Petition for Writ

Tentative Ruling: Petition for Writ of Mandate is DENIED.

NBMC §17.60.060(E) does not exempt a person from the requirements of NBMC§17.35.020(F)(3).

NBMC §17.35.020(F)(3) states:

“F. Encroaching Piers and Floats. In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon:

1. Any change in type of existing use of the piers and floats;

2. Any change in type of existing use of the abutting upland property owned by the permittee;

3. Any change of existing ownership of the abutting upland property owned by the permittee or upon the death of the permittee.”

Respondent argues Petitioner must apply for a new permit because (a) the commercial pier and floats encroach in front of abutting upland property owned by others, and (b) there has been a change of existing ownership of the abutting upland property owned by the permittee. Petitioner argues he is exempt from §17.35.020(F)(3) by virtue of NBMC §17.060.060(E) which states:

NBMC §17.060.060(E)

“E. Commercial uses provided under this Title 17 are exempt from any provision requiring involvement of the owner or long-term lessee of an abutting upland property.”

First, a court should examine the actual language of the statute. (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238.)

Section 17.060.060(E) is no model of clarity. It is found in Chapter 17.60 entitled Harbor Permits and Leases. Section 17.60.060 deals with “Public Trust Lands”, so subsection (E) discussing commercial uses, read in conjunction with the entire section, is odd.

In examining the language, the courts should give to the words of the statute their ordinary, everyday meaning. (Halbert’s Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal.App.4th at p. 1238.)

Here, it is impossible to discern what “requiring involvement of the owner or long-term lessee” means, or more specifically “requiring involvement.” Does filling out an application require involvement? How could the owner of an abutting upland property not be required to involve him/herself in applying for a commercial pier permit?

If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. (Halbert’s Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal.App.4th at p. 1239.) Unfortunately, the language at issue here is riddled with uncertainty and therefore cannot control.

If the meaning of the words is not clear, courts must take the second step, and refer to the legislative history. (Halbert’s, supra, 6 Cal.App.4th 1233, 1239.) No legislative history provided here. Rather, Respondent apparently amended the ordinance after this suit was initiated. “The law is well established that although construction of a statute is a judicial function, where a statute is unclear, a subsequent expression of the Legislature bearing upon the intent of the prior statute may be properly considered in determining the effect and meaning of the prior statute.” (Tyler v. State of California (1982) 134 Cal.App.3d 973, 977.)

Here, Ordinance 2013-27 of the Newport Beach City Council, adopted on December 14, 2013, states: “Commercial uses provided under the Title 17 are exempt from any provision requiring involvement of the owner or long-term lessee of an abutting upland property. This Subsection’s sole purpose is to allow a person to apply for a commercial pier permit or lease in front of or encroaching upon abutting upland property not owned or leased by the person applying for the permit.”

As framed, this revision is still confusing. If the lawmakers were trying to suggest that property owners to whom a commercial pier encroaches in front of do not need to take any action to assist in the application/transfer etc. of a commercial pier permit, that was certainly not made clear.

However, a staff report accompanying the ordinance makes clear that “NBMC Subsection 17.60.060(e) does not, and was not intended to, exempt a person from compliance with NBMC Subsection 17.35.020(F). (RFJN, Exh. B.)

The final step– one which should only be taken when the first two steps have failed to reveal clear meaning– is to apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable. (Halbert’s, supra, 6 Cal.App.4th at p. 1239.) Here, the Court is not confident it can make any interpretation of section 17.60.060(E) workable and reasonable. However, it would appear the purpose of the ordinance is to give commercial uses relief from having to obtain the participation of abutting land property owners to do business in the harbor.

All, in all, it simply does not appear this subsection means, as Petitioner suggests, that owners of commercial pier permit are exempt from being required to apply for a new permit. We have one ordinance that is clear on its face and is indisputably applicable. We have another ordinance where the interpretation by Petitioner is doubtful and full of uncertainty.

Second, it does not appear Petitioner has a vested right to maintain and use the commercial pier as it presently exists. Petitioner cites to two cases to support his argument that he has a vested right to maintain and use the commercial pier as it presently exists.

The first, Russ Bldg. Partnership v. City and County of San Francisco (1988) 44 Cal.3d 839, 845-46, essentially held: “It has long been the rule in this state and in other jurisdictions that if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right to complete construction in accordance with the terms of the permit. [Citations.] Once a landowner has secured a vested right the government may not, by virtue of a change in the zoning laws, prohibit construction authorized by the permit upon which he relied.” (Russ Bldg. Partnership v. City and County of San Francisco (1988) 44 Cal.3d 839, 845-846.)

This case is inapplicable, as it involves building permits and changes in zoning laws. Here, the construction of the floats occurred long before a permit was issued even issued.

The second case cited by Petitioner was likely cited to explain the doctrine of vested rights. Highland Development Co v. City of Los Angeles (1985) 170 Cal.App.3d 169. 186 stated “That doctrine, legally grounded in the constitutional protection of property from deprivation without due process of law or just compensation, and functionally defined by elements akin to those of estoppel, provides that where a permittee in good faith has undertaken substantial construction and incurred substantial liabilities in reliance upon a permit, its right to the permit and to the use authorized thereby becomes immunized from impairment or revocation by subsequent governmental regulations. (E.g., Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791 [132 Cal.Rptr. 386, 553 P.2d 546]; Griffin v. County of Marin (1958) 157 Cal.App.2d 507, 511-513 [321 P.2d 148].) This rule is subject, however, to the qualification that such a vested right, while immune from divestment through ordinary police power regulations, may be impaired or revoked if the use authorized or conducted thereunder constitutes a menace to the public health and safety or a public nuisance. (Highland Development Co. v. City of Los Angeles (1985) 170 Cal.App.3d 169, 186, disapproved in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725.)

Here, technically speaking, this permittee has not undertaken substantial construction or incurred substantial liabilities. Rather, the abutting upland property was transferred to him by his parents, including the pier. This is not the situation where a builder applies for a permit, and 6 months later, when the builder has spent sizable funds in construction, the government comes in and changes the zoning. Rather, Petitioner simply argues that because the family has operated the commercial pier as a marina for 75 years, he should be able to continue to do so irrespective of the inter-family transfer.

However, there is really no vested interest in the pier. That is, any property interest in the commercial pier is subject to and contingent upon property ownership in the abutting upland property. Accordingly, if one does not own the property, one cannot maintain a pier permit. NBMC §17.50.070 states, “Permits shall only be issued to and held by the owner or long-term lessee of the abutting upland property. The permittee shall not transfer a permit without prior written approval of the City and payment of fees as established by resolution of the City Council. No person who as an abutting upland owner or lessee of real property was granted a permit under the provisions of this chapter for a pier or similar structure shall retain any right of use in such pier, or similar structure after having divested himself of the ownership or leasehold interest in such real property.”

Petitioner has not provided any examples where a pier permit or something comparable has been held to be a vested right.

RFJN is granted. RP is to give notice.