Lechuza Villas West v. Cal. Coastal Comm'n

In 1990 and 1991, even before it had completed its purchase of the property, Lechuza submitted several different development proposals to the California Coastal Commission (hereafter, the Coastal Commission) to obtain the necessary permits to develop the property. In connection with developing the property, Lechuza also contacted the California State Lands Commission (hereafter, the Lands Commission) about the proposed location of the residences it intended to construct. In response, the Lands Commission wrote back in March of 1991, stating, in relevant part:

“Based on the information you provided and an analysis of our in-house records and maps, the proposed residences appear to be located landward of those surveyed mean high tide lines known to us at this time. Therefore, we

All these permit applications were denied, based on the Coastal Commission’s findings that the proposed development was inconsistent with various provisions of the Coastal Act, and, specifically, that the proposed revetment, which otherwise “shall be permitted when required to serve coastal-dependent uses or to protect existing structures” (Pub. Resources Code, § 30235, italics added), would interfere with the public’s right of access, could alter the usable area of beach under public ownership, cause erosion on nearby beaches, and would physically block part of the public beach and encroach on public tidelands. Lechuza filed separate mandate petitions and claims for an unconstitutional taking following the first two denials of its permit applications.^[5]

In 1992, following the decision in Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003 [ 112 S.Ct. 2886 , 120 L.Ed.2d 798 ] (holding that the regulatory denial of all economically viable use of private property was an unconstitutional taking unless necessary to prevent a nuisance or land use prohibited by state law), the parties agreed to entry, in case No. SS001187, of a stipulated judgment for remand based on newly discovered relevant information. That stipulated judgment was entered on January 12, 1993, and provided, in relevant part, that the Coastal Commission would reconsider Lechuza’s previously denied permit applications in light of all the evidence produced at the hearing on Lechuza’s most recent (and not yet denied) permit applications.

Perhaps prompted by the Lucas decision, the Coastal Commission had contacted the Lands Commission regarding the location of the mean high

In a statement of decision dated December 27, 1994, Judge Robert H. O’Brien (Judge O’Brien),^[7] in response to the Coastal Commission’s motion for an order denying Lechuza’s petition for a writ of mandate, noted that he was ruling only on the first and second causes of action because, pursuant to Superior Court of Los Angeles County Rules, local rule 2.5, he had jurisdiction only over writs of mandate and all declaratory relief actions appended thereto, and declined to rule on the third, fourth and fifth causes of action which were then before Judge Hiroshige in a different department. Judge O’Brien then concluded that the Coastal Commission could not determine whether petitioner’s project was consistent with Public Resources Code section 30211 without a proper delineation of the boundary between Lechuza’s property and the sovereign lands of the State, and that the statutory and constitutional validity of the Coastal Commission’s permit decision could not be addressed until the proper boundaries had been delineated, that the burden of establishing the location of the boundary rested on Lechuza, and that Lechuza had failed to establish the location of the boundary. Judge O’Brien rejected Lechuza’s contention that the decision in

Because the unresolved status of the boundary issue justified denying Lechuza’s petition, Judge O’Brien did not reach the issue of the validity of the other findings in support of the Coastal Commission’s denial of the permit applications, nor did he reach the issue of whether the Coastal Commission could have approved the project without violating the California Environmental Quality Act, given Lechuza’s failure to perform a survey for the globose dune beetle.^[8] Judge O’Brien therefore granted the motion to deny the petition, and dismissed the second cause of action. He then directed that judgment not be entered on the first and second causes of action until a decision had been reached on the third, fourth and fifth causes of action. The resolution of those claims required proceeding in a trial department as they were not the proper subject for consideration by a judge exclusively assigned to the determination of writs. Thus, the remaining causes of action were left to Judge Hiroshige for further action after Judge O’Brien ruled on the writ.

On July 11, 1995, Lechuza filed a first amended petition for writ of mandate and complaint for declaratory relief, for damages and to quiet title (collectively, the amended complaint). The amended complaint added the Lands Commission as a defendant, and also added (1) a sixth cause of action for quiet title against the Lands Commission, seeking to establish that no portion of its lots which lies northerly of a line described in paragraph 64 of the amended complaint lies seaward of the ordinary high water mark of the Pacific Ocean; (2) a seventh cause of action for quiet title against the Lands Commission, seeking to establish that no public right of navigation exists landward of the ordinary high water mark of the Pacific Ocean upon any portion of Lechuza’s lots; and (3) an eighth cause of action for quiet title against the State, seeking to establish that no easement for public recreational use exists with respect to any portion of Lechuza’s lots lying northerly of the lines described in paragraph 64 of the amended complaint.

On August 16, 1995, Lechuza again amended its complaint to substitute MEHOA as a defendant in place of one of the Doe defendants, and the

MEHOA then filed a cross-complaint against Lechuza, and various other defendants, which contained three causes of action: (1) to quiet its title to an express easement over Lechuza’s lots; (2) for a declaration as to the size and location of such express easement for access and recreation over Lechuza’s lots; and (3) for a declaration as to MEHOA’s rights, under the CC&R’s, to interpret and enforce the CC&R’s against Lechuza’s lots (MEHOA’s third cause of action). The above mentioned stipulation as to the order in which the various causes of action would be tried made no mention of MEHOA’s third cause of action and how or when it would be tried.^[9]

Following trial, Judge Hiroshige issued a statement of decision resolving three related issues: (1) the location of the seaward boundary, (2) the claim of the State for a public navigational servitude over those portions of the property covered from time to time by the ebb and flow of the ocean tide, and (3) MEHOA’s claim of an express easement pursuant to the CC&R’s. As to the boundary issue, Judge Hiroshige concluded that Kent Estate had held that “on beaches subject to a fluctuating mean high tide line due to annual erosion and accretion, ... the ordinary high water mark will constitute an ‘average’ fixed location of the mean high tide line which then serves as the seaward boundary between private property and public tidelands.”^[10]

As to the remaining two issues, Judge Hiroshige concluded that (1) the State had no claim to a navigational easement landward of the now established seaward boundary up to the point at which the highest annual swells

C.

Discussion

1. Judge Hiroshige Erred by Granting Lechuza.’s Motion to Remand Pursuant to Code of Civil Procedure Section 1094.5, Subdivision (e)

The Coastal Commission contends that Judge Hiroshige erred by issuing a peremptory writ of mandate directing the Coastal Commission to reconsider Lechuza’s permit applications based on Judge Hiroshige’s conclusion as to the location of the legal southerly boundary because (1) Code of Civil Procedure section 1094.5 does not allow him to reopen the mandate proceedings that already had been concluded by Judge O’Brien, and (2) Judge Hiroshige had no jurisdiction to overrule Judge O’Brien’s decision to deny the petition for a writ of mandate. Lechuza contends that Judge Hiroshige’s actions were appropriate, citing Windigo Mills v. Unemployment Ins. Appeals Bd. (1979) 92 Cal.App.3d 586 [ 155 Cal.Rptr. 63 ], Curtis v. Board of Retirement (1986) 177 Cal.App.3d 293 [ 223 Cal.Rptr. 123 ], and Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872 [ 233 Cal.Rptr. 708 ].

Code of Civil Procedure section 1094.5 provides for judicial review of administrative orders or decisions. (Code Civ. Proc., § 1094.5, subd. (a).) The scope of such review is “whether the [administrative agency] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) Abuse of discretion is established if the administrative agency has not proceeded in the manner required by law, the order

Code of Civil Procedure section 1094.5, subdivision (e), the subdivision pursuant to which Judge Hiroshige issued a peremptory writ of mandate commanding the Coastal Commission to set aside its permit denial and to reconsider Lechuza’s permit applications based on “the relevant rulings of the Court in this action,” provides: “Where the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced [new evidence] or which was improperly excluded at the hearing before [the administrative agency], it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.”^[12]

Here, Judge Hiroshige remanded the matter to the Coastal Commission for reconsideration based on the “new evidence” of the now legally determined seaward boundary. However, this was not newly discovered evidence which, in the exercise of reasonable discretion, could not have been produced or which was improperly excluded at the hearing before the Coastal Commission. As the Coastal Commission and the Lands Commission point out, there was no reason that Lechuza could not have established the legal boundary of the property before it proceeded with any of its multiple permit applications. Therefore, there was no legal basis upon which the matter could be remanded for reconsideration; instead, Lechuza’s proper remedy would have been to resubmit permit applications based on the legally established boundary. However, as the nature of the extant proceeding shows, such a resubmission (not to mention a writ commanding reconsideration) would have been premature until the judicial decision as to the legal boundary became final.

This resolves the takings issue as well. Although Judge Hiroshige found that there had been a temporary taking of Lechuza’s property, there can be

2. The Legal Boundary Line Is Ambulatory, Not Fixed

Both the Coastal Commission and the Lands Commission contend that Judge Hiroshige erred by determining that the boundary line between Lechuza’s property and that of the State is a fixed line based on the mathematical average of 37 surveys of the mean high tide line. They argue that instead the proper boundary between the State’s tidelands and Lechuza’s private property is a line which moves as the ordinary high tide (a fixed plane) intersects the shifting sands from day to day.

Tidelands are those lands lying between the lines of mean high and mean low tide which are covered and uncovered successively by the ebb and flow thereof. (Marks v. Whitney (1971) 6 Cal.3d 251 , 257-258 [ 98 Cal.Rptr. 790 , 491 P.2d 374 ].) The State owns all tidelands below the ordinary high water mark, and holds such lands in trust for the public (Civ. Code, § 670; State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50 , 63 [ 44 Cal.Rptr.2d 399 , 900 P.2d 648 ]), while the owners of land bordering on tidelands take to the ordinary high water mark. (Civ. Code, § 830; State of Cal. ex rel. State Lands Com. v. Superior Court, supra, 11 Cal.4th at p. 63.) The high water mark is the mark made by the fixed plane of high tide where it touches the land; as the land along a body of water gradually builds up or erodes, the ordinary high water mark necessarily moves, and thus the mark or line of mean high tide, i.e., the legal boundary, also moves. (City of Oakland v. Buteau (1919) 180 Cal. 83 [ 179 P. 170 ]; Kent Estate, supra, 242 Cal.App.2d at p. 160.)^[13]

In Kent Estate, supra, 242 Cal.App.2d 156 , on the interpretation of which Judge Hiroshige and Judge O’Brien parted company, the defendant owned a

The Kent Estate court then made a distinction between the ordinary high tide (an unvarying plane) on the one hand, and, on the other hand, the boundary line created at the point at which the plane of average high tide meets the land, which line may vary: “To the extent that the land itself moves, as is the case of the sandy beach here in issue, this line does vary.” (242 Cal.App.2d at p. 160.) It then concluded that the evidence before the trial court did not support the trial court’s finding that the boundary in this case actually migrated back and forth between the land and sea due to natural erosion (more properly termed deliction) and accretion, given that according to case law, only gradual, “imperceptible” changes in land mass constitute accretion and/or deliction, and the evidence showed a change of some 80 feet between the summer and winter months—“hardly . . . gradual and imperceptible” changes, which thus could not “meet the definitions of natural accretion and deliction.” (Ibid.)

Having concluded the evidence did not support the trial court’s finding that there was natural accretion and/or deliction (upon which finding rested the trial court’s conclusion that the boundary line migrated from time to time), the court then considered what might be accomplished upon retrial. Noting that “the ‘almost mathematical line bounding Blackacre’ [citation]

Thus, the Kent Estate court did not hold that the boundary line created by the points at which the plane of the average high tide meets the land cannot vary. Instead, it specifically recognized that such a boundary line may vary to the extent the latid itself moves. It also suggested that a fluctuating boundary line might warrant denial of injunctive relief, and suggested, without so holding, that one way to create some certainty as to a boundary might be to calculate an average or ordinary line of the shore against which the plane of the ordinary high tide could be placed to create a reasonably definite boundary line.

The principle relied upon by the reviewing court in Kent Estate, supra, 242 Cal.App.2d 156 , that a coastal boundary line may move back and forth with erosion and accretion, is thus in keeping with the earlier authority of City of Oakland v. Buteau, supra, 180 Cal. 83 . In that case, the City of Oakland had obtained a judgment condemning for public use certain property held in trust for Merritt Hospital to the extent such property lay above the line of “ship channel.”^[15] Part of the property condemned was above the line of low tide, and part was below the low tide line. Thereafter, the city brought suit to recover possession of the land lying below “ship channel,” which the hospital used for wharflng purposes. In Oakland v. Oakland Water Front Co. (1897) 118 Cal. 160 [ 50 P. 277 ], the California Supreme Court had held that “ship channel,” as used in the act of May 4, 1852, meant the low tide line, and the city and the hospital both agreed that the issue therefore was the location of the boundary at the low tide line. However, the city took the position that the southerly boundary of the property was the line of low tide as it existed on May 4, 1852, while the hospital took the position that the boundary described in the act was the line of low tide as it might appear from time to time.

The California Supreme Court held that both as to lands bordered by streams, i.e., riparian lands, and lands bounded by tidal water, i.e., littoral

As noted above, Lechuza took a cross-appeal from Judge Hiroshige’s determination that the seaward boundary is located anywhere other than at the location depicted on the recorded 1932 Tract Map for tract No. 10630. In other words, Lechuza’s fallback position is that even though a boundary along the ocean legally may be ambulatory rather than fixed, the particular boundary here was fixed. According to Lechuza, the recorded 1932 Tract Map delineates the legal boundaries of the property as the line of mean high tide as surveyed on July 23, 1932, and the government’s acceptance and recordation of the 1932 Tract Map pursuant to the guidelines set forth in the

Applying the above noted rule of interpretation to the CC&R’s, along with the general rule that a boundary along the edge of a body of water follows the water line itself, we conclude that the only reasonable interpretation of the line shown on the 1932 Tract Map is that the Marblehead Land Company intended that the southerly boundary of the lots in question was to be defined by the mean tide line as it might exist from time to time, not by a static line defined by the mean high tide line as it existed as surveyed on July 23,1932, and that the fact the meander line showed that it was based on a survey of a particular date was irrelevant on the issue of the legal southerly boundary.

Having so concluded, Lechuza’s second proposition, that the government’s acceptance and recordation of the 1932 Tract Map pursuant to the guidelines set forth in the Subdivision Map Act has conclusively established the boundaries of the subject property, also is irrelevant; if true, it merely leads to a conclusion that the boundary so established is one which moves with the intersection of the plane of ordinary high tide and the shore.^[17]

However, not all portions of the Pacific Ocean are considered to be navigable. Specifically, tidal waters above the mean high tide line are not navigable waters. (See 43 U.S.C. § 1301 (a)(2) [“lands beneath navigable waters” are “all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each . . . State” (italics added)]; see also 33 C.F.R. § 322.2 (a) (1997) [defining “navigable waters of the United States” for purposes of the Rivers and Harbors Act of 1899 ( 33 U.S.C. § 403 ), which requires a permit from the Department of the Army’s Corps of Engineers for dredge and fill activities which alter “the course, location, condition or capacity of, . . . the channel of any navigable water of the United States” as “[generally, . . . those waters of the United States

Therefore, we conclude that Judge Hiroshige did not err by concluding that Lechuza’s property is not subject to any public navigational or recreational rights landward of the ordinary high tide line as it may exist from time to time.

4.-7.^[20]

D.

Conclusion

The southerly boundary of Lechuza’s lots is the mean high tide line, which is an ambulatory line formed by the intersection of the ordinary high tide plane and the shifting shoreline. This is the law in California, and is the result clearly intended by the original grantor of Tract No. 10630. Therefore, Judge Hiroshige erred by fixing the boundary as a stationary line based on the average of a number of surveys, although he did not err by concluding that the southerly boundary was not the fixed line shown on the 1932 Tract Map.

The same ambulatory line also marks the point at which any public rights over navigable water ends, because ocean waters which extend above such a line, as a matter of law, are not navigable waters. Therefore Judge Hiroshige did not err by denying the State a recreational easement in favor of the public over Lechuza’s private property based on the State’s theory that such wave uprush past the mean high tide line constitutes navigable waters.

vacate his order setting the southerly boundary as a fixed line based on an average of various ordinary high tide lines;

vacate his order granting summary adjudication in favor of Lechuza on the issue of takings liability;

vacate his order awarding sanctions against the Lands Commission for bringing a motion for new trial; and

conduct further proceedings not inconsistent with the views expressed herein.^[21]

The Coastal Commission’s appeal of the trial court’s order suspending the automatic stay under Code of Civil Procedure section 1110b is dismissed as moot.

The Coastal Commission, the Lands Commission, and MEHOA shall recover their costs in connection with MEHOA’s appeal from the judgment and the Coastal Commission’s and the Lands Commission’s writ proceeding.

Kitching, J., and Aldrich, J., concurred.

A petition for a rehearing was denied January 14,1998, and the petition of respondent Lechuza Villas West for review by the Supreme Court was denied April 1, 1998.