Petition for Writ of Mandate (Judge James C. Chalfant)


Case Number:?BS168074????Hearing Date:?October 04, 2018????Dept:?85

Robin Rudisill and Jenni Hawk v. California Coastal Commission, et al., BS 168074

Tentative decision on petition for writ of mandate:???granted

Petitioners Robin Rudisill (?Rudisill?) and Jenni Hawk (?Hawk?) seek a writ of mandate directing Respondent California Coastal Commission (?Coastal Commission?) to set aside its approval of a coastal development permit (?CDP?) awarded to Real Parties-in-Interest Lighthouse Brooks, LLC (?Lighthouse Brooks?) and Ramin Kolahi (?Kolahi?) (collectively, ?Project Developers?).

The court has read and considered the moving papers, oppositions,[1]?and reply, and renders the following tentative decision.

  1. Statement of the Case

Petitioners commenced this proceeding on February 6, 2017.??The operative pleading is the First Amended Petition (?FAP?) filed on November 13, 2017.??The verified FAP alleges in pertinent part as follows.

The Project Developers propose to demolish a five-unit apartment building on two residential parcels and construct in its place four approximately 2,500 square foot, three-story, 30-foot high small lot single family homes (?Project?). The Project site is located at 742-748 Brooks Avenue in Venice, California in a residential neighborhood known as Oakwood, approximately three-quarters of a mile inland from the beach.??The Project?s location is a Single Permit Jurisdiction, which means that a project proponent needs only one local CDP to proceed with development.??In Venice, the authority to grant a local CDP is vested in the City of Los Angeles (?City?) and appealable to the Coastal Commission.

On February 12, 2013, the Project Developers applied to the City for a local CDP and a Mello Act Compliance Determination to demolish the structures, remove the rental units including two affordable units, subdivide the parcels, and construct four single-family small lot homes.

The Venice Neighborhood Council (?VNC?), a City government advisory body, passed a unanimous motion opposing the Project.??The VNC noted that the size of the Project was out of scale with the neighborhood, and it was concerned with removal of affordable housing.??Despite VNC?s opposition, on October 23, 2013, the City?s Department of City Planning (?Planning?) approved a local CDP for the construction of the Project and a parcel map for the subdivision of the properties.

In October 2014, the City?s Department of Building and Safety (?LADBS?) issued demolition permits for the demolition of the then-existing apartment building at the Project site.??Demolition was completed in February 2015.

In May 2016, LADBS issued building permits for the construction of the Project and construction commenced.??In August 2016, nearby residents and the Los Angeles Times notified Coastal Commission staff about possible compliance issues for the Project.??On August 8 and September 6, 2016, Commission staff sent a letter to the Project Developers? representatives and Planning stating that the Project lacked a valid local CDP, the development undertaken violated the California Coastal Act (?Coastal Act? or the ?Act?), all work on the Project must cease thenceforth, and that the City should rescind all building permits for the Property.??Despite these warnings, the Project Developers continued with the development.

On August 19, 2016, the Coastal Commission received from Planning a Notice of Permit Issuance pertaining to the local CDP issued almost three years earlier.??The Commission?s Acting Executive Director and 43 Venice residents, including Petitioners, submitted an appeal of the local CDP for the Project.??Petitioners? main contentions were that the Project was inconsistent with the Coastal Act because it (1) was inconsistent with the character, mass, and scale of the surrounding areas, (2) adversely impacted Oakwood and the general Venice community character; and (3) would prejudice the City?s ability to prepare a certified Local Coastal Program (?LCP?) for the Venice Coastal Zone.

In September 2016, Coastal Commission staff issued a report on Petitioners? appeal.??The staff found the Project inconsistent with the Coastal Act for various reasons, including that the Project was visually incompatible with the character of the surrounding area and inconsistent with the certified Venice Land Use Plan (?LUP?).??Commission staff recommended that the Coastal Commissioners (1) find that Petitioners? appeal raised a substantial issue of the Project?s conformity with the Coastal Act, (2) conduct a?de novo?review, and (3) deny the CDP for the Project.

In October 2016, the Project Developers made minor revisions to the Project plans and requested that the Coastal Commission staff reconsider its recommendations.??The Project Developers indicated that they could not make size, mass, and scale revisions because such changes would make the Project economically infeasible.

On December 7, 2016, Commission staff issued an addendum to its original staff report.??The Coastal Commission staff found therein that the proposed changes were cosmetic only.??The staff noted that the Coastal Act?s requirements were not conditioned on economic feasibility.??The Coastal Commission staff therefore advised the Coastal Commission to deny a CDP for the Project.

On December 8, 2016, the Coastal Commission heard Petitioners? appeal.??The Commission found that the appeal raised a substantial issue as to the Project?s conformity with the Coastal Act and moved forward with a?de novo?review of the Project.??After hearing from both sides, the Commissioners deliberated.??They generally expressed sympathy to the Project Developers because they were in the middle of construction.??The Commissioners placed blame on the City for failing to comply with time limitations, and they disclosed that their goal was to ?get the Project to completion.???Without adopting any findings as to the Project?s compliance with the Coastal Act, the Commission voted nine-to-two to deny the appeal and approve the Project.

On May 12, 2017, in apparent response to the instant Petition, the Coastal Commission adopted?post hoc?revised findings to support the December 8, 2016 action.

The FAP alleges that the Coastal Commission abused its discretion in several respects.??First, the Coastal Commission failed to provide a fair hearing and violated Petitioners? due process rights by advising them that they could not engage in?ex parte?communications with the Coastal Commissioners, and yet allowing the Project Developers to do so.

Second, the Coastal Commission?s decision was unsupported by the findings and the findings unsupported by the evidence.??The Commission approved the Project on the faulty ground that the City had made a mistake, the Project was already under construction, and something had to be done to get it completed.??In so doing, the Commission unreasonably disregarded the recommendations of its staff supporting a contrary conclusion and also made a decision without making any express findings.??The Commission?s?post hocwritten decision did not resolve these issues as it is inconsistent and unsupported by the evidence.

Third, the Coastal Commission erred by accepting the City?s Notice of Permit Issuance because it did not comply with CCR section 13331, which requires such notices to be provided within five working days.??In accepting the notice, the Coastal Commission proceeded without or in excess of jurisdiction.

  1. Standard of Review

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies.??Topanga Ass?n for a Scenic Community v. County of Los Angeles, (?Topanga?) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts.??Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811.??Decisions of the Coastal Commission are governed by the substantial evidence standard.??Ross v. California Coastal Comm., (2011) 199 Cal.App.4th 900, 921.???Substantial evidence? is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (?California Youth Authority?) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value.??Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28.??The petitioner has the burden of demonstrating that the agency?s findings are not supported by substantial evidence in light of the whole record.??Young v. Gannon, (2002) 97 Cal.App.4th 209, 225.??The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency?s decision.??California Youth Authority,?supra, 104 Cal.App.4th at 585.??The court may not reweigh the evidence, or disregard or overturn a finding simply because a contrary finding would be more reasonable.??Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control, (1970) 2 Cal.3d 85, 94.??A court may only overturn the agency?s decision if a reasonable person could not have reached the decision based on the evidence that the agency had before it.??Bolsa Chica Land Trust v. Superior Court, (1999) 71 Cal.App.4h 493, 503.

The agency?s decision must be based on the evidence presented at the hearing.??Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862.??The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision.??Topanga,?supra, 11 Cal.3d at 514-15.??Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.??Id. at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code ?664), and the petitioner therefore has the burden of proof.??Steele v. Los Angeles County Civil Service Coastal Commission, (1958) 166 Cal.App.2d 129, 137.???[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.???Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

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  1. Coastal Act

The Coastal Act of 1976 (Pub. Res. Code[2]??30000?et seq.) is the legislative continuation of the coastal protection efforts commenced when the People passed Proposition 20, the 1972 initiative that created the Coastal Commission.??See?Ibarra v. California Coastal Comm., (?Ibarra?) (1986) 182 Cal.App.3d 687, 693.??One of the primary purposes of the Coastal Act is the avoidance of deleterious consequences of development on coastal resources.??Pacific Legal Foundation v. California Coastal Comm., (1982) 33 Cal.3d 158, 163.?The Supreme Court described the Coastal Act as a comprehensive scheme to govern land use planning for the entire coastal zone of California.??Yost v. Thomas, (1984) 36 Cal.3d 561, 565.??The Act must be liberally construed to accomplish its purposes and objectives.??30009.

The Coastal Act?s goals are binding on both the Coastal Commission and local government and include: (1) maximizing, expanding and maintaining public access to the coast and coastal zone (?? 30210-14); (2) expanding and protecting public recreation opportunities (?? 30220-24); (3) protecting and enhancing marine resources including biotic life (?? 30230-37); and (4) protecting and enhancing land resources (?? 30240-44).??The supremacy of these statewide policies over local, parochial concerns is a primary purpose of the Coastal Act, and the Commission is therefore given the ultimate authority under the Act and its interpretation.??Pratt Construction Co. v. California Coastal Comm., (2008) 162 Cal.App.4th 1068, 1075-76.

The City does not have a certified LCP.??AR 1186-87.??Prior to certification of its LCP, a local jurisdiction may, with respect to development within its area of jurisdiction in the Coastal Zone, establish procedures for the filing, processing, review, modification, approval, or denial of a CDP.???30600(b)(1).??Pursuant to this provision, the City developed a permit program in 1978 to exercise its option to issue local CDPs.??AR 242; ?30620.5.??In 2001, the Coastal Commission certified the City?s Venice LUP[3]?which, with the Coastal Act?s Chapter 3 policies, governs the City?s issuance of CDPs.??Kalnel Gardens, LLC v. City of Los Angeles,?(2016) 3 Cal.App.5th 927, 947-48.

Venice LUP Policy I.A.2 states: ?Ensure that the character and scale of existing single-family neighborhoods is maintained and allow for infill development provided that it is compatible with and maintains the density, character, and scale of the existing development.??Pet. RJN, Ex. 1, p.46.

Venice LUP Policy I.E.2 states: ?New development within the Venice Coastal Zone shall respect the scale and character of community development.??Buildings which are of a scale compatible with the community (with respect to bulk, height, buffer and setback) shall be encouraged.??All new development and renovations should respect the scale, massing, and landscape of existing residential neighborhoods.???AR 1014-15; Pet. RJN Ex. 1, p.13 (identifying Oakwood as part of Venice Coastal Zone);?see also??30251 (?Permitted development shall be sited and designed to ? be visually compatible with the character of surrounding areas?.?).

Venice LUP Policy I.E.3 provides: ?Varied styles of architecture are encouraged with building facades which incorporate varied planes and textures while maintaining the neighborhood scale and massing.???AR 1015.

Venice LUP Policy I.E.4 states: ?Projects involving large-scale land acquisition and clearance shall be discouraged in favor of rehabilitation, restoration and conservation projects, especially those involving single-family dwellings.???AR 1015.

When a local government, like the City, takes any action on a CDP application, this action may be appealed to the Coastal Commission.???30602.??In the case of a local government acting without a LCP, the local government must notify the Commission within five working days of any CDP it issues.???30620.5.??The action becomes final 20 workings days after the Commission receives the notice, unless an appeal is submitted within that time.??Ibid.

The City, or the Coastal Commission on appeal, shall issue a CDP if they find that the proposed development is in conformity with the Venice LUP.???30600.5(c).[4]

  1. Statement of Facts
  2. The Project Site

The Project site consists of two 5,000 square foot residential parcels located at 742-44 and 746-48 Brooks Avenue in a subarea of Venice, California known as Oakwood.??AR 35, 243.??The Project site is approximately three-quarters of a mile inland of the public beach.??AR 243.

The first lot located at 742-44 Brooks Avenue was previously developed with a duplex, and the second lot located at 746-48 Brooks Avenue was previously developed with a triplex with an attached garage.??AR 38.??The Oakwood neighborhood is characterized primarily by one-story and two-story homes of varying architectural styles with several one-story and two-story multi-unit apartment structures and several three-story structures.??AR 243.

  1. Project Description

Project Developers propose demolition of the existing duplex and triplex on the property, a subdivision of the lot into four residential parcels, and construction of four approximately 2,500 square foot three-story, 30-foot high single family homes.??AR 235.??The City?s Small Lot Subdivision Ordinance allows for small residential parcels to be subdivided into even smaller parcels to encourage density.?AR 244.??Each proposed home would include a 660 square foot two-car garage topped by a second story accessory living quarters and roof deck.??AR 235.??The home?s designs are nearly identical.??AR 253.??They represent a wall set back a minimal distance from the sidewalk, subsequently modified to have a differentiation of two of the four homes.??AR 253.??The proposed homes would have zero-foot side setbacks in the middle parcels and five-foot setbacks at the ends.??AR 105, 244.

  1. The City?s Approval of the Local CDP

In December 2012, Real Party Lighthouse Brooks purchased the Property.??AR 102.

On February 2, 2013, the Project Developers applied to the City for a local CDP to demolish the existing duplex and triplex on the Property, subdivide the lot into four residential parcels, and construct the four homes.??AR 99-100, 235.

On March 16, 2013, Lighthouse Brooks invited members of the Venice community to an informal meeting to discuss how it could design the Project to be better-suited for the area.??AR 733-34.??Another such meeting was held on April 6, 2013.??AR 262, 1247.

On June 18, 2013, the VNC passed a motion opposing the Project, stating that the design was out of scale with the neighborhood and that it was concerned with the Project?s removal of affordable housing units.??AR 240.

On August 14, 2013, the City?s Deputy Advisory Agency conducted a noticed public hearing on the Project.??AR 163.??Prior the hearing, notices were mailed to all properties within 500 feet of the Project site.??AR 73-91, 163.??At the hearing, no one objected to the Project.??AR 39.

On October 23, 2013, the City?s Zoning Administrator (?ZA?) approved Project Developers? CDP permit application as well as other land use entitlements for construction of the Project.??AR 35.??The ZA?s written decision found that the Project conformed with Chapter 3 of the Coasta Act, noting that no deviations from the LAMC had been requested for building height, parking, yards, or lot coverage.?AR 40.??The ZA stated that if no appeal was filed by November 7, 2013, a copy of the CDP would be sent to the Coastal Commission.?AR 38.??The decision also stated that if no appeal was filed with the Coastal Commission within 20 working days of the Coastal Commission?s receipt of the determination, the determination would be deemed final.??Ibid.

Because of a City clerical error, the City did not send the Notice of Permit Issuance (?Notice?) the Coastal Commission until almost three years later, on August 16, 2016.??AR 14, 910.??Project Developers did not know about this oversight.??AR 1264.

  1. Demolition and Construction

In February 2015, LADBS issued to the Project Developers a demolition permit, and the Project Developers completed demolition of the existing structures on the Project site.??AR 1, 241.??No one objected to the demolition.??AR 1256.??In May 2016, DBS issued the Project Developers building permits.??AR 1.

In early August 2016, construction of the Project commenced.??AR 241.??Oakwood neighborhood residents did not have advanced notice of the construction.??AR 324.??One neighbor described the unexpected construction work as a ?hostile takeover.???Ibid.??On August 2, 2016, Petitioner Hawk woke up to no running water.??Ibid.??She later learned that a 60-foot crane brought in by the Project Developers to aid in the Project?s development had broken through Brooks Avenue?s asphalt and ruptured a water line beneath the asphalt.??AR 324, 593.??The resulting damage created a giant sink hole in Brooks Avenue and sent a river of water down the street causing property damage.??AR 324, 599.??It also deprived certain residents of indoor plumbing for 14 hours.??AR 599.

The Project Developers also lined Brooks Avenue with ten double-wide semi-trailer trucks loaded carrying 20 pre-fabricated housing modules.??AR 324.??Because of the trucks, some residents could not leave their homes, some were re-routed in their efforts to drive to their homes, and some had their cars towed because they were parked in the street.??Ibid.??Some neighbors looked on and became concerned when they observed the crane lift each of the 20 pre-fabricated modules, one by one, in the middle of the block.??AR 324.

Around 4 p.m. on August 2, 2016, Marvin Ponce, a Project contractor, was directing traffic to assist with the Project?s construction.??AR 324.??Ponce was shot and killed.??Ibid.??Construction work continued two days later with armed guards walking up and down the street.?AR 598.

  1. Commission Staff Letters

Coastal Commission staff became alerted to the Project?s existence from nearby residents and the Los Angeles Times? coverage of the events.??AR 1313.??On August 8, 2016, Commission staff visited the Project site.??AR 1249.

On August 11, 2016, Commission staff sent the City and the Project Developers a letter stating that it did not receive a notice from the City of its actions on the local CDP.??AR 15.??The staff letter noted that the City?s action on the local CDP cannot be deemed final until 20 working days have expired from the date that the Coastal Commission receives the City?s final determination on the CDP.??Ibid.??The letter concluded that any development already undertaken for the Project had been performed without a valid CDP.??Ibid.??The Coastal Commission informed the City that it should immediately rescind all building permits and prevent further development of the Project.?AR 15-16.

On August 16, 2016, the City sent the Coastal Commission a Notice of Permit for the first time.??AR 14.??The Coastal Commission received the Notice of Permit on August 19, 2016.??AR 1313.??The Notice of Permit erroneously stated that the CDP had been issued on October 23, 2016.??AR 14.[5]

On August 22, 2016, Commission staff sent the Project Developers notice that a period to appeal the City?s issuance of the CDP had commenced and would terminate on September 19, 2016.??AR 234.

On September 6, 2016, Commission enforcement staff sent a letter to the Project Developers by regular and certified mail entitled ?Notice of Violation of the California Coastal Act?.??AR 317.??The letter stated that its enforcement staff confirmed that development on the Project continued after transmission of the Commission?s August 11 letter.??Ibid.??Acknowledging a preference in avoiding a formal enforcement action, such as issuance of a cease and desist order, the letter stated that the Project Developers must stop all development on the property until they obtained a final, valid CDP.??AR 317-18.

On September 8, 19, and 30, 2016, Coastal Commission enforcement staff communicated with the Project Developers? representatives telephonically.??AR 1249.??In each instance, Commission staff indicated that work on the Project should stop.??Ibid.??Enforcement staff asked the City to revoke the building permits.??Ibid.??The City did not do so.??Ibid. However, in October 2016, the Project Developers voluntarily complied and stopped further construction on the Project.??Ibid.??By that point, approximately 90% of total construction had been completed.??AR 1264.

  1. The Appeals

On September 19, 2016, Petitioners appealed the City-issued CDP.??AR 180, 184.??So too did the Coastal Commission?s Acting Executive Director.??AR 230-232.??The appeals cited,?inter alia, problems with the Project?s mass and scale, its consistency with the surrounding neighborhood?s character, and possible prejudice to the City?s ability to prepare a?LCP.??AR 1412, 1416-19.

  1. The Commission Staff Reports

On October 11, 2016 and November 9, 2016, Coastal Commission staff met with the Project Developer?s representatives and advised them that the Project did not appear to be consistent with the Coastal Act or the previous Commission-approved projects in the area.?AR 1338.??Staff requested that the Project Developers consider alternative designs or at least acknowledge whether alternative designs were feasible given the modular design of the structures.??Ibid.??On October 24, 2016, Real Party Lighthouse sent the Coastal Commission a letter stating that it was ?working on some ideas? after discussion with the neighbors, and it submitted revised plans to the Coastal Commission.??AR 685-700.

On November 23, 2016, the Coastal Commission issued a Staff Report on the appeal of the City-issued CDP.??AR 235-365.??In response to Lighthouse?s revised plans, on December 7, 2016 Commission staff issued an Addendum to the Staff Report for the December 8, 2016 Coastal Commission hearing.??AR 366-544.??Both reports recommended that the Coastal Commission (1) find that the appeals of the City-issued CDP raised a substantial with respect to the Project?s conformity with the Coastal Act and (2) conduct a?de novo?review and deny the Project?s CDP.??AR 237;?see?AR 366-71.??The staff report specifically recommended that the Coastal Commission find that the mass and scale of the Project did not conform to the neighborhood character and thus conflicted with several Coastal Act provisions and the Venice LUP.??AR 261-62.

  1. Ex Parte Commissioner Communications

On November 29, 2016, Commissioner Martha McClure (?McClure?) disclosed that she had an?ex parte?communication with the Project Developers and their representatives.??AR 1239.??McClure disclosed that she received a briefing from the Project Developers? representatives in which they went over a briefing booklet previously provided to Coastal Commission staff.??Ibid.??They reviewed the timeline of events leading to the appeals, the representatives explained the City?s ?noticing error?, the representatives provided her with photographs of the Project site, the Brooks Avenue neighborhood, and the surrounding Venice community, the representatives explained how the proposed Project was consistent with the area?s scale and character, and the representatives offered her many examples of multi-story development in the Project?s immediate vicinity.??Ibid.??According to McClure, the applicant ultimately requested that the Coastal Commission approve the Project as proposed with recent modifications.??Ibid.

On November 30, 2016, Commissioner Roberto Uranga (?Uranga?) disclosed that he also had an?ex parte?communication with the Project Developers and their representatives.??AR 1240.??Uranga disclosed that he visited the Project site and received a briefing from the Project Developers per a previously produced briefing booklet.??Ibid.??Like with McClure, the Project Developers provided Uranga with a timeline of events leading to the appeals, explained the City?s ?noticing error,? provided him with photographs, explained how the Project was consistent with the surrounding area?s scale and character, and offered him examples of multi-story development in the immediate vicinity of the Project.??Ibid.

On December 1, 2016, Petitioner Rudisill emailed Erin B. Chalmers (?Chalmers?), Senior Staff Counsel for the Coastal Commission, requesting an?ex parte?communication with a couple of the Commissioners.??AR 947.??Chalmers responded that?ex partecommunications are improper for Coastal Act enforcement/violation matters, including where there is significant overlap between a CDP issuance and an enforcement action or violation.??Ibid.??Chalmers recommended that Rudisill not have an?ex parte?communication with Commissioners because there was a significant overlap between the appeal and the enforcement action alleged because the entire development is unpermitted and violates the Coastal Act.??Ibid.

On December 7, 2016, Rudisill stated that she noted two written?ex parte?disclosures by Commissioners and asked whether the same rules apply to applicants as appellants.??AR 946.??If so, she wanted to know the consequences of those?ex parte?communications.??Ibid.

On December 8, 2016, Chalmers responded that the same rules apply to applicants and appellants.??AR 946.??Depending on the topics discussed during the?ex parte?communication, the Commissioners who engaged in them may not be able to participate in a potential future enforcement action.??Ibid.??Chalmers noted that the communications would not affect the Commissioner?s present ability to participate in the appeal hearing.??Ibid.

  1. The Commission Hearing

On December 8, 2016, the appeal was heard by the Coastal Commission.??AR 1245-1302.??The two?ex parte?written disclosures were noted.??AR 1255-56.??Additionally, Commissioner?Dayna Bochco (?Bochco?)?stated that he received an unsolicited email from a local realtor, Tammy Pardee.??In it, Ms. Pardee stated that the Project Developer is a client of hers and that ?[this] appeal is part of the small group of residents who just oppose everything?. Many Venice residents like the continued improvement of Venice and?this project is not out of scale.??Many two to three story homes on there (sic.)?and seems this is just a revenge since no resident expressed concerns since approval?..??AR 1256.

The Commissioners found a substantial issue with the CDP which initiated a?de novo?review.??AR 1256.??After discussion, the Coastal Commission voted nine to two to approve a CDP for the Project, thereby rejecting the staff?s recommendation.??AR 1300-01.

On April 21, 2017, Commission staff issued a Staff Report of Revised Findings in support of the prevailing Commissioners? decision approving the Project.??AR 1307-1456.??The Revised Findings determined that the Project changes which the Project Developers proffered were sufficient to bring the Project into conformity with Venice?s LUP and the Coastal Act.??AR 1341, 1346-47.??The Revised Findings also determined that there existed other approved projects of similar size in the area such that the Project was not out of character for the neighborhood.??AR 1334, 1337-38.??On May 8, 2017, Commission staff issued an Addendum to the Revised Findings.?AR 1457-66.

On May 12, 2017, the Coastal Commission held a hearing to adopt the Revised Findings and did so.??AR 1514-26, 1529.

  1. Analysis

Petitioners seek a writ of mandate on several grounds, the most prominent of which are that (1) the Coastal Commission?s Revised Findings are an impermissible?post hoc?rationalization of the Commissioners? decision, (2) the Coastal Commission?s decision is not supported by substantial evidence, and (3) the Coastal Commission engaged in unfair?ex parte?communications.

  1. Ex Parte Communications

Petitioners contend that they were denied a fair hearing when the Commissioners at once engaged in?ex parte?communications with the Project Developers and then Petitioners were prevented from doing so.??Pet. Op. Br. at 17.??Petitioners contend that the?ex partecommunications were intended to garner sympathy for the Project Developers, and the Commission?s deliberations should that they were effective, underscoring the unfairness of the hearing.??Pet. Op. Br. at 19.

?While the state?s administrative agencies have considerable leeway in how they structure their adjudicatory functions, they may not disregard certain basic precepts.??One fairness principle directs that in adjudicative matters, one adversary should not be permitted to bend the ear of the ultimate decision maker or the decision maker’s advisors in private.???Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd.,?(2006) 40 Cal.4th 1, 5.??The fairness of a hearing is a question of law.??Clark v. City of Hermosa Beach, (1996) 48 Cal.App.4th?1152, 1169.

The Coastal Act requires that the Commission conduct its affairs in an ?open, objective, and impartial manner free of undue influence and the abuse of power and authority.????30324.??To this end, no Commissioner shall conduct an?ex parte?communication unless the Commissioner fully discloses and makes public the?ex parte?communication by providing a full report of the communication to the executive director within seven days after the communication or, if the communication occurs within seven days of the next commission hearing, to the commission on the record of the proceeding at that hearing.???30324(a).??The Commissioner must disclose,inter alia, the identity of all persons present during the communication and a complete, comprehensive description of the content of theex parte?communication.???30324(b)(1)(B)(iii), (C).??If a violation of section 30324 occurs?and?a Commission decision may have been affected by the violation, an aggrieved person may seek a writ of mandate from a court requiring the Coastal Commission to revoke its action and rehear the matter. ?30328;?see also?Mathew Zaheri Corp. v. New Motor Vehicle Bd.?(1997) 55 Cal.App.4th 1305, 1318 (failure to promptly disclose substance of?ex parte?communication and to allow other party to respond warrants reversal if misconduct was prejudicial or intentional and heinous).

Three Commissioners disclosed three?ex parte?communications: McClure, Uranga, and Bocho.??AR 1255-56.??Commissioner Luevano was forwarded an email in which the Project Developers argued that the ?City screwed up? and the appeal was filed after the modules have been installed.??AR 1242.??This email was not disclosed prior to or during the hearing.??See?AR 1255-56.??Pet. Op. Br. at 17-18.[6]

Plainly, the Coastal Act authorizes?ex parte?communications if they are adequately disclosed.??One-sided communication is not necessarily unfair.??There are legitimate reasons why a Commissioner may permit a developer to make an?ex parte?communication and yet not permit an appellant to do so.??The developer has a property interest in the project and may have unique information or facts bearing on the decision.??For example, legitimate?ex parte?communication may include a visit to a project site, such as the one Commissioner Uranga conducted.

Aware that two Commissioners disclosed?ex parte?communications, Petitioner Rudisill asked at the December 8, 2016 hearing whether the procedure had been handled properly since Petitioners had been told that?ex parte?contact should not occur, and yet the Project Developers were permitted contact.??AR 1279.??Petitioner Rudisill did not inquire why the Commissioners engaged in?ex parte?contact with the Project Developers; she only complained about a process where Petitioners had been discouraged from doing so.??AR 1279.

In response to Petitioner Rudisill, the Commission?s attorney explained at the December 2016 hearing that?ex parte?communication with Commissioners is discouraged where a CPD approval overlaps with an enforcement action, as this case did.??AR 1279-80.??In effect, the attorney told the Commissioners that they should not have had?ex parte?communications for the CDP approval because they may be unable to participate in a future enforcement action.??Given that the disclosures occurred, however, there was nothing wrong with those Commissioners participating in the CDP vote.??AR 1280.

Petitioners point to nothing in the attorney?s statement that was erroneous.??Rather, they rely on the unfairness of one side making?ex parte?contact where the other side is discouraged from doing so.??Petitioners do not dispute the adequacy of the disclosures by Commissioners McClure, Uranga, and Bocho, and do not contend that Commissioner Luevano?s failure to disclose by itself may have impacted the Commission?s decision.??Instead, they argue that?fairness principles dictate that both parties should have had an equal ability to communicate?ex parte.

It is unfortunate that the Commission?s attorney discouraged Petitioners from making?ex parte?communications, yet two Commissioners had voluntary briefings from the Project Developers.??(The fact that two other Commissioners received unsolicited?ex parte?contacts from third parties favoring the Project is irrelevant to this fairness issue.)??The question is whether the briefings of McClure and Uranga were prejudicial.

As the Commission argues (Comm. Opp. at 11), Petitioners have shown no prejudice.???30328.??The only viable source of prejudice would be that Petitioners were precluded from presenting evidence or arguments to individual Commissioners that could have swayed their votes.??But Petitioners make no showing about what they would have said if given?ex parte?contact.??They complain only that the Project Developers??ex parte?communications may have swayed the Commission?s vote.??The 11-2 vote shows to the contrary.??The Project Developers? evidence concerning the City?s failure, the three-year delay, and 90% Project completion was presented to Commission staff and used at the hearing.??Petitioners had the opportunity to present documentary and other evidence to the contrary.?There is no evidence that the Commission would have voted any differently had Petitioners been permitted?ex parte?communication.

Petitioners argue that a showing of actual bias by the Commissioners is unnecessary to prevail on a section 30320 claim.??Reply at 14.?The test is whether the hearing was fair in appearance and in fact, and mandamus is appropriate where the Commission decision may have been affected by the violation.???30328.??According to Petitioners, the Commission?s deliberations clearly reflect sympathy for the Project Developers? complaint raised in the?ex parte?communications, and the four Commissioners who received?ex partecommunications also participated heavily in the Commission?s deliberations.??Reply at 15.

The?ex parte?communications do not show a level of unfairness that would warrant granting the Petition.??It is true that Commissioner McClure received a briefing from the Project Developers, disclosed it, and then argued in favor of approving the CDP in fairness to them.??AR 1292-92.??Commissioner Uranga, however, spoke only to refer to his?ex parte?communication disclosure, and he did not lobby in favor of the Project Developers.??AR 1291.??Given the 9-2 vote in favor of the CDP, the court cannot conclude both that Commissioner McClure was so infected by the?ex parte?communication that she could not be fair, and that her comments favorable to the Project Developers may have swayed eight other Commissioners to vote for the CPD.??Even if Commissioner McClure were disqualified, the vote would have passed comfortably.

?

  1. The Commission?s Revised Findings Are aPost Hoc?Rationalization

During the?de novo?hearing,?Commissioner Olga Diaz?s (?Diaz?)?opined that she did not want to perpetuate injustice by denying the CDP and thereby doling out a punishment to the Project Developers when the City committed the mistake: ?? I genuinely believe that the applicant seems to have everything he thought was the right thing to do.??So really if we?re going to be upset with anybody it?s the city of Los Angeles.??I don?t know how we remedy that, but it does feel like an injustice to take it out on the person who did genuinely seem to try to do everything right?.??[W]e also have to be practical and realists about what we?re doing here.???AR 1288.?She expressed a desire to threaten the City, but not punish the Project Developers.??AR 1289.

Commissioner Diaz also stated that she felt comfortable with ?what is there [for the Project]?.??If the Commission had a chance to start from scratch, there probably would be additional suggestions.??But the Commission had to be realistic, and it would approve something very close to the existing Project based on the approvals granted for other projects.??AR 1288-89.

Commissioner McClure stated: ?I agree that it was the City of L.A. that, not only did they drop the ball, they hid the ball?[If I were the developer], when I didn?t hear back from the City or the Commission that there was no problem?I would see that as green light go?It?s very problematic?.??For me, this is an after the fact because there was a gross error by the city of Los Angeles, and that error ? The applicant should not have to carry that entire burden themselves?. We can?t pretend that none of this affects it.???AR 1292-93.

Commissioner Luevano indicated a desire not to repeat others, but that she agreed with the comments about the City and Venice in particular.??AR 1294.??She mentioned a meeting with City Councilman Bonin and the need to ?light a fire somewhere.???Id.??She agreed that the Project Developers were not at fault, but she asked why it took from August 11 to late October for them to cease work.??AR 1294-95.??After receiving an explanation, Commissioner Luevano said she did not want to signal to developers that it is ok to keep working after being told not to do so.??Id.??With that said, she did not ?feel like this project is going to be drastically different from some of the other projects in this neighborhood?, a neighborhood which she knows very well because she used to live there.??AR 1296.

Commissioner Steve Kinsey (?Kinsey?) opined that the City would be responsible if the CDP were denied.??AR 1296.??He said that the Project Developers? voluntary offer of modifications would have to be made mandatory before he could support approval.??AR 1297.

Commissioner Randy Pestor (?Pestor?) stated that the ?issue of community character has been a big issue [in Venice CDP hearings], and that approval would ?encourage developers to do what they are doing now?.???AR 1297.??He faulted the Project Developers for not going to the Commission to see if the CDP had been submitted and said he could not support approval.??AR 1298.

Commissioner Bochco opined that the City does not care; ?they just give permits to anyone who asks.???AR 1298.???In this case, though, I think because there was such a long lag.??Three years, you really do expect that it?s been done right?.??Maybe [the Project Developers] should?ve been down and checking all the boxes and stuff, but I got to say, I really think that in this case, it?s so complicated with the dual jurisdiction.??Nobody knows half the time who?s doing what.??It?s just the little shell game.??I am going to support the amended motion once we got into doing so, but only for that reason.??If it wasn?t three years, if it was ? If the thing wasn?t built.??What is he supposed to do, tear it down? ?. There?s a term in the laws we know called equitable estoppel ?. [I]t feels like it would be inequitable to go forward with the staff recommendation.???AR 1298-99.

Commissioner Bochco said that under the set of rules ?we all want to live by?we want these houses to conform to the character of the community?.I also feel, because [the Project Developers] made changes based on the [VNC] meeting?and there are a lot of qualities to these buildings that we would?ve asked for.??The setback of the second story or third story????Therefore, he would support an amended motion including the special conditions presented by the Project Developers.??AR 1299.

All CDP decisions of the Commission shall be accompanied by findings of fact, written conclusions, and reasoning about consistency with the Public Resource Code.??14 CCR ?13096(a).??The Commission?s decisions may sometimes differ from Commission staff recommendation.??14 CCR ?13090(d).??If the Commission?s actions are consistent with the staff recommendation, the actions shall be deemed to be taken on the basis, and to have adopted the reasoning, of the staff report, as modified at hearing.??14 CCR ?13096(b).??If the Commission?s actions are substantially different than that recommended in the staff report, the prevailing commissioners shall state the basis for their decision in sufficient detail to allow staff to prepare a revised staff report with proposed revised findings that reflect the action of the Coastal Commission.??14 CCR ?13096(b).??The Commission must approve the revised findings at a public hearing, where the Commission solely addresses whether the revised findings reflect the action of the Commission.??14 CCR ?13096(c).??Findings are not supposed to be a?post hoc?rationalization for a decision already made.???Bam, Inc. v. Board of Police Com’rs,?(1992) 7 Cal.App.4th 1343, 1346.

In?La Costa Beach Homeowners’ Assn. v. California Coastal Com., (?La Costa?)?(2002) 101 Cal.App.4th 804, the appellant complained that the Coastal Commission?s revised findings were?post hoc?rationalization of a decision that was not otherwise supported.??Id. at 819.??The?La Costa?court disagreed, stating that the revised findings ?did nothing more than reflect in writing the rationale that the Commissioners and staff articulated on the record at the April 12, 2000 public hearing.???Ibid.

Petitioners contend that the Commission?s Revised Findings are an improper?post hoc?rationalization for its decision which does not accord with the rationale that the Commission articulated at the hearing.??Pet. Op. Br. at 15.??They note that the Commission staff prepared a detailed report for the December 8, 2016 hearing indicating why the evidence supported both a substantial issue and to deny the CDP upon?de novo?review.??Id.??Although the Commissioners at the hearing explained their rationale for granting the CDP, the rationale had nothing to do with the legal standard for approval under the Venice LUP and Chapter 3 policies.??Id.??The Commissioners admitted that they approved the Project only because of the City?s mistake and their belief that the Project Developers should not be punished.??Id. at 15-16.

Thus, Petitioners argue that the prevailing reason for providing the CDP was not tethered in the Venice LUP or Chapter 3, but in perceived unfairness to the Project Developers.??The Revised Findings crafted after the decision were an attempt to meet the legal standards, but they had little to do with the prevailing Commissioners? actual decision.??Id. at 17.??As such, the Revised Findings did not reflect the decision actually made, which was based on City error and unfairness to the Project Developers, but not the legal standard for a CDP.??Id. at 17.

When the Commission deviates from staff recommendation, the prevailing Commissioners must state the basis for their decision in sufficient detail to allow staff to prepare a revised staff report with proposed revised findings that reflect the action of the Coastal Commission.??14 CCR ?13096(b).??The prevailing Commissioners? articulation of how the Project does or does not meet Coastal Act policies — not whether the Commissioners explicitly mention applicable laws or policies by name — is the material point.??Such articulation furnishes Commission staff with sufficient instruction to devise Revised Findings in accordance with 14 CCR section 13096(b).????That the Revised Findings explicate upon these principles is of little concern; 14 CCR section 13096(b) only contemplates that the Commissioners articulate the basis for their decision to deviate from staff recommendation ?in sufficient detail,? not in exact detail.

As Real Parties point out (Opp. at 11), the Coastal Commission?s articulated rationale at the hearing was not devoid of discussion of basic underlying Coastal Act principles.??Commissioner Diaz stated:???Everybody?s analysis had some value that I was able to pull from everything everybody said, but I am comfortable with what?s here? We would approve something very close to this, I think, based on approvals we?ve granted for other projects.??They don?t look that different than this.???AR 1288-89.??Commissioner Luevano opined: ?I don?t feel like this project is going to be drastically different from some of the other projects in the neighborhood.??I used to live in the neighborhood adjacent.??I know this area very well.???AR 1296.??Commissioner Bochco stated:???[The Project Developers] did make changes, and there are a lot of qualities to these buildings that we would?ve asked for.???AR 1299.

These excerpts target the fundamental issues of the case concerning character, mass, and scale: the sentiment that the Project is not ?drastically different? addresses visual compatibility and conformity with the Venice community and the sentiment that the Project shares ?a lot of qualities ? that we would?ve asked for? addresses the concern that approval of the Project would create an unfavorable precedent.

Despite these snippets, Petitioners are correct.??The prevailing Commissioners were required to state the basis for their action?in sufficient detail?so that staff could prepare revised findings that?reflect the action of the commission.???(Emphasis added).??The Revised Findings discuss other approved projects of similar size and conclude that the Project is not out of character with the neighborhood.?AR 1309, 1334-47, 1339.??They make no mention of the fairness and City fault that clearly was the basis of the prevailing Commissioners? decision.??For example, Commissioner Bochco stated that he would vote to approve the CDP ?for that reason? ? meaning because of the three-year delay.??The three-year delay by the City and fairness to the Project Developers may be relevant to the Commission?s decision ? Commission staff disagreed (AR AR 366-67) ? but it is not controlling.??The Commission cannot ignore the Chapter 3 and Venice LUP policies of character, size, and mass at issue.

The staff report concluded that Project is not visually compatible with the character of the surrounding neighborhoods with respect to scale, massing, and landscape.??AR 253.??The addendum to the staff report after the Project Developers? proposed changes stated that the changes were merely cosmetic and would not reduce the size, mass, and scale of development or make it compatible with the neighborhood.??AR 366.??The Revised Findings acknowledged that the Project Developers? modifications do not reduce the Project?s size, mass, and scale, but concluded that they make the Project align more closely with neighborhood character.??AR 1356.??According to the Revisde Findings, there are several homes in the surrounding area of similar character, and therefore the development is not out of character with the overall neighborhood.??Ibid.

Apart from Commissioner Luevano?s general comment about the neighborhood, there is nothing in the prevailing Commissioners? comments that supports this deviation from the staff report.??The Revised Finding?s insistence that ?consideration of this application by the Commission has been based solely upon the Chapter 3 policies of the Coastal Act? is disingenuous without an explanation why.?AR 1324.

The Commission argues that it is not a rubber-stamp for staff recommendations, and it may reject those recommendations and approve a CDP.??The Commission is not required to make its findings when it makes its decision to act, and it may do so afterwards.??Sierra Club v. California Coastal Commission, (2003) 107 Cal.App.4th?1030, 1047.??Comm. Opp. at 8-9.??This is true, but the Revised Findings must reflect the decision actually made by the prevailing Commissioners.??As Petitioners argue, there is little in the prevailing Commissioners? statements that explains why the character, mass, and size of the Project is consistent with the surrounding neighborhood.??Real Parties? suggestion that the prevailing Commissioners were relying on their evidence begs the question.??Real Opp. at 11.??There could be substantial evidence supporting the Project, but the prevailing Commissioners have to explain what it is and why it does.

Real Parties cite?Ocean Harbor House Homeowners Association v. California Coastal Commission, (2009) 163 Cal.App.4th?215, 245, as a case in which the staff report, although recommending a different result, provided ample evidence and explanation for the Commission?s decision to reject the staff recommendation.??Real Parties Opp. at 12-13.??Real Parties fail to show what evidence in the staff report supports the Commission?s approval of the CDP.[7]

In sum, Petitioners are correct that the Coastal Commission?s Revised Findings are an impermissible?post hoc?rationalization of the prevailing Commissioners? decision.??As such, the Commission?s decision is not supported by adequate findings.[8]

  1. The Revised Findings Are Not Supported by Substantial Evidence

Petitioners argue that the Coastal Commission abused its discretion in approving the CDP because the only evidence presented by Commission staff for the December 8, 2016 hearing showed that the Project failed to conform to the Venice LUP and the Coastal Act.?Pet. Op. Br. at 10.??Petitioners cite to the Commission staff?s initial November 2016 report.??Pet. Op. Br. at 10.

As Petitioners point out, an abuse of discretion is established if the agency did not proceed in a manner required by law, if the decision is not supported by the findings, or the findings are not supported by the evidence.??CCP ?1094.5(b).??Id.??Petitioners? burden is to demonstrate that the Coastal Commission?s findings are unsupported by substantial evidence?in light of the whole record.??Young v. Gannon, (2002) 97 Cal.App.4th 209, 225.

Venice LUP Policy I.E.2 requires new development in the Venice Coastal Zone to ?respect the scale and character of community development?, and buildings with a scale compatible with the community (with respect to bulk, height, buffer and setback) shall be encouraged.??AR 1014-15.??Venice LUP Policy I.E.3 encourages varied styles of architecture that maintains the neighborhood scale and massing.??AR 1015.??Venice LUP Policy I.E.4 discourages large-scale land acquisition and clearance in favor of rehabilitation of single-family dwellings.??AR 1015.??The Coastal Act requires development to be sited and designed to be visually compatible with the character of the surrounding area.???30251.??The Coastal Act also requires that new development, where appropriate, protect special communities and neighborhoods that are popular visitor destination points because of their unique characteristics.???30253(e).

The initial staff report?s summary provides two justifications for recommending that the CDP be denied.??First, the staff noted visual incompatibility:???The development ? is not visually compatible with the surrounding development, which consists primarily of one-story single family homes (including three successive one-story homes to the east, two successive one-story homes to the west, and five successive one-story homes across the street[)].??There are several two-story and three-story homes in the vicinity of the proposed homes, but those structures are sited on individual parcels rather than on four narrow parcels side-by-side those structures are not as massive as viewed cumulatively from the sidewalk, and they feature articulation including varied and stepped back rooflines.???AR 236-37.

Second, the Commission staff report cited to the Venice community.??AR 237.??It notes that the Project ?would adversely affect the special community of Venice, which is a popular visitor destination point for recreational uses.???AR 237.??The report notes the problem of precedent for unarticulated development: ?Approval of the proposed development would establish a precedent for massive, unarticulated development that would adversely affect the special community of Venice and would prejudice the ability of the City of Los Angeles to prepare a certified Local Coastal Program for Venice.???AR 237.

In support of the staff report, Petitioners point to photographs of the Project and surrounding homes.??See, e.g., AR 285.??Petitioners state that the Project, as demonstrated by the photographs, is grossly out of character with the surrounding neighborhood as its three-story mass juts high above them.??Petitioners note the appeal statement from community residents.??AR 286-87.??The residents assert that the Commission must impose changes to the Project because (1) the square footage of the Project is over four times greater than the square footage of the median home on Brooks Avenue, (2) 96% of the lots on Brooks Avenue are one and two story structures as opposed to the Project?s three, and (3) the Project does not fit the character of Brooks Avenue or Venice?s architectural diversity as the homes are block-like and uniform.??AR 286-87.??The residents asked that the third story be removed from each structure.??AR 286.??Pet. Op. Br. at 11.

Commission staffer Steve Hudson stated at the December 2016 hearing that the Commission ?has to put blinders on? with respect to the fact that the Project has almost been completed when analyzing the Project?s conformance with the standard in Chapter 3 and the Venice LUP.??AR 1287.??For several years, the Commission had asked developers not to build to the maximum height limit and for more articulation in design so that upper stories have some kind of setback.??AR 1287.??With respect to community character, there is always a mix of one, two, and three-story structures, but the question is what is in the immediate area.??AR 1287.??On Brooks Avenue, 70% of the houses are one-story, 20% are two-story, and 10% are three-story.??AR 1287.??Several of the three-story structures do not max out in height and have more articulation with step-back design.??AR 1288.??Pet. Op. Br. at 11.

The Commission?s Executive Director?s appeal statement also espoused a belief that the CDP ?authorizes four three-story structures that are out of scale with the neighborhood and visually incompatible with the character of the surrounding area.??The local [CDP] does not include adequate findings for consistency with Coastal Act section 30251 or the relevant policies of the certified Land Use Plan.??AR 321.??Pet. Op. Br. at 11.

The Commission and Real Parties rely on the Commission?s Revised Findings.??Comm. Opp. at 7; Real Parties Opp. at 6-7.[9]??The Revised Findings? summary declares: ?To avoid adversely impacting the character of the Community, the applicant proposed to revise the plans to provide greater articulation, less massing along the front fa?ade between structures, and additional vegetation.???AR 1309.?The Findings section clarifies that the Project Developers will ?reduce the height of top floor privacy walls, utilize a more neutral color palate, change the shape of the doors on the middle units, and plant a California Sycamore tree in each front yard.???AR 1332.

With respect to visual compatibility, the Revised Findings found that the Project is ?not substantially visually distinct from other structures on Brooks Avenue or Lincoln Boulevard with respect [to] the scale, massing, and landscape of existing residential neighborhoods? because (1) about 10% of buildings on the block are three stories (AR 1337) and (2) the Project Developers assented to (a) reducing the height of the top floor walls, (b) utilizing a neutral color palette, and (c) imposing stepbacks to the front facades. AR 1336, 1339.??The Revised Findings noted that the design of the four homes as proposed is not drastically different from other projects previously announced in the same neighborhood.??AR 1336, AR 1383-92.??The Revised Findings concluded that the proposed three-story structures ?are not drastically different than some of the other structures in the neighborhood.???AR 1334.

The Revised Findings articulate the wrong standard, which is not whether the Project?s structures are ?not drastically different,? but whether they are visually compatible with the neighborhood and the particular block on which they are sited.??The Commission staff addendum concluded that the Project Developers? changes concerning the top floor wall height, neutral color, and front fa?ade setback were cosmetic in nature, and would not reduce the size, mass, and scale of the development or make it architecturally compatible with the neighborhood?s scale and massing.??AR 366.??While there is evidence that 10% of the buildings on the block are three stories,[10]this does not impact the evidence that 70% of the houses are one-story and 20% are two-story, and the three-story structures do not max out in height and have more articulation with step-back design.??AR 1287-88.??Nor do the modifications of changing the shape of the front doors and color palette have a great deal to do with the initial visual incompatibility based on size and mass.

Real Parties provide more specific evidence.??They cite residential structures at 804-12 Brooks Avenue, only 144 to 200 feet away from the Project site of 742-44 and 746-48 Brooks.??Real Parties Opp. at 9.??See?AR 1502.??Other homes on Brooks Avenue have a smaller front yard setback than the Project.??Id. Still other three-story or 25-foot high residences are reasonably close to the Project site.??Id.[11]

The court acknowledges that it does not have a full picture of the pertinent 800 block of Brooks Avenue, or of the nearby blocks.??It is also true that larger structures may be more visually acceptable when they are located at the end of a block near a busy street, and the court has insufficient information on this issue.??Yet, a picture tells a thousand words, and the pictures the court does have show a massive three-story structure that is not compatible with the surrounding homes.??The fact is that 90% of the homes on Brooks are one and two-story (AR 1287), and the remaining 10% three-story structures are either at or near the end of a block or are less massive than the Project.??Anyone driving by the Project?s structures would be moved to say: ?How did they permit that to be built on this block???The Project?s structures are not visually compatible with the neighborhood because they are too massive in size and scale.

The same analysis is true for community character.??A visually incompatible home does not align with the community?s character.

Finally, the Revised Findings reason that approval of a CDP for the Project does not set a precedent for unarticulated development because ?each project is unique and must be considered in the context of its specific location and facts.???AR 1337.??This reasoning is inadequate.??In any zoning case, the developer relies on other approved projects to get a foot in the door and say ?me too.???Indeed, the Revised Findings expressly rely on other project approvals in an attempt to support the CDP for this Project.

In sum, the administrative record lacks substantial evidence to support the Commission?s Revised Findings for visual compatibility, community character, and precedent for unarticulated development.??It appears that the City approved the Project because its Small Lot Ordinance generally favors increasing the density of lots within City boundaries.??But it cannot do so in conflict with its own Venice LUP.??Based on the existing evidence, no reasonable person would have reached the Commission?s decision.

The court cannot say that the Commission could never approve the Project?s mass, scale, and visual impact because it has some uncertainty about the appearance of the surrounding area.??Consequently, additional evidence would have to be presented for the Commission to approve the CDP for this already built Project; the existing evidence is not substantial.

In this regard, the court tends to agree with the prevailing Commissioners that they should not decide the CDP in a vacuum of Venice LUP policies and Chapter 3 without appreciating the City?s failure and the Project Developers? innocence.??Some consideration also should be given to the fact that no one objected to the Project at the City level of approval.??On the other hand, while the court does not agree with Commissioner Pestor that the Project Developers should be faulted for not checking with the Commission for final CDP approval (AR 1298), he is correct that they should have been aware of LUP policies in planning their Project in the first place.??AR 1297.[12]

  1. Conclusion

The Petition for writ of mandate is granted.??A writ shall issue to the Commission to set aside the CDP approval and take such further action as may be required in its discretion.

Petitioners? counsel is ordered to prepare a proposed judgment and writ, serve them on opposing counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections.??An OSC re: judgment is set for November 8, 2018 at 9:30 a.m.

[1]?The footnotes in Real Parties? opposition do not comply with the 12-point type required by CRC 2.104.??The court has exercised its discretion not to read or consider the footnotes.

[2]?All further statutory references are to the Pub. Res. Code unless otherwise stated.

[3]?Petitioners request judicial notice of the Venice LUP (Ex. 1).??Petitioners? request is granted.??Evid. Code ?452(b).

Project Developers request judicial notice of a memorandum from the Coastal Commission?s Acting Executive Director to the Commissioners and Senior Management regarding ?Commission Staff Procedures for Handling Ex Parte Communication Disclosures? (Ex. A).??Not every letter or memorandum authored by an agency is an official act.??The request is denied.??Evid. Code ?452(c).

[4]?The Coastal Commission states that the only standard of review on appeal is Chapter 3 of the Coastal Act (AR 242), and that Venice LUP is only ?used as guidance?.??AR 243; Comm. Opp. at 7.??This position is inconsistent with section 30600.5(c), which provides: ?Notwithstanding any other provision of this division, after delegation of authority to issue coastal development permits pursuant to subdivision (b), a coastal development permit shall be issued by the respective local government or the commission on appeal, if that local government or?the commission on appeal?finds?that the proposed development is?in conformity with the certified land use plan.??(Emphasis added.)??This plain language requires the Commission to follow the Venice LUP?s policies.??Real Party agrees.??Real Party Opp. at 5-6.

[5]?The City sent a second Notice of Permit with a corrected date on September 9, 2016.??AR 3, 240-41.

[6]?According to the Commission, Commissioner Mary Luevano (?Luevano?) ignored this email and disclosed it after the December 8, 2016 hearing.??AR 12.

[7]?Neither the Commission nor Real Parties suggest that the May 12, 2017 Commission hearing approving the Revised Findings can support the prevailing Commissioners? basis for deviation from the staff report.??Nor could they so argue.??The only issue at the May 12 hearing was whether the Commission believed that the Revised Findings accurately represent the ground for the decision made.??AR 1525.??No additional basis for granting the CDP could be articulated to support the Revised Findings.

[8]?Because the Revised Findings do not reflect the prevailing Commissioners? decision, the court need not address Petitioners? additional arguments that the Revised Findings are inadequate because they (1) do not expressly address the Project?s conformity with the mass and scale of the neighborhood, and (2)?lack an analytical route bridging the Project?s changes and the decision that the changes result in an adequate level of scale and mass.??Pet. Op. Br. at 12-15.

[9]?The Commission and Real Parties argue that Petitioners fail to rely on the entire record and presents a selective analysis of its staff reports.??Comm. Opp. at 6; Real Parties Opp. at 10.??The Commission does not show what evidence Petitioner left out.??While Real Parties do so, Petitioners adequately rebut this argument.??See?Reply at 13.

[10]?The Commission?s opposition relies on Exhibit 6, which shows three Commission-permitted projects in the ?surrounding area?.?These projects are apparently within ? mile, which is much too far to ensure visual compatibility.??AR 1390-92.

[11]?Petitioners dispute this setback evidence as not based on the hand measurements used in the record.??Reply at 11, n.7.??Petitioners also argue that all but two of the two and three-story structures cited as comparable were approved through CDP waivers and not by the Commission.??Reply at 13.??The court fails to understand why this bears on visual compatibility.

[12]?The Commission purports to address contentions concerning the appeal process that are raised in the FAP but not addressed in the Petitioners? opening brief.??Comm. Opp. at 13-15.??There is no need to discuss these issues, which have been waived.