ANTOINE v. CALIFORNIA COASTAL COMMISSION (1992)

Beachfront homeowners applied to the California Coastal Commission (Commission) for a coastal development permit to build a seawall in front of their homes.   Pursuant to the California Coastal Act (Pub. Resources Code, § 30000 et seq.¹ ) the Commission granted the permit on the condition, among others, that the homeowners grant public access along the top of the seawall.   The condition was based on the finding that the seawall may encroach on state tidelands.   The superior court granted a writ of mandate ordering the Commission to remove the condition, stating there was no substantial evidence to support the Commission's encroachment finding.   The superior court, however, refused to decide other matters raised by the homeowners in their writ petition.   The Commission appeals and the homeowners cross-appeal.

We hold that an applicant for a coastal development permit has the burden of proving that the project will be built entirely on the applicant's own land and that it will not have an adverse effect on neighboring property.   We reverse the judgment granting the writ of mandate with instructions to remand to the Commission for further proceedings.

FACTS

Sandyland Cove is a 38 unit private beachfront subdivision immediately west of the city of Carpinteria.   Since the 1930's the beach at Sandyland has suffered substantial erosion.   In 1958 Sandyland ² constructed a seawall replacing the most seaward portion of the sand dunes that then lined the beach.   After further erosion caused by the severe winter storms of the 1982–1983 storm season, Sandyland applied to the County of Santa Barbara (the County) for a conditional use permit to enlarge the existing seawall by adding 37,400 tons of rock.   The result would be a revetment that extends 12 to 16 feet seaward of the existing seawall.

In late summer of 1983 Sandyland applied to the County for an emergency permit to build the seawall while the application for the conditional use permit was under review.   The County granted the emergency permit subject to the condition, among others, that a regular permit be applied for within 60 days.   Construction began in October of 1983 and ended in January of 1984.

In December of 1983 the County's planning commission approved the conditional use permit subject to the condition that Sandyland offer to dedicate a lateral public access easement seaward of the toe of the seawall.   Sandyland appealed to the County's board of supervisors, who eliminated the condition.

In August of 1984, Sandyland applied to the County for a coastal development permit.   The application was approved with the notation that pursuant to the decision of the board of supervisors Sandyland was not required to provide lateral access.

The South Central Coast Watch, a private group, appealed the permit decision to the Coastal Commission contending that the seawall extends into the water during all but extremely low tidal periods and the public's right to walk along the beach has not been protected.   A separate appeal was filed by the chairman and vice-chairman of the Commission.  (§ 30625.)

The Commission had photographs showing the seawall awash in the tide.   A Commission staff analyst stated that the pictures were all taken after the winter storms, and that they accurately reflect conditions during most of the late fall, winter and spring.   Private citizens testified that the new seawall restricts use of the beach during high tides.   Plans prepared by Sandyland's engineers showed the new seawall extending 12 to 16 feet seaward of the existing seawall.

The Commission also had a study of beach erosion commissioned by the City of Carpinteria, the Bailard/Jenkins report.   The report was made in April of 1982, prior to the heavy winter storms of that year and the completion of the new seawall.   The report stated that the seawall built in 1958 was located inside the surf zone and was subject to breaking waves.

Sandyland pointed out that a State Lands Commission (SLC) mean high tide survey of 1964, plotted by its engineers on the seawall plans, showed the seawall to be constructed landward of the mean high tide line by 60 to 90 feet.   SLC, however, stated that the 1964 survey line was for administrative purposes only and did not mark the true mean high tide line.   A grant map from the SLC to the City of Carpinteria bears the notation that the survey was not intended to fix the true boundary line but was delineated for administrative purposes only until such time as the true boundary line is determined.   Sandyland's own engineer stated that the accuracy of the survey was unknown.

The Coastal Commission's staff recommended, among other things, that Sandyland be required to remove the new seawall to a location no further seaward than the toe of the seawall constructed in 1958.   The Commission received letters from Sandyland and its individual residents asking that this recommendation be rejected, and that public access not be required.

Sandyland submitted a letter from one of its homeowners stating that the new seawall was relocated landward from its originally planned location.   But the letter did not indicate how far landward the seawall was moved.   There was evidence that the seawall was relocated only in one spot and that was out of concern that construction had started even more seaward than the plans had provided for.

Sandyland also pointed to a statement contained in the County's negative environmental impact declaration that the new seawall encroaches two to five feet seaward of the old wall in some places and retreats landward of the old wall in a few places.   There is no showing in the record as to the basis for this apparent conflict with the Commission's reading of the plans.

After a hearing, the Commission found, among other matters, the new seawall encroached 12 to 16 feet seaward of the old wall, that the project will reduce and block existing lateral beach access, and that “the revetment may have been constructed at least partially on state tidelands.”   The Commission decided not to require the removal of the seawall, but to grant the application on conditions.

The conditions included a public accessway along the top of the seawall with a covenant requiring Sandyland to maintain a stairway and the surface of the seawall in a condition suitable for public use, and an offer to dedicate an easement for public access from the toe of the revetment seaward.

After the Commission denied reconsideration, Sandyland filed a petition in superior court seeking a writ of mandate directing the Commission to issue the permit without the public access requirements.   Sandyland included with the petition a complaint for declaratory relief and damages in inverse condemnation.   The inverse condemnation action was severed from the mandate and declaratory relief portions of the case.

The trial court reviewed the Commission's decision under the substantial evidence test.   The court stated that it was the Commission's position that the “walkway condition,” that is, the condition for a walkway on top of the breakwater, was defensible only if the seawall was located on state tidelands.   The court determined there was no substantial evidence to support such a finding.

The court issued a writ of mandate directing the Commission to set aside its decision, to reconsider the matter and to take any further actions as may be required by law.   The court declined to decide the legality of the lateral access easement extending seaward from the toe of the seawall or other issues raised by Sandyland.

Both the Commission and Sandyland appeal.   SLC has filed an amicus brief in support of the Commission, and the Pacific Legal Foundation (PLF) has filed an amicus brief in support of Sandyland.

DISCUSSION

ISTANDARD OF REVIEW IN THE TRIAL COURT

 First we must determine whether the trial court was correct in applying the substantial evidence test in its review of the Commission's decision, or whether the independent judgment test should apply.   The independent judgment test applies where the decision of the administrative agency affects or involves a “fundamental vested right;”  otherwise the trial court is limited to determining whether the administrative findings are supported by substantial evidence and whether the agency erred in its application of the law.  (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 395, 188 Cal.Rptr. 891, 657 P.2d 383;  Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242.)

 In Whaler's Village Club v. California Coastal Commission (1985) 173 Cal.App.3d 240, 251–254, 220 Cal.Rptr. 2, we held a property owner had no fundamental vested right to construct a revetment in the coastal zone without a permit, and thus the proper standard of review in the trial court was substantial evidence.   Other courts have agreed.  (See, e.g., Barrie v. Cal. Coastal Com. (1987) 196 Cal.App.3d 8, 14–16, 241 Cal.Rptr. 477;  Paoli v. Cal. Coastal Com. (1986) 178 Cal.App.3d 544, 550–551, 223 Cal.Rptr. 792.)

Sandyland and the PLF argue that such cases are no longer valid in light of the United States Supreme Court's decision in Nollan v. California Coastal Commission (1987) 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677).   There the Commission granted the Nollans a coastal development permit to build a larger house on their property on the condition that they allow the public a lateral access easement to pass between their seawall and the mean high tide line.   The Nollans challenged the imposition of the condition as an uncompensated taking.   The Commission defended the condition as a valid exercise of the police power.   It argued that there is a legitimate state interest in protecting the public's ability to see the beach, in assisting the public to overcome the psychological barrier to using the beach along a developed shoreline, and in preventing congestion on public beaches.

The court stated that if the Nollans' new house substantially impeded any of these purposes the Commission could deny their permit outright unless the denial would interfere so drastically with their use of their property as to constitute a taking.   The court reasoned that if the Commission could deny the permit outright, it could grant the permit on a condition designed to accomplish the same purpose as denial.   If, however, the condition substituted for the prohibition “utterly fails” to further the end advanced as justification for the prohibition, “the evident constitutional propriety disappears.”  (Nollan v. California Coastal Commission, supra, 483 U.S. 825, 837, 107 S.Ct. 3141, 3148.)

Sandyland relies in particular on the following passage from Nollan:  “As indicated earlier, our cases describe the condition for abridgment of property rights through the police power as a ‘substantial advanc[ing]’ of a legitimate state interest.   We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police-power objective.”  (Nollan v. California Coastal Commission, supra, 483 U.S. 825, 841, 107 S.Ct. 3141, 3151.)

But a statement that where a conveyance of property is required the court is inclined to be particularly careful that the state interest advanced is substantial, does not mean there is a fundamental vested right to complete a project free of access conditions.   To the contrary, the Nollan court stated that if the Commission had attached to the permit some condition that would have protected the public's ability to see the beach “the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere.”  (Nollan v. California Coastal Commission, supra, 483 U.S. 825, 836, 107 S.Ct. 3141, 3148.)

 As we read Nollan, there is no fundamental right to build a structure that detrimentally affects public access free of conditions designed to ameliorate the detrimental effect of the structure.   Thus we can find nothing in Nollan that would require the trial court to apply its independent judgment.

Nor is Sandyland aided by Surfside Colony Ltd. v. California Coastal Commission (1991) 226 Cal.App.3d 1260, 277 Cal.Rptr. 371.   There the Court of Appeal held there was no substantial evidence of a “solid connection” between the public burden created by coastal construction of a seawall and the necessity for a public easement;  the court expressly declined to decide whether the trial court used the wrong test in reviewing the Commission's decision.  (Id., at p. 1263, 277 Cal.Rptr. 371.)

 PLF suggests the independent judgment test should apply because judicial deference is made impossible due to the Commission's interest in the outcome in the case.   It argues that the Commission as an agent of the state has a pecuniary interest in getting prize beach land for free, and because the Commission is made up of political appointees, there may be political pressure on certain members to maximize the state's ownership of coastal property.

PLF relies on Ward v. Village of Monroeville (1972) 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 in support of its argument.   There, pursuant to state law, the mayor sat as judge in cases involving ordinance violations and certain traffic offenses.   Fines arising from the mayor's court provided a substantial income to the village.   The Supreme Court held that the mayor's executive responsibilities for village finances may make him partisan to maintain a high level of contribution from his court, and that this inconsistency with the mayor's judicial position “ ‘necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.’ ”  (Id., at p. 60, 93 S.Ct. at p. 83.)

In Ward the presumption of bias arose from the mayor's dual position as executive in charge of the village finances and judge with the power to levy fines benefiting the village treasury.   Here the Commission does not have a similar conflict;  it neither gains nor loses by its decisions.   Contrary to PLF's contention, the Commission has no power to grant or deny a permit in a manner that will take private property for public use without paying compensation.  (§ 30010.³ )  Unlike a mayor whose job it is to increase the city treasury, the Commission's task is to balance the need to protect the public beach against the homeowners' need to protect their homes.  (See §§ 30214, subd. (b), 30235 ⁴ ;  Barrie v. Cal. Coastal Com., supra, 196 Cal.App.3d 8, 21–22, 241 Cal.Rptr. 477.)   That Commission members are political appointees, does not mean they are so subject to political pressure that bias must be presumed.

II

BURDEN OF PROOF

 In deciding there was no substantial evidence to support a finding that the revetment was constructed at least partially on public land, the trial court apparently placed the burden of proof on the Commission.   We hold that this was error.

Although the Coastal Act does not expressly place the burden of proof on any party, the general rule applicable to land use permits is that the burden is on the applicant.  (See, e.g., Smith v. County of Los Angeles (1989) 211 Cal.App.3d 188, 203, 259 Cal.Rptr. 231 [conditional use permit];  Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 521, 113 Cal.Rptr. 836, 522 P.2d 12 [variance].)   We see no reason why coastal development permits should be an exception.

Moreover, the Coastal Act provides that where there is a conflict in carrying out the provisions of the Act, the conflict should be resolved in a manner which on balance is most protective of significant coastal resources.  (§ 30007.5.⁵ )  Placing the burden of proof on the applicant for a development permit is one way of striking the balance in favor of protecting coastal resources.  (See Reed v. California Coastal Zone Conservation Comm'n. (1975) 55 Cal.App.3d 889, 895, 127 Cal.Rptr. 786.)

There is no injustice in placing the burden of proof on Sandyland.   Sandyland is the primary, if not the exclusive, beneficiary of the seawall project.   The burden of proof with its attendant costs should fall on the party reaping the benefits.   It is not too much to ask of an applicant for a development permit to show that the project is or will be built entirely on the applicant's own land, and that it will not have an adverse effect on neighboring properties.

PLF's citation to Surfside Colony, Ltd. v. California Coastal Commission, supra, 226 Cal.App.3d 1260, 277 Cal.Rptr. 371, is unavailing.   There the appellate court discussed what type of evidence was necessary to establish a burden on public access when building a seawall.   The court rejected the use of opinion evidence about beach erosion in general.  (Id. at p. 1271, 277 Cal.Rptr. 371.)

The Surfside court did not discuss which party had the burden of proof, and the court never held the Commission had the burden.   Even if the court in Surfside in fact placed the burden of proof on the Commission, the case would not be authority on the question of burden of proof;  a case is not authority for propositions not considered.  (Wasson v. Atlantic National Ins. Co. (1962) 207 Cal.App.2d 464, 471, 24 Cal.Rptr. 665.)   In any event, to the extent Surfside can be read as holding the burden is on the Commission to prove that the seawall was built on public property or otherwise burdens public access, we decline to follow it.

III

SUBSTANTIAL EVIDENCE

 The Commission's finding that the seawall may have been built partially on public property is simply another way of stating that Sandyland did not carry its burden of proving the seawall was built entirely on its own land.   Under the substantial evidence rule all evidence most favorable to the Commission's finding must be accepted as true, and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact.  (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 872, 274 Cal.Rptr. 168.)

 Here there was no evidence that would compel the Commission to find as a matter of law the revetment was built entirely on private property.

The only survey favorable to Sandyland purporting to show the mean high tide line was the SLC survey of 1964.   But the makers of the survey never intended that it serve as an accurate description of the mean high tide line, and a grant map of the area so notes.   Even Sandyland's own engineer said that the accuracy of the survey is unknown.   That SLC stated the survey line was created for administrative purposes does not mean the Commission is bound by it in an administrative hearing.   There is nothing in the record that leads to the conclusion the SLC intended that the line establish a boundary binding on the Commission or anyone else.

Nor is there merit to Sandyland's argument that the Commission mischaracterizes the toe of revetment as being 12 to 16 feet seaward of the old revetment.   The Commission's finding was based on a reading of the plans prepared by Sandyland's engineers.   Sandyland, however, points to a statement in the County's negative environmental impact declaration that the new wall extends two to five feet seaward of the old wall in some places and retreats landward of the old wall in a few places.   It argues the County's staff was in a position to see and compare the old and new wall, whereas the Commission could not because the old wall had been covered during construction.

Simply because the County's staff was in a position to inspect the old and new seawalls does not mean that it actually saw the two walls, or if it did that it made an accurate comparison.   Sandyland points to nothing in the record that discloses any foundation for the County's finding.   It may well have been based on a misreading of the plans.   A homeowner's letter to the Commission stating that the seawall had been relocated landward does not conclusively support the County's finding.   There was evidence the seawall was moved only in one spot out of concern that construction had started even more seaward than the plans called for.

The Commission as a finder of fact could reasonably determine that Sandyland had not carried its burden of proof.

IV

MEAN HIGH TIDE LINE

 Having decided Sandyland has the burden of proof, we think it only fair to give Sandyland the opportunity to present further evidence to the Commission.   This necessarily involves the question of how to determine the mean high tide line.   This is the line that divides public from private property.   We hope the following discussion will give the parties some guidance in resolving this question.

 The mean high tide line is formed where a plane of water at mean high tide intersects the shore.  (People v. William Kent Estate Co. (1966) 242 Cal.App.2d 156, 160, 51 Cal.Rptr. 215.)   It is composed of a vertical and a horizontal element.   The vertical element is the elevation of water as measured at stations near the shore at mean high tide.   Once this is established it remains fixed.   The horizontal element is the place where the water meets the shore.   This can vary with changes in the slope and contour of the beach.

(a) Vertical Element

 The elevation of the water near the shore is influenced principally by the sun and moon's gravitational force.   During the new moon, the sun and moon are on the same side of the earth, tidal forces work in conjunction and high water rises higher and low water falls lower than at other times.   These tides are called “spring tides.”   Seven and a half days later the moon has passed through the first quarter of its journey around the earth and is said to be in “quadrature.”   The sun and moon are at right angles to the earth, their gravitational forces are not working in conjunction and the tides do not rise as high or fall as low as the spring tides.   These are called “neap tides.”   (See 1 Shalowitz, Shore and Sea Boundaries (1962) U.S. Dept. of Commerce Publication 10–1, pp. 86–87.)

Seven and a half days later the moon is on the opposite side of the earth from the sun, gravitational forces are once again working in conjunction and spring tides recur.   In another seven and a half days the moon is in its final quadrature, and neap tides reappear.  (See 1 Shalowitz, supra, at pp. 86–87.)

Due to a variety of factors, including periodic changes in the distance and declination of the moon, water levels at high tides are not consistent from month to month.   Thus a permanent and fixed mean is found by recording the high tides during a 19–year period known as a “tidal epoch.”  (See 1 Shalowitz, supra, at p. 89, fn. 16.)   The recording is done at off-shore stations.

An early California Supreme Court case, Teschemacher v. Thompson (1861) 18 Cal. 11, 21, described the mean high tide as the average of all high neap tides.   The court arrived at this esoteric pronouncement of what it thought the common law to be by relying on the wisdom of venerable authority, Lord Chief Justice Hale's De Jure Maris, written in the middle of the 17th century.   Venerable authority is not always the best guide.

As amicus SLC points out, Lord Hale did not use the precise definition of the term “neap tides,” but instead used the term to mean usual high tides.  (See 1 Shalowitz, supra, at p. 92.)

The United States Supreme Court in Borax Consolidated v. City of Los Angeles (1935) 296 U.S. 10, 26–27, 56 S.Ct. 23, 31, 80 L.Ed. 9, determined that for purposes of the federal government the mean high tide is the average of all high tides, not only high neap tides.   California Supreme Court cases decided after Borax do not mention neap tides with reference to the mean high tide.  (See, e.g., City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 478, fn. 13, 91 Cal.Rptr. 23, 476 P.2d 423.)   Although the Court of Appeal in People v. William Kent Estate Co., supra, 242 Cal.App.2d 156, 161, 51 Cal.Rptr. 215, used the average of all high neap tides as the standard, we conclude that today the rule in California is the same as the federal rule.   The mean high tide is the average of all high tides.

(b) Horizontal Element

Where the beach is made of rock or is not subject to wind and wave action the plane of water at mean high tide will consistently intersect with the shore at the same place.   Under such circumstances, it is possible to determine a fixed mean high tide line.

But where the beach is composed of soft sand and is subject to wave action, the slope and contour of the beach change constantly.   With each change in the slope or contour of the beach, the place where the plane of water at mean high tide intersects the beach, that is, the mean high tide line, also changes.   The result is a continually changing boundary between public and private land.   Given the definition of mean high tide line and the physical characteristics of soft sand beaches, this is the nature of boundary lines on ocean front property.

Sandyland contends that a fixed mean high tide line should be determined by the method suggested in People v. William Kent Estate Co., supra, 242 Cal.App.2d 156, 161, 51 Cal.Rptr. 215.   There the beach was subject to a cyclical movement of sand which increased the land area in summer and decreased it in winter.   The state obtained an injunction against a private landowner forbidding him from interfering with the public's use of land seaward of the high water mark as the mark may migrate landward and seaward from time to time.   The Court of Appeal found that it would be too uncertain to enforce an injunction with a migrating line.   The appellate court suggested the parties determine on retrial whether the sand movements were substantially the same distance each year.   This could afford them a basis for determining an average place where the plane of water at mean high tide intersected the shore.

The SLC criticizes William Kent Estate on the grounds that the time and expense involved in finding the average line precludes any practical application of the method.   Further, assuming the average could be determined, it would result in a private claim of ownership to lands that are awash in tides when the true mean high tide line is landward of the average line.   At such times the land is public.   The SLC suggests the solution is to adopt the rule in Internal Improvement Fund v. Ocean Hotels, Inc. (1974) 40 Fla.Supp. 26, 33, that the mean high tide line is determined when the beach is in its most landward or “winter” profile.

Neither solution is satisfactory.   Each results in a boundary that differs from the true mean high tide line most of the time.   Adopting either rule shifts boundary lines in such a way that public and private landowners may be deprived of valuable rights at various times of the year.   We question whether we have the authority to affect such rights by judicial fiat even if we were inclined to do so.

Moreover, the rules set forth in William Kent Estate and Ocean Hotels are helpful in determining a fixed boundary line only under limited circumstances.   Thus the court in William Kent Estate instructed the parties to determine whether the movement of sand was substantially the same each year.   Such a finding is necessary to establishing a fixed average line because substantial changes in the amount of sand removed and deposited each year would result in a changing average.   Similarly, the winter profile rule of Ocean Hotels can result in a fixed boundary line only where the winter profile of the beach is substantially the same each year.

Neither case discusses the problem of fixing a boundary line where the beach is subject to continuous landward erosion.   Under such circumstances the mean high tide line will also be subject to landward movement, and it will be impossible to determine a fixed boundary.   After a period of erosion, any boundary previously fixed under the rule in William Kent Estate or Ocean Hotels would bear no relationship to the true mean high tide line.   It may result in a private claim to ownership of land that is permanently under ocean water.

 A moving boundary may therefore result in a development project encroaching on public lands at some times of year and not at others.   Because a private landowner has no right to build a project that encroaches on public lands for even part of the time, such a partial encroachment is sufficient to justify the imposition of access conditions.   On the other hand, a moving boundary line does not make it impossible for a permit applicant to carry his burden of showing the project will not encroach on public lands.   In many cases the project may be built sufficiently landward that no encroachment is probable.

The parties should also keep in mind that a negotiated agreement is a worthwhile avenue to pursue.  (§ 6336.⁶ )

V

CROSS–APPEAL

Next we consider various issues raised by Sandyland on cross-appeal.

 Sandyland contends the trial court erred in not declaring the walkway condition to be unconstitutional.   The contention is based on the theory that Sandyland has shown the seawall to have been built entirely on its own land.   Where, as here, an applicant for a seawall permit has failed to carry its burden of showing the seawall will not encroach on state tidelands, we see nothing unconstitutional about either denying the application or granting it on condition that the public have a walkway on top of the seawall.

 Similarly, Sandyland's failure to carry its burden of showing the seawall will not encroach on state tidelands will support a condition requiring an offer to dedicate an easement for lateral access from the toe of the seawall seaward, even though it might be said that such an offer to dedicate is superfluous.

Sandyland contends the trial court erred in declining to rule that the Commission acted unconstitutionally when it applied a “mandatory access” provision of the County's local coastal plan.   The provision in question states, “For all new development between the first public road and the ocean, granting of lateral easements to allow for public access along the shoreline shall be mandatory.”

There is no doubt that had the Commission required public access for no better reason than that the seawall constituted new development on private land, it would have run afoul of Nollan.   But there is also no doubt that the Commission construed the mandatory access requirement of the local coastal plan as requiring more than a finding that the seawall constituted new development.   Had the Commission read the mandatory access requirement literally, it would not have taken evidence and made findings on the location of the project in relation to the mean high tide line.   It is apparent the Commission construed the local coastal plan as requiring a public access easement only where the development project burdens public access.

 Sandyland next contends the court erred in declining to rule that it had not received a fair hearing.   It points out that the appeal was brought by the chairman and vice-chairman of the Commission, and that the walkway and lateral access conditions were imposed by a seven-to-five margin, with the appealing commissioners making the majority.

An appeal by any two members of the Commission is expressly authorized by statute.  (§ 30625, subd. (a).⁷ )  Nothing in the statute prohibits an appealing commissioner from participating in the hearing on appeal, and Sandyland raised no objection until after it received the Commission's adverse ruling.

At the hearing in this case the Commission chairman asked the executive director to explain how appeals are made.   The director explained that if in his opinion a case merits review he will make a recommendation to the Commission chairman and vice-chairman.   The telephone call or written material the commissioners receive does not constitute a full hearing, an appeal implies no decision of the final outcome, and the appealing commissioners retain their ability after the full public hearing to decide the matter.

Sandyland cites no authority in support of its contention that a fair hearing required the commissioners who appealed to abstain from participating.   The Commission's executive director made it clear than an appeal by a commissioner is nothing more than a decision that the matter should be subject to a hearing.   It is not a determination on the merits.   It is similar to our Supreme Court ordering on its own motion a review of a Court of Appeal decision.  (Cal. Rules of Court, rule 28(a)(1).⁸ )

Finally Sandyland contends the requirement that it open and maintain the walkway violated section 30212, subdivision (a).   That section provides in part, “Dedicated accessway shall not be required to be opened to public use until a public agency or private association agrees to accept responsibility for maintenance and liability of the accessway.”

No doubt the provision applies where a project is built entirely on private property.   A more difficult question is whether our Legislature intended the burden of maintenance and liability to fall on the public where a private party is allowed to construct a project lying in part on public lands.   Because on remand Sandyland may be able to show the seawall lies entirely on private land, we need not decide that question here.

The judgment granting the writ of mandate is reversed with instructions to remand the matter to the Commission for further proceedings.   Costs are awarded to the Commission.

FOOTNOTES

1.   All statutory references are to the Public Resources Code unless otherwise stated.

2.   Unless otherwise specified “Sandyland” refers collectively to the Sandyland Cove Homeowners Association and the individual homeowners.

3.   Section 30010 provides:  “The Legislature hereby finds and declares that this division is not intended, and shall not be construed as authorizing the commission, port governing body, or local government acting pursuant to this division to exercise their power to grant or deny a permit in a manner which will take or damage private property for public use, without the payment of just compensation therefor.   This section is not intended to increase or decrease the rights of any owner of property under the Constitution of the State of California or the United States.”

4.   Section 30214, subdivision (b) provides:  “It is the intent of the Legislature that the public access policies of this article be carried out in a reasonable manner that considers the equities and that balances the rights of the individual property owner with the public's constitutional right of access pursuant to Section 4 of Article X of the California Constitution.   Nothing in this section or any amendment thereto shall be construed as a limitation on the rights guaranteed to the public under Section 4 of Article X of the California Constitution.”Section 30235 provides:  “Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply.   Existing marine structures causing water stagnation contributing to pollution problems and fishkills should be phased out or upgraded where feasible.”

5.   Section 30007.5 provides:  “The Legislature further finds and recognizes that conflicts may occur between one or more policies of the division.   The Legislature therefore declares that in carrying out the provisions of this division such conflicts be resolved in a manner which on balance is the most protective of significant coastal resources.   In this context, the Legislature declares that broader policies which, for example, serve to concentrate development in close proximity to urban and employment centers may be more protective, overall, than specific wildlife habitat and other similar resource policies.”

6.   Section 6336 provides in part:  “The [State Lands Commission] may negotiate with any person or local agency having or claiming an interest in any land affected by boundaries described by the ‘Preliminary Description of Ungranted Tideland Boundaries,’ for the purpose of reaching a boundary agreement.   Any such boundary agreement shall be binding on the state and other parties thereto when approved by the commission.”

7.   Section 30625, subdivision (a) provides in part:  “[A]ny appealable action on a coastal development permit or claim of exemption for any development by a local government or port governing body may be appealed to the commission by an applicant, any aggrieved person, or any two members of the commission.”

8.   Rule 28(a)(1) provides in part:  “If no petition for review is filed, within 30 days after a decision of a Court of Appeal becomes final as to that court the Supreme Court, on its own motion, may order review of the Court of Appeal decision.”

GILBERT, Associate Justice.

STONE, P.J., and YEGAN, J., concur.