REA Enterprises v. California Coastal Zone Conservation Commission

STEPHENS, Acting P.J.

This is an appeal from an order granting the issuance of a peremptory writ of mandamus directing appellants, the California Coastal Zone Conservation Commission, etc., et al. ("State Commission"), to set aside its ruling denying a development permit to respondent, REA Enterprises, etc. ("REA") and directing the South Coast Regional Commission ("Regional Commission") to deliver the permit it previously had issued to REA.

The sole issue presented in this appeal involves interpretation of the California Coastal Zone Conservation Act of 1972 ("Coastal Act") (Pub. Res. Code, Div. 18, §§ 27000-27650): Upon an appeal from a decision rendered by the Regional Commission approving a coastal development permit, does a tie vote by the State Commission constitute an affirmation of the Regional Commission's decision, or, to say it in a different way, does a tie vote by the State Commission result in the denial of the permit?

REA initiated this action pursuant to Public Resources Code section 27424 [1] seeking judicial review of the State Commission's decision denying REA a coastal zone development permit pursuant to section 27400 to construct a 153-unit…

I dissent.

The conclusion reached by the majority is based on two erroneous premises. The first is that upon the filing of a notice of appeal 1 from the decision of the Regional Commission, that decision becomes a nullity. The second is that the tie vote by the membership of the State Commission constitutes action.

Stripped of its embellishments, appellant’s circular argument goes like this: The act provides that on appeal there shall be a de novo hearing in the same manner and vote as the Regional Commission hearing. A hearing de novo is a new hearing, thus the decision of the Regional Commission is a nullity. Because the Regional Commission decision is a nullity and the word “shall” is mandatory, the State Commission is required to cast at least “seven votes for the issuance of a permit.” Since there was no majority vote by the State Commission for issuance of the permit, there in effect was a denial. A denial is an action taken. Therefore neither California Administrative Code, title 14, section 14000, 2 nor Public Resources Code section 27423, subdivision (b), 3 applies.

Appellant’s argument is valid only if the Regional Commission’s decision becomes a nullity upon the…

This is an appeal from an order granting the issuance of a peremptory writ of mandamus directing appellants, the *601 California Coastal Zone Conservation Commission, etc., et al. (“State Commission”), to set aside its ruling denying a development permit to respondent, REA Enterprises, etc. (“REA”) and directing the South Coast Regional Commission (“Regional Commission”) to deliver the permit it previously had issued to REA.

The sole issue presented in this appeal involves interpretation of the California Coastal Zone Conservation Act of 1972 (“Coastal Act”) (Pub. Res. Code, Div. 18, §§ 27000-27650): Upon an appeal from a decision rendered by the Regional Commission approving a coastal development permit, does a tie vote by the State Commission constitute an affirmation of the Regional Commission’s decision, or, to say it in a different way, does a tie vote by the State Commission result in the denial of the permit?

Procedural Background

REA initiated this action pursuant to Public Resources Code section 27424 1 seeking judicial review of the State Commission’s decision denying REA a coastal zone development permit pursuant to section 27400 to construct a 153-unit…