Opponents of the proposed construction of two houses on a coastal bluff in San Clemente may pursue their lawsuit to overturn the California Coastal Commission's approval of the projects, even though the suit was filed after a statute of limitations had ostensibly expired, the Fourth District Court of Appeal has ruled.
Under the California Coastal Act, opponents of a commission ruling have 60 days from the date of a decision to file legal action. The San Clemente neighbors seemingly missed that deadline. They successfully argued, however, that their suit was timely not under the Coastal Act, but under a section of the California Environmental Quality Act (CEQA) that authorizes the commission's regulatory program.
The properties in question are two adjacent lots in an undeveloped, nine-parcel stretch on the city's coastal bluff. The vacant land has afforded the public an unobstructed view of the ocean and access to the beach for years.
In November 2007, the Coastal Commission approved development permits that allowed the properties' owners to build multistory, single-family houses on the lots. The commission conditioned its approval on the property owners' signing a memorandum of understanding (MOU) with the owners of five other undeveloped lots to provide for view corridors and pedestrian beach access.
While the commission approved the permits on November 14, 2007, it did not file the requisite notice of approval with the Natural Resources Agency until December 27. On January 28, the neighbors sued the commission, contending that the coastal panel had failed to adequately evaluate project alternatives; used the MOU to improperly defer mitigation; and violated procedural requirements by providing late notice of staff reports and failing to respond to written comments from the project opponents.
In response, the Commission and the two property owners contended the lawsuit was filed after the 60-day deadline in the Coastal Act. Orange County Superior Court Judge Thierry Patrick Colaw agreed and dismissed the neighbors' suit.
The Coastal Commission does not have to strictly abide by CEQA rules. Instead, it uses a certified regulatory equivalent of the CEQA process authorized by the act in Public Resources Code § 21080.5. Subdivision (g) of that section establishes a 30-day statute of limitations for legal action, and the appellate court ruled that the clock for legal action started ticking on December 27 when the commission filed the notice of permit approval with the Natural Resources Agency. "If § 21080.5, subdivision (g), applies, plaintiff's filing of the petition on Monday, January 28, 2008, was timely," Justice William Rylaarsdam wrote for the court.
The commission and property owners argued that this CEQA provision and the Coastal Act were in conflict because of their differing statutes of limitations, and in such a case, the Coastal Act should prevail. They had a state Supreme Court ruling on their side. In Sierra Club v. California Coastal Com., (2005) 35 Cal.4th 839, the court ruled that when CEQA and the Coastal Act conflict, the Coastal Act controls (see CP&DR Legal Digest, June 2005).
The appellate court, however, decided that the different statutes may be reconciled. The relevant Coastal Act provision is Public Resources Code § 30801, which applies to "any decision" by the Commission, while § 21080.5, subdivision (g), covers any state agency decision prepared pursuant to the same section.
"Thus," Rylaarsdam wrote, "§ 21080.5 governs a limited type of attack on Commission's rulings issued under the certified regulatory program exemption." The lawsuit filed by the group of San Clemente neighbors was precisely this sort of attack because it challenged the Commission's range of alternatives, mitigation measures and public review process, the court ruled.
The Fourth District Court of Appeal also pointed out that the question of legal deadlines would not have arisen if the Commission had filed its decision with the Natural Resources Agency promptly.
The case now returns to Superior Court for further proceedings.
The Case: Strother v. California Coastal Commission, No. G040745, 09 C.D.O.S. 5407. Filed April 30, 2009.
For the project opponents: James Geocaris, Lewis, Brisbois, Bisgaard & Smith, (714) 545-9200.
For the Commission: Christina Bull Arndt, attorney general's office (213) 897-8964.
For the property owners: John Flynn III, Nossaman, (949) 833-7800.