San Diegans for Sensible Land Use v. City of San Diego
Filed 5/25/06 San Diegans for Sensible Land Use v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGANS FOR SENSIBLE LAND USE, Plaintiff and Appellant, v. CITY OF SAN DIEGO, CITY OF SAN DIEGO CITY COUNCIL AND CALIFORNIA COASTAL COMMISSION, Defendants and Respondents. | D046603 (Super. Ct. No. GIC822337) |
APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Affirmed.
San Diegans for Sensible Land Use (SDSLU) appeals the denial of its petition for a writ of mandate challenging the certification with modifications of an amendment to the La Jolla Community Plan and Local Coastal Program Land Use Plan (2002 Plan) by the California Coastal Commission (Coastal Commission) as compliant with the California Coastal Act of 1976 (Coastal Act) (Pub. Resources Code,[1] § 30000 et seq.) and the subsequent approval of the 2002 Plan by the City of San Diego (City).
On appeal, SDSLU challenges the adequacy of the Coastal Commission's notice of the certification hearing; its distribution of the staff report; its failure to make an express finding whether the 2002 Plan raised substantial issues; and its imposition of 63 modifications as a condition of certification. SDSLU also contends the City's staff improperly suggested modifications to the 2002 Plan to the Coastal Commission staff after the San Diego City Council [City Council] had approved the 2002 Plan and contends the City violated the California Environmental Quality Act (CEQA). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The 2002 Plan is for the community of La Jolla, a neighborhood within the City. Prior to the adoption of the 2002 Plan, development in La Jolla was governed by several different plans.[2] The 2002 Plan consolidated these plans into one document. The City submitted the 2002 Plan to the Coastal Commission for certification it complied with the Coastal Act.
The Coastal Commission's staff prepared a report on January 13, 2003 (January staff report), discussing the 2002 Plan and recommending the Coastal Commission deny the plan as submitted and conditionally approve it subject to suggested modifications. The Coastal Commission set a hearing for February 5, 2003.
At least 10 days prior to the hearing, the Coastal Commission sent written notice of the hearing to the City, all agencies, individuals, and organizations who had requested notice as well as others known by the Commission to have a particular interest in the 2002 Plan. The notice stated the full January staff report, completed January 13, 2003, was available.[3] Some individuals and groups requested and received copies of the January staff report.
After completing the January staff report, the Coastal Commission's staff continued to work with the City's staff and other parties to reconcile a number of issues. The night before the hearing, February 4, 2003, the Coastal Commission's staff prepared a report (February staff report) with additional modifications.
At the Coastal Commission meeting on February 5, numerous people spoke, including future members of SDSLU who, inter alia, opposed all of the staff's modifications, referring to them as " 11th hour amendments." The Coastal Commission voted to deny the 2002 Plan as submitted. The commissioners modified some of the staff's proposed modifications by either deleting or adding language and added a
modification proposed at the hearing.[4] The Coastal Commission then certified the 2002 Plan subject to the modifications. At its August 2003 meeting, the Coastal Commission adopted revised findings because it had not adopted all the staff recommendations at the February 5 hearing, and therefore, the findings contained in the January staff report were not entirely congruent with the Coastal Commission's adopted recommendations.
In November 2003, the City held a public hearing to consider the proposed modifications and voted to adopt Resolution No. R-298578, accepting the Coastal Commission's suggested modifications contingent upon seven declarations. The Coastal Commission's executive director recommended the Coastal Commission find the declarations were consistent with its action.
On February 19, 2004, the Coastal Commission considered the executive director's recommendation, as well as a number of letters, and agreed the City had properly accepted the suggested modifications.
SDSLU filed a petition for a writ of mandate seeking to set aside the Coastal Commission's certification and the City's adoption of the 2002 Plan. The court issued a
statement of decision and denied the petition. SDSLU appealed.
DISCUSSION
I
Adequacy of Notice
SDSLU contends the Coastal Commission failed to properly notice the February 5 public hearing because the February staff report was not completed and available seven days before the hearing and the Coastal Commission failed to mail copies of the staff reports to all required individuals and organizations.
(A) Applicable Law
Coastal cities and counties are required to submit local coastal plans or amendments to the plans to the Coastal Commission for certification that the plans are consistent with the Coastal Act. (§§ 30500, subd. (a); 30514.) Before a hearing on a local coastal plan, the Coastal Commission's staff must " prepare a staff recommendation which shall set forth specific findings, including a statement of facts and legal conclusions as to whether or not the proposed land use plan . . . conforms to the requirements of the . . . Coastal Act . . . and of [the] [R]egulations." (California Code of Regulations (Regs.), tit. 14,[5] § 13532.) Unless the local government has requested the Coastal Commission not to make any modifications, " [t]he proposed findings shall include any suggested modifications necessary to bring the land use plan . . . into compliance with the" Coastal Act and must " include any additional documentation, governmental actions or other activity necessary to carry out the requirements of the Coastal Act." (Regs., § 13532.) The Regulations require the final staff recommendation " shall be distributed to all commissioners, to the governing authority, to all affected cities and counties, and to all other agencies, individuals and organizations who have so requested or who are known by the executive director to have a particular interest in the [local coastal plan], within a reasonable time but in no event less than 7 calendar days prior to the scheduled public hearing." (Regs., § 13532, italics added.)
Notice of the Coastal Commission's public hearing " shall be distributed by mail to all members of the [Coastal] Commission, to the local government or governing authority, to all affected cities and counties, and to all other agencies, individuals and organizations who have so requested or who are known by the executive director to have a particular interest in the [local coastal plan], within a reasonable time but in no event less than 10 calendar days prior to the scheduled public hearing." (Regs., § 13524, italics added.) The notice must contain a brief description of the proposed plan, the date, time and place of the Coastal Commission hearing, and the " staff summary." (Ibid.) The " staff summary" must " be brief and . . . fairly present the essential features of the plan with a reasonable degree of specificity." (Regs., § 13523, subd. (a).) The " staff summary" must be accompanied by an analysis of questions of fact, applicable policies of the Coastal Act, prior Coastal Commission decisions related to the planning questions, important policy issues raised by the local coastal plan, comments received on the plan, and " other relevant matters." (Ibid.)
(B) Pertinent Facts
It is not disputed that at least 10 days prior to the February 5 meeting, the Coastal Commission mailed notice of the meeting. The notice contained a two-page document containing a brief description of the hearing procedures, background of the 2002 Plan including its consolidation of prior plans, a brief statement that the 2002 Plan addressed " several new issues and contain[ed] many new policies," and stated, " The report has been organized to address the following policy groups: Steep Hillsides/Open Space and Natural Resource Protection, Public Access/Shoreline Areas/Recreation; Hazards/Shoreline Protection; and, Sensitive Biological Resources/Water Quality." The document also stated:
" AVAILABILITY OF STAFF REPORT
" A staff report on the LCP [local coastal plan] amendment containing recommendations has been prepared for the [Coastal] Commission. If you would like the full text of the staff report, call or write the San Diego Area Office of the Coastal Commission and request a copy of the 'City of San Diego Local Coastal Program Amendment No. 1-02A' staff report. A copy will be mailed to you promptly. Questions regarding the report or hearing should be directed to [named individual with phone number]."
The notice for the hearing also contained the agenda and a preprinted page generally outlining the Coastal Commission's procedures. Among other things, the preprinted page addressed staff recommendations:
" A written staff report & recommendations will be available for most items on this agenda. At the end of the agenda description the author's initials and a code indicating his/her headquarters office are identified ( . . . SD=San Diego). To encourage public participation, staff reports will be distributed 10 days before the meeting whenever possible. If you are interested in any item on this Meeting Notice contact the nearest [Coastal] Commission office to arrange for a copy of the staff report & recommendation to be made available to you."
At the bottom of the preprinted page was the statement: " A copy of this agenda is available on the Internet." [6] (Bold emphasis omitted.)
(C) Analysis
(1) Distribution of Staff Report by Mail
Initially, we note SDSLU does not dispute that the original written notice was mailed at least 10 days prior to the hearing to the required organizations and individuals. SDSLU's complaint is that the written notice did not contain a copy of the staff report. The Regulations, however, require only that the written notice of the hearing contain a " staff summary." (Regs., § 13524, subd. (d).) The written notice did contain a staff summary briefly describing the plan, its background, location, and issues raised.
Additionally, in contrast to the Regulation governing notice of the public hearing, which requires " distribution by mail" (Regs., § 13524) at least 10 days before the hearing,
the Regulation governing the " Wichelman v.City of San Jose
" requires only that it " shall be distributed" to the various enumerated organizations and individuals (including those who are known by the executive director to have a particular interest) at least seven days before the hearing. (Regs. § 13532.) In other words, the Regulations do not require the staff report to be distributed at the same time as the notice of the hearing; the notice must be mailed within 10 days of the hearing, but the staff report need not be distributed until seven days before the hearing. Furthermore, the Regulations do not specify that the staff recommendations must be distributed by mail.[7]
(2) Timeliness of Staff Report
SDSLU contends the certification and approval of the 2002 Plan must be invalidated because the Coastal Commission failed to distribute the January staff report, including the February staff report containing additional modifications, seven days before the hearing.
The Coastal Commission does not dispute that the February staff report was not distributed seven days before the hearing; it was not completed until the night before the
hearing. The additional modifications contained in the February staff report were the result of comments made on the January staff report and negotiations between the Coastal Commission staff, the City and other parties that continued until the night before the hearing.
The Regulations require the Coastal Commission's staff to respond to " significant environmental points raised during evaluation of the" local coastal plan. (Regs., § 13533, subd. (b).) The staff's " response may be included within the staff report" but is not required to be included in the staff report. (Regs., § 13533, subd. (b).) The staff's response must " be distributed to the [Coastal] Commission and the person making the comment" and must " be available at the hearing . . . for all persons in attendance." (Regs., § 13533, subd. (b).) In other words, the staff's responses to comments, including additional suggested modifications to the 2002 Plan, were not required to be contained in a staff report issued more than seven days before the hearing. It was sufficient that the staff presented its responses, including responsive modifications, at the hearing itself.[8]
We conclude reversal is not warranted based on SDSLU's claims that the Coastal Commission improperly failed to mail the staff recommendations with the notice of the hearing and failed to distribute the February staff report seven days or more before the hearing.
II
Coastal Commission Failure to Make Specific Motion
Determining Whether the 2002 Plan Raised Substantial Issues
SDSLU contends the certification of the 2002 Plan with modifications is invalid because the Coastal Commission failed to make a finding whether the 2002 Plan raised substantial issues and to make specific findings supporting its action.
SDSLU relies on section 30512, which governs new local coastal plans. It requires the Coastal Commission, within 60 days after a plan is submitted and after a public hearing, to " determine whether the land use plan, or a portion thereof applicable to an identifiable geographic area, raises no substantial issue as to conformity with the policies of" the Coastal Act. (Id., subd. (a)(1).) If the Coastal Commission determines no substantial issue is raised, the plan is deemed certified as submitted, with the Coastal Commission required to " adopt findings to support its action." (Ibid.) If the Coastal Commission determines that a portion of a land use plan raises no substantial issue, then " the remainder of that land use plan applicable to other identifiable geographic areas shall be deemed to raise one or more substantial issues as to conformity with the policies of" the Coastal Act and the Coastal Commission is required to " identify each substantial issue for each geographic area." (Id., subd. (a)(2).) The Coastal Commission must " hold at least one public hearing on the matter or matters that have been identified as substantial issues" and determine within 90 days after the submittal of the plan " whether or not to certify the land use plan, in whole or in part." (Id., subd. (a)(3).) If the Coastal Commission fails to act within the 90 day period then " the land use plan, or portion thereof, shall be deemed certified by the commission." (Id., subd. (a)(3).)
The trial court, in rejecting SDSLU's argument, relied on section 30514, which applies to amendments of a local coastal plan. Section 30514 generally requires amendments to be subject to the same procedures and time limits as initial plans " except that the commission shall make no determination as to whether a proposed amendment raises a substantial issue as to conformity with the policies of Chapter 3." (Id., subd. (b), italics added.) Section 30514 provides different procedures and time periods for amendments that are " minor in nature or as requiring rapid and expeditious action" (id., subd. (c)) or are " de minimis" (id., subd. (d)(1)).
If the executive director designates an amendment as minor or requiring rapid and expeditious action, then the amendment is not subject to the usual time limits but " shall take effect on the 10th working day after designation." (§ 30514, subd. (c).) The executive director may determine that a proposed local coastal program amendment is de minimis when the " proposed amendment would have no impact, either individually or cumulatively, on coastal resources, is consistent with the policies" of the Coastal Act, the local government has met specified notification requirements and " [t] he proposed amendment does not propose any change in land use or water uses or any change in the allowable use of property." (Id., subd. (d)(1)(B).) The executive director is required to determine whether a proposed amendment is de minimis within 10 working days after the local government submits the amendment, to notice the amendment in the agenda of the next regularly scheduled Coastal Commission meeting, and to forward to the commission any public comments made to the local government. (Id., subd. (d)(3)(A).) If three or more of the commissioners do not object to the de minimis determination, then " the de minimis local coastal program amendment shall become part of the certified local coastal program 10 days after the date of the commission meeting." (Id., subd. (d)(3)(C).) If three or more commissioners object to the de minimis designation, then the amendment is subject to the usual time requirements. (Id., subd. (d)(3)(B).)
SDSLU argues section 30514 does not apply because the 2002 Plan was a new plan, replacing a number of older plans, and, further, applies only to minor amendments that are " discrete and specific in nature not a comprehensive rewrite." We disagree.
While it is true the 2002 Plan addressed several new issues and contained many new policies, it was not the initial coastal plan for the geographic area of La Jolla but rather consolidated a number of prior plans (ante, fn. 2) into one document and constituted an amended coastal plan for the geographic area.
SDSLU argues its interpretation that the Legislature intended to limit section 30514 to amendments that are " discrete and specific in nature" is supported by subdivision (e), which states: " For purposes of this section, 'amendment of a certified local coastal program' includes, but is not limited to, any action by a local government that authorizes the use of a parcel of land other than a use that is designated in the certified local coastal program as a permitted use of the parcel." SDSLU argues the Legislature intended section 30514 to encompass only amendments involving specific uses of identified parcels of land. We disagree.
SDSLU ignores language in section 30514, subdivision (e) that specifically does not limit it to a certain type of amendment; rather, it provides the scope of section 30514 " includes, but is not limited to" (italics added) government action in a local coastal plan authorizing a change in use. Further, it is apparent the Legislature specifically intended section 30514 to apply to a range of amendments. Section 30514 applies to all amendments, not just those that are " discrete and specific in nature." The statute distinguishes between amendments that are: (1) minor or requiring rapid or expeditious action; (2) de minimis in nature; and (3) those that are substantial. Minor or de minimis amendments are provided an expedited and simpler procedure to become effective. Substantial amendments are subject to the same procedural and time requirements as new land use plans except that the Coastal Commission is not required to make a separate determination whether the proposed amendment raises a substantial issue as to conformity with the Coastal Act. (§ 30514, subd. (b).)
III
Modifications
SDSLU objects to all of the modifications made by the Coastal Commission, contending the modifications violated section 30512.2, subdivision (b), which states: " The commission shall require conformance with the policies and requirements of Chapter 3 [i.e., the Coastal Act] . . . only to the extent necessary to achieve the basic state goals specified in Section 30001.5." SDSLU groups the modifications into the following categories: (1) modifications of language from " should" to " shall" ; (2) " synonymous wordsmith changes" ; and (3) modifications unsupported by substantial evidence.
The Coastal Commission's review of a local coastal plan is " limited to its administrative determination that the land use plan submitted by the local government does, or does not, conform with the requirements of Chapter 3 (commencing with Section 30200)." (§ 30512.2, subd. (a).) " In making this review, the commission is not authorized . . . to diminish or abridge the authority of a local government to adopt and establish, by ordinance, the precise content of its land use plan." (Ibid.) Further, when reviewing a local coastal plan, the Coastal Commission must " require conformance with the policies and requirements of Chapter 3 (commencing with Section 30200) only to the extent necessary to achieve the basic state goals specified in Section 30001.5." (§ 30512.2, subd. (b).)
Section 30001.5 states the basic goals of the Coastal Act as follows:
" (a) Protect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources.
" (b) Assure orderly, balanced utilization and conservation of coastal zone resources taking into account the social and economic needs of the people of the state.
" (c) Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners.
" (d) Assure priority for coastal-dependent and coastal-related development over other development on the coast.
" (e) Encourage state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development for mutually beneficial uses, including educational uses, in the coastal zone."
Chapter 3 of the Coastal Act sets out the policies " by which the adequacy of local coastal programs . . . are determined. (§ 30200, subd. (a).) These policies include maximizing public access to the sea and recreational opportunities (§§ 30210-30222, 30252); reserving upland areas necessary to support coastal recreational uses when feasible (§ 30224); maintaining, enhancing and, when feasible, restoring marine resources (§ 30230); maintaining and restoring, if feasible, the biological productivity and the quality of coastal waters, streams, wetlands, estuaries and lakes . . . " (§ 30231); permitting " [r]evetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes . . . 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" (§ 30235); protecting environmentally sensitive habitat areas (§ 30240); protecting scenic and visual qualities of the coastline (§ 30251); and minimizing the risk new development will contribute " significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs" (§ 30253).
" [S]ection 30801 gives an 'aggrieved person,' defined as anyone who appears at a public hearing or otherwise informs the [Coastal] Commission of concerns if unable to appear at the hearing, the right to judicial review by filing a petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5." (La Costa, supra, 101 Cal.App.4th 804, 814.) " 'The inquiry in such a case shall extend to the questions of whether the [Coastal Commission] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [Coastal Commission] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.' " (Ibid.; Pub. Resources Code, § 30801, Code Civ. Proc. § 1094.5, subd. (b).) " Where it is claimed that the findings are not supported by the evidence . . . , abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., subd. (c).) The courts review the Coastal Commission's decision to certify or deny certification of a local coastal plan using the substantial evidence standard of review. (City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488.)
(A) Language Changed from " Should" to " Shall"
SDSLU objects to 18 modifications, which " either replace the term 'should' with 'shall' or they recite or incorporate existing regulations contained in the [Land Development Code], [Environmentally Sensitive] Storm Water Ordinances or Steep Hillside Guidelines." SDSLU contends " [t]he Coastal Commission is not authorized to 'create or originate any land use rules and regulations' " and " [t]he Coastal Commission's modification of 'should' to 'shall' in the [2002 Plan] violates the Coastal Act by giving regulatory authority to the Coastal Commission." [9]
SDSLU makes only a general assertion of error without addressing any single one of the 18 should-to-shall modifications. This is inadequate to meet SDSLU's burden of establishing error. SDSLU, instead, seeks to shift its burden to us, asking us to examine the Coastal Act to determine if there are any provisions requiring some policies to be phrased in terms of " shall" rather than " should," sift through the administrative record for each of the 18 modifications, and compare each modification to the numerous policies contained in the Coastal Act. We decline to do so.
Moreover, even a cursory review of the Coastal Act shows there are numerous policies in the Coastal Act containing " shall" rather than " should" language, which, therefore, support a change in language from should to shall. These policies include the following sections in the Coastal Act:
Section 30210: " In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse" ;
Section 30211: " Development shall not interfere with the public's right of access to the sea where acquired through use or legislative authorization, including, but not limited to, the use of dry sand and rocky coastal beaches to the first line of terrestrial vegetation" ;
Section 30212: " Public access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects except where (1) it is inconsistent with public safety, military security needs, or the protection of fragile coastal resources, (2) adequate access exists nearby, or (3) agriculture would be adversely affected" ;
Section 30220: " Coastal areas suited for water-oriented recreational activities that cannot readily be provided at inland water areas shall be protected for such uses" ;
Section 30230: " Marine resources shall be maintained, enhanced, and, where feasible, restored . . ." ;
Section 30240, subdivision (a): " Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas" ;
Section 30251: " The scenic and visual qualities of coastal areas shall be considered and protected as a resource of public importance. Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance visual quality in visually degraded areas. New development in highly scenic areas such as those designated in the California Coastline Preservation and Recreation Plan prepared by the Department of Parks and Recreation and by local government shall be subordinate to the character of its setting" ; and
Section 30253, subdivision (2): " New development shall: . . . [¶] . . . Assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs." (Italics added to the quoted sections.)
Moreover, SDSLU's argument neglects to address the findings made by the Coastal Commission. For example, in its findings, the Coastal Commission noted " [t]here are a number of policies [in the 2002 Plan] pertaining to protection of public access and protection of public views to[] and along the ocean in the submitted [plan] which paraphrase the sections of the Coastal Act or cite its language verbatim. In a number of those policy statements, the word 'should' is used instead of the word 'shall.' However, the Coastal Act is very specific in its requirements for protection of both public access to and along the shoreline as well as protection of public views to and along the shoreline. Without the use of the word 'shall' the language is not strong enough and it implies that such measures are not mandatory in new development."
Our examination of one of the should-to-shall modifications shows the modification was proper. The original language in the 2002 Plan stated:
" The City should ensure public views from identified vantage points, to and from La Jolla's community landmarks and scenic vistas of the ocean, beach, and bluff areas, hillsides and canyons are retained and enhanced for public use. . . ." (Visual Resources, Policy (a-c), italics added.)
The Coastal Act, however, requires " [t]he scenic and visual qualities of coastal areas shall be . . . protected as a resource of public importance." (§ 30251, italics added.) The Coastal Commission revised the 2002 Plan language to state:
" Public views from identified vantage points, to and from La Jolla's community landmarks and scenic vistas of the ocean, beach and bluff areas, hillsides and canyons shall be retained and enhanced for public use." (Italics added.)
To support this change, the Coastal Commission explained:
" [S]everal policies address protection of public views to the ocean from public vantage points, public roadways, as well as preserving the scenic quality of coastal areas such as preserving and protecting coastal bluffs, beaches and shoreline areas. However, the policy statements contain the words, 'Public views should be preserved . . . ' rather than the ' . . . public views shall be preserved.' Since these policies mirror Sections 30210, 30211, 30212 and 30251 of the Coastal Act, it is important that the word[] 'shall' be used instead of 'should.' 'Should' implies that the requirement is elective, as in 'one should provide the view, if one can.' Thus, the use of the word 'should' is weak and does not assure protection of public access and visual access, to and along, the shoreline consistent with Coastal Act policies."
We conclude SDSLU has failed to establish that any of these modifications was improper.
(B) Wordsmithing Changes
SDSLU contends 38 of the Coastal Commission's modifications " offered nothing more than synonymous changes to the 2002 Plan language" and these " synonymous wordsmith change[s] exceed[] the Coastal Commission's authority to make suggested modifications 'only to the extent necessary to achieve the basic goals of the Coastal Act." SDSLU, however, presents specific arguments as to only two of these asserted wordsmithing changes. We therefore limit our discussion to these two modifications.
The Coastal Commission suggested modifying the Steep Hillside Policy 4(b) by using the word " hillsides" instead of " natural slope" :[10]
" The City should not issue a development permit for a project located on steep hillsides natural slopes in La Jolla, unless all the policies, recommendations and conditions identified in this plan are met."
The Coastal Commission suggested modifying the Shoreline Areas Recommendation 3(q) by using the word " shoreline" instead of " beach" :
" Where new development is proposed on property that lies between the shoreline and the first public roadway, offer for dedication as a public easement, lateral access along the beach shoreline."
It is readily apparent these changes were motivated simply by an intent to have the 2002 Plan use consistent language, that is, " steep hillsides" rather than " steep natural slopes" in the " Steep Hillside Policy" (italics added) and to use " shoreline" rather than " beach" in the policy referring to " new development . . . between the shoreline and the first public road" (italics added).
SDSLU argues because these were nonsubstantive changes, they were not necessary to bring the 2002 Plan into compliance with the Coastal Act and therefore the Coastal Commission was prohibited from suggesting the modifications. SDSLU makes a similar argument as to modifications 8, 45, 14, 18, 27, 37-39, and 51, contending these modifications had no impact as to the 2002 Plan and therefore were unnecessary to bring
the 2002 Plan into compliance with the Coastal Act. We disagree.
Under SDSLU's restrictive interpretation, even the correction of a typographical error in a local coastal plan would be prohibited and would result in invalidation of the Coastal Commission's certification.
SDSLU argues " [i]t is unlawful for the Coastal Commission to impose even one unnecessary modification" and asserts " the Court need only find substantial evidence that even one of the Coastal Commission's modifications exceeded the 'extent necessary to bring the 2002 Plan into conformity with the Coastal Act to invalidate the 2004 Plan." SDSLU cites no authority for this assertion and we find it unpersuasive.
In interpreting a legislative scheme, we must adopt an interpretation that is reasonable and consistent with the Legislature's intent. (Bustillos v. Murphy (2002) 96 Cal.App.4th 1277, 1280.) SDSLU's interpretation is unreasonable. The certification process is intended to provide review of a local coastal plan. The Legislature has specifically provided that if the Coastal Commission denies certification it may suggest modifications unless the local government requests otherwise. (§ 30512, subd. (b).) The Regulations specifically authorize the Coastal Commission to vote on " the specific terms or wording of a modification." (Regs., § 13537, subd. (b).) Nothing in the language of the Coastal Act indicates a single minor, nonsubstantive language change not strictly necessary to obtain compliance with the Coastal Act was intended by the Legislature to result in invalidating both the Coastal Commission's certification and the subsequent actions by the local government approving a local plan. Nor is there any indication of a statutory requirement that the local government, the Coastal Commission, and the public incur the expense and delay of a new certification and approval proceedings. Consistent with the policies of the Coastal Act, the Coastal Commission should be able to provide guidance and assistance so as to ensure a local coastal plan is a clear and useful document.
Moreover, in this case, the modifications were not limited to minor, nonsubstantive changes, but also included substantive modifications necessary to bring the 2002 Plan into compliance with the Coastal Act. Clearly, in these circumstances, when modifications are necessary to bring a local coastal plan into compliance with the Coastal Act and certification will be denied unless the plan is modified, the Coastal Commission may suggest other modifications, not technically necessary to bring the plan into compliance with the Coastal Act, but which will provide for the consistent use of language, correct typographical errors, and clarify the language and policies contained in the plan.
(C) Other Modifications
SDSLU complains of the trial court's failure to scrutinize each of the modifications, the lack of specific findings to support the modifications, the necessity of the modifications, the fiscal impact, and the consistency of the modifications with other documents.
The Coastal Commission's determination that a local coastal plan does or does not conform to the applicable statewide standards is reviewed using a substantial evidence standard of review. (City of Chula Vista v. Superior Court, supra, 133 Cal.App.3d 472, 488.) The trial court's role is identical to that of the appellate court. (Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 503.) Both the trial court and the appellate court begin with the presumption that the decision of an agency is presumed correct and supported by substantial evidence. The petitioner has the burden of showing the agency's decision was invalid and should be set aside. (See Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335-336.)
SDSLU was required to show both below and on appeal that the Coastal Commission's decision was incorrect. Further, because SDSLU is challenging the sufficiency of the evidence, it has a duty to " set forth a fair and adequate statement of the evidence which is claimed to be insufficient. It cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect." (Hickson v. Thielman (1956) 147 Cal.App.2d 11, 14.) " The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.)
(1) Trial Court's Failure to Scrutinize Each Modification
SDSLU asserts the trial court was required to scrutinize " each and every modification" to determine if there was substantial evidence showing the modification was limited in scope to that necessary to achieve the basic state goals.
SDSLU misunderstands the nature of judicial review of a Coastal Commission decision. As pointed out above, the courts presume a decision by the Coastal Commission is correct and supported by substantial evidence unless the petitioner shows the contrary. It was SDSLU's burden, not the trial court's burden, to scrutinize the modifications to see if they are proper and, if they were not, to present relevant citations to the record and authority to demonstrate the Coastal Commission's decision was erroneous. Most of SDSLU's arguments, both below and on appeal, consist of nothing more than an assertion of error without any cogent analysis or appropriate citation to the record or legal authority and, therefore, it has waived judicial review. Contrary to SDSLU's contention, the trial court was not required to independently scrutinize each and every modification.[11]
(2) Modifications Lacking Specific Findings
SDSLU asserts modifications 1, 4-6, 12-14, 16-17, 34, 41-43, 50, 54-56, 58, and 63 " lack the required specific findings by the Coastal Commission," and that " without specific findings or supporting evidence there is no substantial evidence to support that these Coastal Commission's modifications were required to bring the 2002 Plan into conformance with the Coastal Act or CEQA."
To support its argument, SDSLU cites to 150 pages of the administrative record: (1) the entire reporter's transcript of the February 5 Coastal Commission hearing, and (2) the staff report.
It is a party's duty to support the arguments in its briefs by appropriate references
to the record, which includes providing exact page citations. (Cal. Rules of Court, rule 14(a)(1)(C); People v. Woods (1968) 260 Cal.App.2d 728, 731.) The appellate court may strike a brief which does not meet this requirement. (Cal. Rules of Court, rule 18.) " As a practical matter, the appellate court is unable to adequately evaluate which facts the parties believe support their position when nothing more than a block page reference is offered in the briefs--e.g., 'C.T. pp. 1-20,' which upon examination turns out to be 20 nonsequential pages of deposition testimony." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205, italics omitted; Cal. Rules of Court, rule 15(a).) SDSLU has failed to meet its burden of providing specific citations to the record to support its argument.
Moreover, as we pointed out above, we begin with a presumption the Coastal Commission's findings are supported by substantial evidence; SDSLU has the burden of overcoming this presumption by showing the findings are not supported by substantial evidence. This burden requires SDSLU not only to set out a fair statement of the relevant evidence including the specific modifications to which it objects and the pertinent findings by the Coastal Commission, but also to present a coherent analysis of the modifications in light of the applicable law. SDSLU has failed to do this.
(3) Modifications -- Frustrate the Act, Are Inconsistent with the
General Plan and Fail to Take into Account Fiscal Impact
SDSLU asserts modifications 4, 7, 8, 14, 18, 20, 22, 23, 27, 28, 37, 38, 39, 42, 43, 45, 49, 51, 55, 56, and 58 " frustrate the act, are inconsistent with the General Plan, and fail to take to take into account the adverse fiscal impact." SDSLU claims " these modifications do not bring the 2002 Plan into compliance with the Coastal Act."
To support its assertion, SDSLU cites to a block of pages in the administrative record consisting of a summary of all suggested modifications. SDSLU does not cite to the general plan nor any evidence addressing the fiscal effect of the modifications. It is unclear how SDSLU expects this court to determine from the summary whether any of the modifications frustrates the Coastal Act, are inconsistent with the General Plan, or have a fiscal impact. SDSLU has failed to meet its burden of showing error.
(4) Modifications 7, 20, 22, 23, 58 -- Open Space
SDSLU challenges modifications 7, 20, 22, 23, and 58 arguing:
" . . . Modifications 7, 20, 22-23, 58 potentially limit development in open space and apply open space zone regulations prior to the Rezone. [Administrative record citations.] The Rezones were certified the same day as the 2004 Plan. [Administrative record citations]. Additionally, the City does not have the fiscal resources to develop these open space lands. [Citations to administrative record]. Consequently, there is no evidence to support that these modifications were necessary to bring the 2002 Plan into compliance with the [Coastal] Act."
SDSLU cites to a chart summarizing the modified policies, the modifications, and their impact. SDSLU does not set out the text of these modifications or present any analysis of how these modifications result in rezoning property. Nor does SDSLU present any argument to support its claim the City lacks the fiscal resources to develop these open spaces or to show the relevance of this issue vis-Ã -vis the specific modifications. Additionally, SDSLU's argument fails to address what findings were made by the Coastal Commission to support the modifications or to address what provisions of the Coastal Act might be applicable. We decline to search through the record or assume SDSLU's burden of showing error. We conclude SDSLU has not met its burden of showing these modifications were improper.
(5) Modifications Without Significant Impacts
SDSLU asserts modifications 18, 27, 37, 38, 39, and 51 have " no impact to the 2002 Plan" and, " [c]onsequently, there is no evidence to show that these modifications were necessary to bring the 2002 Plan into compliance with the Act." SDSLU supports these assertions with only the most cryptic and summary of arguments and with citations to the record that are essentially useless because they are to brief summaries of the modified policies and the modifications rather than to the actual modifications or the findings addressing the modifications. SDSLU has thus failed to include the necessary argument and citations to authority required on appeal and we may, therefore, treat the issue as waived. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
Similarly without analysis is SDSLU's conclusory argument these modifications were improper because " there is no evidence to show that these modifications were necessary to bring the 2002 Plan into compliance with the Act." Apparently, SDSLU expects us to take on faith its claim the modifications were unnecessary. We decline to do so. Moreover, an actual examination of the modifications, Coastal Commission findings and Coastal Act support a conclusion the modifications were necessary to bring the 2002 Plan into compliance with the Coastal Act.
(a) Modifications 8, 45 - Exclusion of Manufactured Slopes
SDSLU argues:
" Modifications 8, 45 designate some disturbed open space as natural, but they have no significant impact on the 2002 Plan because they exclude manufactured slopes. [Citations to administrative record.] Accordingly, there is no evidence to support that these modifications were necessary to bring the 2002 Plan into compliance with the [Coastal] Act."
Initially, we note that SDSLU's argument, as phrased, concedes the exclusion of manufactured slopes had some impact on the 2002 Plan since SDSLU argues only that the exclusion did not have a " significant impact." (Italics added.) Second, SDSLU's argument is so cryptic that it is impossible to discern the exact nature of its complaint. To the extent it is arguing the exclusion of " manufactured slopes" is merely a wordsmithing change, we have addressed wordsmithing issues in part III(B), infra.
Second, the modifications are supported by the Coastal Commission's findings and the Coastal Act.
Modification 8 adds a new Open Space Preservation and Natural Resource Protection, Policy 1(k):
" Land designated as open space but disturbed through offsite development, invasive plant species or unpermitted onsite development shall be presumed natural. Such definition of disturbance does not include natural slopes."
Modification 45 modifies Steep Hillsides Recommendation 5(c) as follows:
" Design structures on hillsides with a 25 percent or greater slope in a manner that does not excessively alter the natural hillside conditions, thereby minimizing the need for cut and fill grading. Land designated for open space, but disturbed through offsite development, invasive plant species or unpermitted onsite development shall be presumed natural. Such definition of disturbance does not include manufactured slopes. Maintain the existing condition of hillsides during construction and restore steep slopes that are disturbed by development or by road construction with native[] vegetation, where possible. Replant scarred slopes and graded areas with native vegetation. Revegetation should simulate pre-development conditions whenever possible and utilize species compatible with the native habitat type in order to reclaim the natural habitat."
The City requested clarification of these provisions from the Coastal Commission. The Coastal Commission explained the modifications were intended " to clarify that some disturbed slopes in areas designated as open space may in fact be sensitive and, therefore, should be considered natural" and that sites where manufactured slopes were not sanctioned and were the result of illegal activity " should be treated as natural and reviewed in accordance with the Environmentally Sensitive Lands regulations."
These modifications and the supporting findings are consistent with the Coastal Act's requirement that environmentally sensitive habitat areas be protected and that development in areas adjacent to environmentally sensitive areas be " sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat . . . areas." (§ 30240, subd. (b).) In sum, reversal is not merited on the ground these modifications were improper.
(b) Modification 18 - Street Signs
SDSLU criticizes modification 18 because it adds street locations for a sign program. Its entire argument is as follows:
" Modification 18 adds street signs. There is no impact to the 2002 Plan. [Citation to administrative record.] Further, there is no evidence to support a finding that this modification was necessary to bring the 2002 Plan into conformity with the [Coastal] Act."
Modification 18 revises Public Access, Policy 5(b):
" The City should institute The City should institute a comprehensive sign program along Prospect Street, North Torrey Pines Road, La Jolla Boulevard and La Jolla Shores Drive and La Jolla's coastline to identify existing public access points and enhance public safety along the coastal bluffs. The implementation of such a program could be done by the City through the Capital Improvement Program and/or through t
