presented are:

(1) Did the California Coastal Commission err in counting an abstaining member for purposes of determining the number of votes needed for a majority, and (2) if such error occurred, what is the appropriate remedy?

Appellant Ralph Andrews owns real property in the County of Ventura.   The property is located within the coastal zone regulated by the Coastal Commission under California's Coastal Act of 1976 (Pub.Resources Code, § 30000 et seq.)   In an effort to subdivide his property for development, appellant submitted an application for a permit to the South Coast Regional Commission.   This application was approved subject to certain conditions.

The decision of the regional commission was appealed to the respondent California Coastal Commission, where it was reversed and appellant's application was denied.

Appellant filed a new application with the regional commission in the following year.   It was again approved subject to conditions.

The regional commission's decision was again appealed to the respondent by three persons whose identity and interest in the matter is not disclosed by the record.1  Prior to hearing the appeal, respondent held a hearing and took a vote on the question of whether the proposed development involved a statewide substantial issue.2

During the “substantial issue” hearing nine commissioners were present.   After completion of a portion of the proceedings, a tenth commissioner entered the room.   He apparently had not heard the discussion and was unfamiliar with the matter.

When the vote was taken five commissioners voted in favor of the motion for finding no substantial issue, and four voted against.   The commissioner who had not participated in the proceedings abstained.   The chairman determined that a majority of the ten commissioners present during the vote, or six, were necessary and, therefore, the motion failed.

As a consequence of the failure of the motion, the commission determined that a de novo hearing on the merits of petitioner's application was required.   Before the de novo hearing was held, appellant filed the instant petition for administrative mandamus, to compel respondent commission to vacate its determination that there was a substantial issue and to find that there was no substantial issue.   The petition was denied by the trial court and this appeal followed.

 Appellant contends that the abstaining member should not have been counted as present for purposes of determining the number needed for a majority since he had not heard the discussion and was not eligible to vote.   Following this reasoning, appellant argues the vote should have been interpreted as a vote of five out of nine commissioners voting that there was no substantial issue.   This being a majority vote, the commission would then not hear the appeal and the decision of the regional commission would become final.   We agree.

Public Resources Code section 30315 (as amended in 1980) provides in part:  “Any action taken by the commission ․ under this division requires a majority vote of the members present at the meeting of the commission ․”

14 California Administrative Code section 13022, a regulation adopted by the commission, provides:  “Except as otherwise required by the California Coastal Act of 1976 or in these regulations, actions of the commission shall be by vote of a majority of commissioners physically present within the meeting room at the time of the vote.”

The primary issue raised by the instant appeal is the construction of the term “present” as used in the statute and as purportedly construed by the regulation.   Stated another way, the issue is whether the tenth commissioner could properly be considered as present, because he was physically present in the meeting room at the time of the vote even though he had been absent during the hearing of the matter and was unprepared to vote.

 Respondent relied on its regulation 14 California Administrative Code section 13022 as literally meaning that the number necessary for a majority is to be determined by the number of commissioners present in the room at the time of the vote regardless of their eligibility to vote.   Such a construction of the statute, in our opinion, is totally unreasonable.

Here the tenth commissioner was not eligible to vote on the substantial issue question.  14 California Administrative Code section 13095 provides:  “A member ․ may vote on any application, provided he or she has familiarized himself or herself with the presentation at the hearing where the application was considered, and with pertinent materials relating to the application submitted to the commission and has so declared prior to the vote.   In the absence of a challenge raised by an interested party, inadvertent failure to make such a declaration prior to the vote shall not invalidate the vote of a member, or his or her alternate.”

The record reveals that the tenth commissioner had not made any effort to familiarize himself with the presentation or with pertinent materials, nor did he make any declaration to that effect.   The failure to make such a declaration does not appear to have been inadvertent since the tenth commissioner readily agreed that he would not vote on the substantial issue question, and a challenge to his participation was raised by appellant at the hearing.

Since the tenth commissioner was not eligible to vote on the issue, his mere physical presence in the room at the time a vote was taken should not have been considered for any purpose.   The commission, in effect, wrongly counted his presence as a negative vote.

To the extent that 14 California Administrative Code section 13022 was intended to be construed as it was by respondent, it is inconsistent with Public Resources Code section 30315 as amended in 1980.  Section 30315 formerly provided that a “majority of the total appointed membership of the commission ․ shall be necessary to approve any action required or permitted under this division.”   The constitutionality of that requirement was upheld in Stanson v. San Diego Coast Regional Com. (1980) 101 Cal.App.3d 38, 161 Cal.Rptr. 392.   However, that section was later amended to provide that “Any action taken by the commission ․ under this division requires a majority vote of the members present at the meeting of the commission․”  (Pub.Resources Code, § 30315;  emphasis added.)

This amendment on its face exhibits an intention by the Legislature to require that the number of votes needed for a majority be determined by the number of commissioners who actually attend and participate in the meeting.   The obvious purpose of the amendment was to ensure that absent commissioners not be counted for any purpose.   The policy behind the statute would seem to be that only those members who appear and are eligible to vote on an issue ought to be counted for purposes of determining the number needed for a majority.

In adopting 14 California Administrative Code section 13022, the commission added the language “physically present within the meeting room at the time of the vote.”  (Emphasis added.)   This additional language changed the requirement that commissioners to be counted need be present at the meeting before they vote.   That change produced the anomalous result in the case at bench, by permitting a commissioner, who had not been present at the entire meeting and had not been eligible to vote, to be counted for purposes of determining a majority.   Such a result was clearly not sanctioned by section 30315 as amended.

 Interpretative rules, as distinguished from statute, are not binding on the courts;  a court always has power to substitute its judgment for that of the agency in interpreting a statute.  (Davis, Administrative Law Treatise (2d ed. 1979) vol. 2, § 7.13, p. 59.)

“The law is embodied in the statute, and the court is free to interpret the statute as it sees fit.”  (Davis, Administrative Law Treatise (1958) vol. 1, § 5.05, p. 315.)   Further, Public Resources Code section 30333 provides that rules and regulations adopted by the commission “shall be consistent with this division and other applicable law.”

 Since we have concluded that the respondent abused its discretion in its interpretation of Public Resources Code section 30315 and in its promulgation of 14 California Administrative Code section 13022, the question of an appropriate remedy must be addressed.   Appellant argues that the respondent ought to be directed to vacate its decision that a majority vote on the “no substantial issue” question was not achieved.   Respondent argues that the appropriate remedy would be to remand the matter to respondent and thus permit the holding of a new hearing under our interpretation of the statute.

There is no reason to require further proceedings in the case at bench.   The hearing was held and the vote taken.   The correct and legal effect of the vote was that a majority of the commission, eligible to vote, decided that no substantial statewide issue was presented.   The action of the regional commission thus became final.

 Finally respondent seeks to avoid the effect of its own action by contending that appellant in these proceedings failed to join indispensable parties—those indispensable parties being the three persons who instituted the appeal to the respondent commission of the regional commission's decision.   According to respondent the failure to join these persons deprives the courts of jurisdiction to review the case by way of mandamus.

Public Resources Code section 30801 defines an “aggrieved person” who may appeal to the commission from a decision of a regional commission or who may seek judicial review of any decision of the commission as “any person who, in person or through a representative, appeared at a public hearing of the commission, regional commission, local government, or port governing body in connection with the decision or action appealed, or who, by other appropriate means prior to a hearing, informed the commission, regional commission, local government, or port governing body of the nature of his concerns or who for good cause was unable to do either.  ‘Aggrieved person’ includes the applicant for a permit and, in the case of an approval of a local coastal program, the local government involved.”

On the other hand, Code of Civil Procedure section 389(a) provides:  “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction offer the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest․”

The three individuals referred to earlier were afforded an appeal to the respondent commission and we assume participated in the hearing before that body.   Beyond that we are not advised that they had any specific or personal interest in the matter.   Clearly the appellant has a right to judicial review of respondent's action.

There is no question that the trial court and this court had and have jurisdiction over the subject matter.   The failure to join the three individuals who claimed to be “aggrieved parties” does not affect that jurisdiction.  (Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 140 Cal.Rptr. 744.)

Beyond that, the definition of an “aggrieved” person as set forth in Public Resources Code section 30801 does not meet the definition of an indispensable party as defined by Code of Civil Procedure section 389(a).

In the case at bench a narrow legal issue was presented, i.e., the interpretation of the term “present” as used in Public Resources Code section 30315.   The Attorney General representing the respondent commission fully and competently represented the interest of the three individuals, which interest is apparently no different than the interest that any citizen in the State of California has in seeing that the commission lawfully and properly performs its function.

The joinder of these three “aggrieved” persons would have added nothing to the case.   On the other hand, their absence did not impair our ability to grant complete relief nor subject the appellant or respondent to a risk of incurring multiple or inconsistent obligations.

The judgment is reversed.   The trial court is directed to vacate its order denying the petition for administrative mandamus and enter a new order consistent with this opinion.

FOOTNOTES

1.   Public Resources Code section 30625 provides in part:  “(a) Except as otherwise specifically provided in subdivision (a) of Section 30602, any appealable action on a coastal development permit or claim of exemption for any development by a local government or a regional commission or port governing body may be appealed to the commission by an applicant, any aggrieved person except in the case of denials by a regional commission, or any two members of the commission.”

2.   Public Resources Code section 30625(b) provides:  “․ the commission shall hear an appeal unless it determines that the appeal raises no substantial issue ․”

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur. Hearing denied;  BIRD, C.J., BROUSSARD, and REYNOSO, JJ., dissenting.