Case Number: BS167531 Hearing Date: May 24, 2018 Dept: 85

Warren M. Lent and Henny S. Lent v. California Coastal Commission, et al., BS 167531

Tentative decision on petition for writ of mandate: granted in part

Petitioners Warren M. Lent (“Warren Lent”) and Henny S. Lent, individually and as trustees of the Lent Family Living Trust, seek a writ of mandate directing Respondent California Coastal Commission (“Commission”) to vacate a cease and desist order and administrative penalty imposed against Petitioners. Petitioners also seek a declaration of the parties’ rights and obligations pursuant to Public Resources Code (“Pub. Res. Code”) section 30821.

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

A. Statement of the Case

1. Petition

Petitioners commenced this proceeding on February 6, 2017. The operative pleading is the First Amended Petitioner (“FAP”) filed on April 30, 2018. The FAP alleges in pertinent part as follows.

The subject of this action is beachfront real property located at 20802 Pacific Coast Highway, Malibu, CA 90265 (“Property”). In 1978, the original permit applicant, the Olympian Hotel Partnership submitted a Coastal Development Permit (“CDP”) application to the South Coast Regional Commission (“Regional Commission”) for the construction of an 1,830 square foot, two-story, single family dwelling with an attached two-car garage.

A few months later, the regional commission approved the application with, inter alia, a permit condition (1) requiring a deed restriction granting the public access from Pacific Coast Highway to the beach over a six-foot wide area along the eastern border of the Property and (2) requiring the applicant to provide an area for stairs down the access way to the beach, if necessary. Due to the topography of the Property, there are multiple steep drops in elevation in the public access easement such that it would be necessary to construct stairs and walkways to make it usable as a public access easement.

Following an appeal, the Commission approved the CDP with the permit condition but failed to specify the location for the easement condition. The staff report providing the findings in support of the permit’s approval state that the easement would be located along the Property’s western border.

In 1980, Olympian Hotel Partnership assigned the CDP to Frank and Lynne Erpelding (“Erpeldings”), who recorded in the office of the Los Angeles County (“County”) Recorder an offer to dedicate the public access easement. The easement was specifically described as abutting the eastern property line. In 1982, the California State Coastal Conservancy (“Conservancy”) accepted the offer to dedicate.

In 1983, construction of a residence on the Property was completed. As constructed, the residence included improvements within the recorded public access easement area. These improvements include decking, an external stairway, and a removable fence/gate.

In 2002, Petitioners purchased the Property. They had constructive knowledge of the offer to dedicate the vertical accessway, but no notice that the residence’s improvements violated the Conservancy’s easement rights and/or the Coastal Act.

In 2007, the Commission mailed Petitioners a Notice of Intent for Cease and Desist Order Proceedings (“Order”) and to Record a Notice of Violation of the Coastal Act. This notice of intent alleged that the Property possessed unpermitted developments inconsistent with the CDP.

The Conservancy had a survey of the easement prepared. In 2009, the Conservancy entered into a contract with a design firm, Bionic, for the preparation of conceptual plans for public accessways on several public access easements in Malibu.

In 2010, Petitioners’ attorney met with the Commission, Conservatory, and Bionic representatives to discuss conceptual plans for the public accessway on the Property. The Commission and Conservancy representatives informed Petitioners that the gate, stairs, and related improvements could remain within the vertical accessway, due to liability issues, until such time as the accessway was ready to be developed and opened for public use.

In 2012, the Conservancy authorized a grant to the Mountains Recreation and Conservation Authority (“MRCA”) to develop plans for the improvement of public accessways throughout Malibu. In 2013, the Conservancy informed Petitioners that MRCA was preparing a feasibility study to determine the suitability of the Property’s accessway for public use. No plans, beyond Bionic’s conceptual ones, were developed for improvement of the Property’s public accessway because this feasibility study was not yet completed.

In December 2016, a hearing was held on the proposed Order and civil penalties. The Commission’s staff submitted a report for the hearing. The Commission staff recommended that the Commission issue the Order to remove all improvements within the easement area and imposing an administrative penalty in the sum of $950,000. Petitioners asserted that they were not opposed to removal of improvements within the easement area, but asked that the removal not occur until May 31, 2017 when a long-term lease for the Property was set to expire.

The Commission voted unanimously to adopt the Order requiring Petitioners to remove all improvements in the public access easement and an administrative penalty requiring Petitioners to pay an administrative fine in the sum of $4,185,000.

Petitioners seek a writ of administrative mandate on the basis that (1) the Commission committed a prejudicial abuse of discretion by issuing the Order, (2) the Commission committed a prejudicial abuse of discretion by imposing the administrative penalties, and (3) Pub. Res. Code section 30821 is unconstitutional on its face and as-applied.

2. Course of Proceedings

On October 19, 2017, the court granted Petitioners’ ex parte application for a stay of the Order. On March 16, 2018, the court denied the Commission’s and Real Parties’ ex parte application to lift the stay.

B. 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. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c).

The administrative decision in this case is the Order for Petitioners to remove improvements in the easement area and to pay an administrative penalty of $4,185,000. The Commission performs a quasi-judicial function with it issues cease and desist orders with regard to unauthorized development. See Marine Forests Society v. California Coastal Commission, (2005) 36 Cal.4th 1, 25-26.

In determining whether Petitioners have a fundamental vested right subject to independent review, the court must weigh together the importance of the right involved and the degree to which it is possessed. Hardesty v. Sacramento Metropolitan Air Quality Management District, (“Hardesty’) 202 Cal.App.4th 404, 414 (citing Frink v. Prod, (1982) 31 Cal.3d 166, 177) (abatement of mining operation until appellant obtained permit upheld under substantial evidence standard). The search for “vestedness” and the search for “fundamentalness” are one and the same. Id. The ultimate question is whether the affected right is sufficiently significant that its abridgement by a body lacking judicial power should be reviewed independently. Id.

A right is fundamental on either of two bases: (1) the character and quality of its economic aspect and (2) the character and quality of its human aspect. Benetatos v. City of Los Angeles, (“Bentatos”) (2015) 235 Cal.App.4th 1270, 1280 (citations omitted) (substantial evidence applied to city’s imposition of conditions on continued operation of burger stand to abate a nuisance). In weighing the fundamental issue, the courts do not weigh the economic aspect alone, and also consider its effect in human terms and its importance to the individual in the life situation. Id. (citing Bixby v. Pierno, (1971) 4 Cal.3d 130, 144). This task is done on a case-by-case basis. Id.

The substantial evidence standard of review has been applied to administrative decisions that restrict a property owner’s return, increase the cost of doing business, or reduce profits because such decisions impact mere economic interests. Id. at 1281 (citations omitted). On the other hand, the independent judgment standard of review is applied to decisions that will drive a property owner out of business or significantly injure the owner’s ability to function. Ibid. Courts are far less likely to find a fundamental vested right where a case involves pure economic interests. Ibid. (citation omitted). The ultimate question in each case is whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgement by a body lacking judicial power. Interstate Brands v. Unemployment Ins. Appeals Bd., (1980) 26 Cal.3d 770, 779, n.5. In analyzing the fundamental nature of a right, less sensitivity is provided to the preservation of purely economic privileges. Id. at 779, n.6.

Petitioners have neither a vested right to develop their property in a particular fashion, nor a vested right to a CDP free of conditions. Paoli v. California Coastal Com., (1986) 178 Cal.App.3d 544, 550-51 (reviewing Commission’s decision imposing an open space easement condition on CDP). The portion of the Commission’s Order requiring Petitioners to remove improvements in the easement area is reviewed under the substantial evidence standard. Id.

As for the $4,185,000 administrative penalty, no fundamental vested right generally is involved where the penalty is a fine, and the trial court generally reviews such a penalty for substantial evidence. Handyman Connection of Sacramento, Inc. v. Sands, (“Handyman”) (2004) 123 Cal.App.4th 867, 880. Petitioners contend that the independent judgment standard should apply to the $4,185,000 penalty because it violates Petitioners’ fundamental vested right against deprivation of property without due process of law. Pet. Op. Br. at 12.

Petitioners cite Gikas v. Zolin, (“Gikas”) (1993) 6 Cal.4th 841, 870, for the proposition the administrative penalty was imposed in a quasi-criminal proceeding. Id. Gikas held that a DMV license suspension proceeding could relitigate the lawfulness of an arrest. 6 Cal.4th at 859. A dissenter noted that a proceeding is quasi-criminal if it is closely identified with the aims and objectives of criminal law enforcement, and a DUI administrative license suspension proceeding meets that definition. Id. at 870.

Petitioners focus on the wrong issue. The question for judicial review is not whether the Commission’s civil penalty is quasi-criminal – it is — but whether imposition of the penalty invokes Petitioners’ fundamental vested rights. This requires consideration of the fine’s effect on Petitioners in human terms and its importance to the individual in the life situation. Benetatos, supra, 235 Cal.App.4th at 1280. Petitioners present no evidence of the economic impact on themselves of the $4,185,000 fine and its importance to their life situation. Therefore, the general rule of a substantial evidence standard of review applies. See Handyman, supra, 123 Cal.App.4th at 880.

“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 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 (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service 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.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (1975) 47 Cal.App.3d 224, 228. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.

The court reviews questions of law de novo. The Commission’s interpretation of the statutes and regulations under which it operates is entitled to deference. Ross v. California Coastal Commission, (2011) 199 Cal.App.4th 900, 921. This deference does not apply to Petitioners’ constitutional claims, however.

C. Coastal Act

The Coastal Act of 1976 (Pub. Res. Code[2] §30000 et seq.) (“Coastal Act” or “Act”) 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 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.

After public hearing, if the Commission determines any person has undertaken or is threatening to undertake any activity that (1) requires a permit from the Commission without securing said permit or (2) is inconsistent with any permit previously issued by the Commission, the Commission may issue an order directing that person to cease and desist. §30810(a). The cease and desist order may be subject to such terms and conditions as the Commission may determine are necessary to ensure compliance with the Act, including immediate removal of any development or the setting of a schedule within which steps shall be taken to obtain a permit. §30810(b).

In 2014, the California Legislature enacted section 30821, which enables the Commission to impose an administrative civil penalty on persons who violate public access provisions of the Act. §30821(a). The penalty may be assessed for each day that the violation persists, but for no more than five years. Id. The amount of the penalty per violation may not exceed 75 percent of $15,000 per day. Id.

In determining the amount of civil liability the Commission must consider the following factors: (1) the nature, circumstance, extent, and gravity of the violation; (2) whether the violation is susceptible to restoration or other remedial measures; (3) the sensitivity of the resource affected by the violation; (4) the cost to the state of bringing the action; and (5) with respect to the violator, any voluntary restoration or remedial measures undertaken, any prior history of violations, the degree of culpability, economic profits, if any, resulting from, or expected to result as a consequence of, the violation, and such other matters as justice may require. §30821(c) (incorporating §30820(c)).

D. Statement of Facts[3]

1. The Easement

The Property is an oceanfront parcel of land in Malibu.[4] On August 7, 1978, the original permit applicant, the Olympian Hotel Partnership, submitted a CDP application to the Regional Commission for the construction of a 1,830 square foot, two-story, single-family dwelling with an attached two-car garage on the Property. AR 479.

On October 23, 1978, the Regional Commission approved a CDP for the project, subject to several conditions. AR 479, 596-97. One of the conditions was a deed restriction (1) granting the public the right to public access to and egress from the beach over a six-foot wide area along the eastern property border and (2) the right to construct stairs down to the beach seaward of the proposed new residence. AR 479, 2634. The easement would be located above a five-foot-wide, concrete-encased storm drain outfall pipe serving Pacific Coast Highway (“PCH”) and adjacent northerly areas. AR 2634. The rationale for requiring a public easement was that there was “a need for a vertical access in this area.” AR 479. The existence of the storm drain was part of the rationale (presumably because nothing else could be built upon it). AR 479.

On October 31, 1978, Olympian Hotel Partnership appealed one of the CDP’s conditions to the Commission. AR 479. On January 17, 1979, the Commission affirmed the condition and approved the CDP. AR 480, 602. Special Condition No. 5 of the CDP is the vertical easement condition: “The applicant shall execute and record a document … irrevocably offering to dedicate to a public agency … an easement for public access to the shoreline…. The easement shall allow for pedestrian access to and from the shoreline…. Applicant shall provide an area for stairs down from the vertical accessway, if necessary, in the beach seaward of the structure.” AR 604. The Commission found that the proposed project as conditioned conformed to the Coastal Act. AR 602.

The CDP does not authorize any development along the eastern side of the Property where the public access easement was located, except to replace the existing storm drainpipe. AR 480. To this end, Standard Condition No. 4 states: “All construction must occur in accord with the proposal as set forth in the application for permit …. Any deviations from the approved plans must be reviewed by the Commission….” AR 481. Consistent with this requirement, the plans submitted to and reviewed by the Commission for the CDP show the eastern Property edge unencumbered by any private external development. AR 481, 623. The plans show a beach access stair on the western property edge, opposite of the public easement side. AR 481.

After the CDP was approved and before commencement of the residence’s construction, the owner applied for a permit amendment to construct a larger house because an adjacent residence was approved expanding the residence’s stringline (imaginary line from adjacent houses limiting seaward encroachment of residence). AR 481. On February 20, 1980, the Commission approved the amendment. AR 481. The amendment states in relevant part: “All conditions of the original permit not expressly altered by this amendment shall remain in effect.” AR 481. The amendment, like the permit, did not approve any development along the eastern side of the Property. AR 481. The plans for the new residence again showed the eastern Property edge devoid of any external development. AR 481.

2. The Residence

On July 7, 1980, the Olympian Hotel Partnership assigned the CDP to the Erpeldings. AR 482. A few days later, the Erpeldings recorded an offer to dedicate the vertical easement pursuant to the CDP condition. AR 482. The vertical easement was described as a five-foot wide public access easement over the eastern property line. Id. The Conservancy accepted the offer to dedicate on November 17, 1982. AR 2307.

Construction of the residence began in 1981 and was completed in 1983. AR 482-83, 3027. As constructed, the residence possesses an external access ten-foot stairway constructed from the second story down to the eastern edge of the Property for private beach access. AR 483, 2331. The stairway connects the house to a deck approximately ten feet below, a point where the beach can be accessed. AR 2331. The stairway’s landing sits atop a large concrete storm drain. AR 2553, 2677. The stairway lies directly in the recorded public access easement, infringing on it by 27 inches. AR 483, 698, 4215. This stairway was not depicted in the designs approved in the CDP. AR 483. Additionally, an unpermitted gate/metal fence was constructed blocking access to the easement. AR 483, 699.[5]

3. Communications with the Property Owner

In August 1993, the Conservancy sent a letter to the then-owner of the Property notifying him that the Conservancy staff would be conducting a site visit later that month to view the easement. Following the visit, the Conservancy created an Easement Monitoring Form. AR 2428-30. The form mentioned the stairway, but did not state it was non-compliant. Id.

On September 15, 1993, the Conservancy sent a letter to owner’s attorney stating that there is a gate across the easement that “violates the Conservancy’s vertical access easement by blocking it.” AR 700. The Conservancy noted that the easement will remain closed until the Conservancy locates a management agency to open the easement to public use. Id. The Conservancy told the owner’s attorney to “either remove the gate or seek the Conservancy’s permission to keep the gate in place during the period that the accessway is officially closed.” Id. The Conservancy did not mention removal of the stairway. See id.

There is no record of any response to the Conservancy’s letter, and the development blocking the public access easement remained. AR 484.

In 1996, the owner of the Property submitted to the Commission an application for a CDP to add approximately 35 feet of five-foot tall tubular steel fencing to the street side of the existing residence. AR 448-49. The Commission waived the requirement for a CDP for this work. AR 456.

4. Petitioners’ Purchase of the Property

On November 7, 2002, twenty years after the stairway and gate were built, Petitioners purchased the Property. AR 484, 2331. The easement had been appended to the Property’s title by this point. AR 484. When Petitioners purchased the Property, it contained the gate, outdoor stairway, vegetation, planters, a mailbox, and a deck area on the easement. AR 2331. Petitioners did not know that these fixtures violated any laws. AR 2331. Since purchasing the property in 2002, Petitioners have primarily used the Property as a vacation rental. AR 479. In 2016, its average nightly rate was $1092, the weekly rate was from $8,500 up to $9,200 in peak months, and the monthly rate was from $19,950 to $32,000 in peak months. AR 479.

5. The Notice of Violation

In May 2002, Commission staff became aware of and began investigating the easement violation. AR 484.

On April 27, 2007, the Commission mailed Petitioners a “Notice of Violation” letter pursuant to section 30812.[6] AR 484, 703. The letter explained that the white metal fence and gate, vegetation, planters, mailbox, and deck area (for convenience, “stairway/gate”) obstructed the vertical easement and thereby violated the CDP’s express conditions and the Coastal Act. AR 703-04. The letter explained that before the Conservancy could properly administer public access, Petitioners need to remove the encroachments and comply with the CDP conditions. AR 704. The letter notified Petitioners that they, as current owners, were liable for resolving any outstanding violations of the Coastal Act that exist on the Property. AR 704. Pursuant to section 30812(b) and (g), the Commission’s Notice of Violation requested that Petitioners contact a Commission representative to resolve the matter informally. AR 704.

Soon thereafter, Petitioners’ attorney had a telephone conversation with Commission representatives. AR 2331. Petitioners explained that portions of the unpermitted development protected the public from a six to seven foot drop. Id. Commission staff agreed that these portions of the unpermitted development needed to remain in place due to liability issues until the Conservancy developed and managed the easement. AR 2331-32.

6. The Notice of Intent

On May 23, 2007, following a number of telephone conversations between Commission staff and Petitioners and their attorney, the Commission mailed Petitioners a “Notice of Intent to Commence Cease and Desist Order Proceedings and to Record a Notice of Violation of the Coastal Act” (“Notice of Intent”) pursuant to section 30810(a). AR 484, 719. The Notice of Intent informed Petitioners that the stairway/gate is inconsistent with the terms of the easement held by the Conservancy for the purpose of public access to the beach. AR 719. The proposed cease and desist order would require Petitioners to “remove the portion of fence and gate that is blocking the vertical easement” and “require [them] to keep the easements open and free from impediments to pedestrian use at all times in the future.” AR 721.

7. The Conservancy’s Development Effort

In anticipation of a possible settlement with Petitioners, the Conservancy began to take steps to develop the easement. AR 485.

On March 3, 2008, the Conservancy prepared a survey of the easement following a full site visit. AR 485. This survey revealed to the Conservancy for the first time that the fence, stairway, landings, and deck were all blocking the easement area. AR 485. The Conservancy had been unable to make this determination previously because the view from the street was partially-obstructed view. Id. The survey was the Conservancy’s first opportunity to document the extent of the blockage. Id.

In July 2010, Commission staff, Conservancy staff, representatives of Bionic (the Conservancy’s design firm) and Petitioners’ attorney met at the easement site to discuss the potential accessway designs and the need to remove any development that was blocking the easement. AR 485. Also in 2010, the Commission staff notified Petitioners that the stairway as well as the gate were unpermitted. AR 926.

The Conservancy consistently conveyed to Petitioners its intent to improve the easement for public access to the Las Flores Beach. AR 1189. In 2009, the Conservancy initiated a planning process for public access improvements in the easement. AR 1189. In June 2010, Bionic, completed a series of conceptual design for an accessway in the easement. AR 485. The design, which was shown to Petitioners, demonstrated the feasibility of constructing said public accessway. AR 485, 1189-90. Even the rough cost for improvements to the easement were in the range of expectations for similar beach projects. AR 1189.

On August 2, 2011, Petitioners’ attorney outlined in a letter to Commission staff a series of arguments against removing the stairway/gate and opening the easement to public access. AR 484. The letter argued that (a) removing the stairway/gate would unduly burden the Property in violation of Petitioners’ property rights, (b) the Commission was barred by judicial estoppel from seeking its removal, (c) local building codes prevented removing the stairway/gate, (d) the easement should not be developed for public access because it is infeasible to do so, and (e) there are nearby easements that should be developed for public access instead. AR 484. The Commission staff found no merit to these arguments, but continued to work with Petitioners over the next several years to address them. AR 484-85.

8. The Malibu PWP

In December 2012, the Conservancy authorized a grant to MRCA of up to $470,000 to develop the Malibu Coastal Access Public Works Plan (“Malibu PWP”). AR 485. The Malibu PWP included planning and designing improvements for Conservancy and MRCA-owned public access easements in Malibu, including the Property. Id.

In March 2013, Petitioners’ counsel sent the Conservancy a letter arguing against inclusion of the Property’s easement in the Malibu PWP. AR 485, 792-96. Petitioners argued that there were existing nearby public accessways to the beach and that public access through the easement would be inconsistent with the goals and policies of the Coastal Act. AR 792, 795.

The PWP apparently was adopted by the Commission.[7] The Plan is an effort by the Conservancy and MRCA to explore the feasibility of developing undeveloped or impeded public accessways in Malibu as expeditiously as possible in compliance with the Coastal Act and the Conservancy’s statutory mandate for maximum public access to the beach. AR 2094. As a first step, MRCA will develop or refine conceptual site plans sufficient to analyze site feasibility and potential environmental impacts. AR 2095. The Property is one of the public access points to be analyzed. AR 2096. The Conservancy shall give property owners ten days’ notice for any proposed action. AR 2100.

9. The Conservancy’s Continued Efforts

After the approval of the Malibu PWP grant, the Conservancy and MRCA continued to attempt to complete the public access improvements on the Property’s easement. AR 485, 959-62, 1187-92. In a June 6, 2016 letter to the Commission, the Conservancy concluded that it has intended to open a public access to Las Flores Beach through the easement for almost 34 years, but has been thwarted by the Property owners’ long-term private encroachments into the easement and refusal to agree to the removal of the encroachments. AR 961-62. The result has substantially impaired the ability of the Conservancy and MRCA to proceed with finalizing and implementing a public accessway. AR 962.

Subsequent correspondence was exchanged between the parties regarding removal of the encroachments and Petitioners’ legal challenges thereto. In February 2014, Commission staff sent a letter responding to Petitioners’ counsel’s March 2013 letter rebutting the legal challenges raised. AR 486, 797-805.

In March 2014, Petitioners’ attorney sent an email again asserting that MRCA should complete its feasibility study before Petitioners remove the encroachments. AR 487, 806.

Commission staff sent an April 2014 letter responding that the unpermitted development violated the Coastal Act and is inconsistent with the CDP conditions, and its prompt removal is imperative to going forward with the long-delayed public access. AR 807-08. Staff indicated that if Petitioners wish to have input into the public access, the first step is to negotiate a Consent Order. AR 807. Such a Consent Order would have to happen soon because public access easement has been blocked for far too long. AR 808.

At the end of April 2014, Petitioners’ attorney wrote a letter expanding on their legal arguments against removal of the encroachments. AR 487, 809-17.

In June 2014, Commission staff responded in a letter that focused on settlement through a Consent Order. AR 487, 818-19. In October 2014, Commission staff mailed an outline of a potential Consent Order to Petitioners’ counsel. AR 488, 821-22.

On November 24, 2014, Commission staff informed Petitioners’ counsel that the newly enacted section 30821 authorized the Commission “to impose administrative penalties in an amount up to $11,250 per day per violation” for violation of the Coastal Act’s public access provisions, including section 30210 and 30211, and that this new penalty statute applies to the Lents’ property. AR 488, 823.

In December 2014, Petitioners’ counsel responded that that the Commission’s offer was “profoundly disappointing” and amounted to a demand for “absolute capitulation” by his client. AR 488, 824.

At the end of December 2014, Commission staff responded to the arguments of Petitioners’ counsel and repeated an interest in mutual settlement. AR 488, 826-28.

In January 2015, Petitioners’ counsel sent another letter to Commission staff making new or newly expanded arguments. AR 489. Petitioners’ counsel also sent a letter to the Conservancy raising legal arguments against the removing the stairway/gate. AR 489, 835-40.

In July 2015, Commission staff sent a rebuttal to these arguments. AR 489, 841-49.

10. The Second Notice of Intent

In September 2015, the Commission sent Petitioners a second “Notice of Intent to Commence Cease and Desist Order and Administrative Civil Penalties Proceedings” (“Second Notice of Intent”) pursuant to section 30810(a). AR 490, 850-62. The Second Notice of Intent stated that Commission staff had been trying to resolve the violations of the Coastal Act and CDP on the Property since 2007. AR 850. Yet, the easement remains blocked by a private stairway, fence, decks, and other unpermitted development. AR 851. The Second Notice of Intent warned Petitioners that, if a Cease and Desist Order is imposed, section 30821 of the Coastal Act authorizes the Commission to impose administrative penalties in the amount up to $11,250 per day for each day a violation has persisted, for up to five years. AR 856. If a person fails to pay the administrative penalty, the equivalent of a judgment lien may be recorded on that person’s property. AR 856. The Second Notice of Intent closed with a statement that the Commission was willing to resolve the matter without a contested hearing if Petitioners signed a Consent Order. AR 857.

11. Subsequent Correspondence

Petitioners’ counsel responded in a September 25, 2015 letter stating that Petitioners “are moving forward in their efforts to try to reach a mutually acceptable resolution of the current situation, based upon a singular but critically important predicate: they must have a viable second means of egress.” AR 863.

Subsequent emails stated Petitioners’ willingness to resolve the matter through removal of the stairway/gate if they could have some other private beach stairs for the Property, an 18 month delay after the Conservancy submitted an application for a CDP for a public accessway, and other conditions. AR 490.

In January 2016, Petitioners changed attorneys, which led to an exchange of letters raising old and new legal challenges. AR 490. Later in the month, Commission staff sent a January 19, 2016 letter that described the Commission’s statutory authority under section 30821 to impose administrative penalties. AR 491, 865-66. The letter stated that (1) Petitioners have known about illegal development obstructing the easement through Commission staff letters dated April 27 and May 23, 2007, and (2) Petitioners have known since at least 2010 that the stairway is inconsistent with the public easement and the Conservancy’s need to develop a public accessway. AR 866. Yet, Petitioners have consistently refused to remove the illegal development. AR 866. The letter concluded that even a generous weighing of factors in section 30821 would result in substantial administrative penalties. AR 866.

In February 2016, Petitioners’ new counsel sent Commission staff a letter contending that the permitting of the stairway is at least ambiguous, and that an administrative fine of “several hundred thousand dollars” would be unwarranted. AR 867-71. The letter discussed the factors required to be considered in section 30281 and concluded that no fine would be warranted. AR 490, 867-71. Commission staff responded to the permitting argument and warned that an administrative fine could be substantial. AR 491, 872-76. Correspondence between the parties continued throughout early 2016. AR 491.

In May 2016, Commission staff informed Petitioners that they intended to bring the matter before the Commission in June. AR 492, 920. The matter was postponed to December 2016 because Petitioners changed lawyers again. AR 492. Further negotiations and telephone conferences with Petitioners’ counsel failed to resolve the matter. AR 492. The parties could not agree, inter alia, on an appropriate civil penalty; Petitioners found Commission staff’s demand of $600,000 to be an unreasonable figure. See AR 928.

12. The Hearing

At a December 8, 2016 hearing, the Commission adopted the Commission staff’s recommendation to issue the portion of the Order directing Petitioners to remove the stairway/gate from the public access easement. AR 475, 2804.

The Order also imposes an administrative penalty. The Commission staff report noted that Petitioners had been in violation since at least November 24, 2014, when Commission staff sent a letter informing Petitioners that section 30821 penalties would apply to their Coastal Act violations. AR 500. There was a period of 744 days between November 24, 2014 and the hearing date. AR 500. Commission staff noted that section 30821 authorizes a penalty for up to five years for each day the violation persists. AR 500. The Commission was authorized to impose up to $8,370,000 ($11,250 per day for 744 days) for each of Petitioners’ several violations. AR 500. After evaluating a number of factors, the staff recommended a conservative penalty of $950,000. AR 501.

The Commission evaluated the section 30821 factors, expressly noting that Petitioners had remained in violation of the Coastal Act for 15 years (AR 503) and Petitioners remained unwilling to allow public access. AR 504. The Commission exercised its discretion to impose a penalty in the amount of $4,185,000 and not the $950,000 recommended by staff. AR AR 501-05, 2804.

E. Analysis

Petitioners seek a writ of mandate directing Respondent Commission to vacate the entire Order, including removal of the stairway/easement and the $4,185,000 administrative civil penalty imposed against Petitioners. Petitioners also seek a declaration of the parties’ rights and obligations pursuant to section 30821.

1. The Removal Requirement

a. Violation of Permit Requirement and Inconsistency with CDP Conditions

Any person wishing to perform or undertake any development in the coastal zone shall obtain a CDP. §30600. A “development” means “…the placement or erection of any solid material or structure….” §30106. “If the commission, after public hearing, determines that any person or governmental agency has undertaken, or is threatening to undertake, any activity that (1) requires a permit from the commission without securing a permit or (2) is inconsistent with any permit previously issued by the commission, the commission may issue an order directing that person or governmental agency to cease and desist.” §30810.

Petitioners contend that they have not undertaken or threatened to undertake any development of the stairway/gate. Pet. Op. Br. at 9. According to Petitioners, the Commission has conceded this fact. Id.[8] Even if Petitioners’ mere use of the stairway/gate is an “undertaking of development”, this activity is not inconsistent with the Coastal Act. The CDP’s Condition 5 required only an offer to dedicate an easement, and Petitioners’ predecessor owners performed that condition. The subsequent easement is not exclusive, and Petitioners have a right to use it so long as it does not unreasonably interfere with the Conservancy’s usage. See Main Street Plaza v. Cartwright & Main, LLC, (2011) 194 Cal.App.4th 1044, 1054 (easement for particular purpose does not include any other uses by property owner). Petitioners contend that the Order should be set aside for this reason. Id.

Petitioners need not have constructed the stairway/gate to be in violation of section 30810. As Respondents point out (Opp. at 7), Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (“Leslie Salt”) (1984) 153 Cal.App.3d 605, is analogous. In Leslie Salt, unpermitted land fill had been placed on marshy shoreline property between 1971 and 1976. Id. at 609. The San Francisco Bay Conservation and Development Commission (“BCDC”) discovered the landfill in 1979. Ibid. Appellant property owner was not involved in, and had no knowledge of, the fill. The court examined the McAteer-Petris Act, the purpose of which is to comprehensively regulate development of the San Francisco Bay and shoreline. Id. at 616-17. The McAteer-Petris Act provides that BCDC may issue an order requiring a person to cease and desist when the commission determines that the person has “undertaken, or is threatening to undertake, an activity that (1) requires a permit from the commission without securing a permit, or (2) is inconsistent with a permit previously issued by the commission.” Govt. Code §66638. The commission so determined and ordered appellant to remove the fill. Id. at 610. On appeal, the appellant contended that Government Code section 66638 could not be applied to any person other than the one who actually placed the fill — viz., the one who “undertook” the landfill. Leslie Salt, supra, 153 Cal.App.3d at 612. The court disagreed. Id. at 618. In order to effectuate the important purpose of the McAteer-Petris Act, the court found it “necessary to construe section 66638 broadly so that one who ‘has undertaken, or is threatening to undertake’ the proscribed activities refers not simply to one responsible for the actual placement of unauthorized fill but also to one whose property is misused by others for the purpose and who even passively countenances the continued presence of such fill on his land.” Id. at 616-18.

Leslie Salt is analogous to the instant case. Petitioners did not perform or undertake the proscribed activity of installing the unpermitted stairway/gate, but nevertheless continued to permit its presence on the Property. The McAteer-Petris Act and the Coastal Act are similar in that they possess cease-and-desist statutes that must be interpreted broadly. See §§ 30810, 30009 (Coastal Act shall be liberally construed). Applying the Leslie Salt rationale, section 30810 must be construed broadly to proscribe not only the actual placement of unpermitted structures, but also Petitioners’ countenance of the continued presence of the unpermitted stairway/gate. Given the frequent transfer of real properties, only in this way can the Coastal Act purpose of obtaining and maintaining beach access be enforceable.

Apart from a Leslie Salt statutory construction, section 30810 is violated when the retention of unpermitted structures is inconsistent with a previously issued CDP. Special Condition 5 of the CDP not only requires recordation of an offer for a public access easement, it requires that the Property allow public access to the beach: “The easement shall allow for pedestrian access to and from the shoreline.” AR 480. Special Condition No. 4 requires all construction must occur by permit, and no development along the eastern side of the Property been through a permit. AR 481. Therefore, Petitioners’ retention of the stairway/gate without a permit violates the CDP and section 20810.

Petitioners contend that they are in compliance with the CDP because their predecessor Property owner recorded the offer for access easement. They are not. The stairway/gate is inconsistent with the CDP’s Special Condition No. 5 because it made public pedestrian access to and from the shoreline virtually impossible. The gate blocks pedestrian access entirely, and the stairway encroaches 27 inches onto a 60-inch (five-foot) wide accessway. The stairway/ gate also is inconsistent with Special Condition No. 4 because it is unpermitted.

Petitioners suggest that the stairway/gate in fact was permitted, which would satisfy Special Condition No. 4 (but not Condition No. 5). They rely on approved 1980 plans for the residence from County files which they contend show stairs along the eastern side of the residence. AR 2633-37, 2661. Petitioners contend that a diagram was submitted to the Commission in 1981 as part of the request for approval of the CDP amendment which shows a door on the second floor of the eastern side of the residence. AR 2659.

In reply, Petitioners also present evidence from Ron Goldman (“Goldman”), an architect since the late 1970’s, who avers that it was a general custom and practice at the time not to always depict walkways, steps, planters and other landscape features outside of the footprint of the residence. AR 2561. Reply at 9. Petitioners further contend that the gate, while unpermitted, was installed out of necessity to protect passersby because of a steep 6 -to -7 -foot drop from PCH onto the wood landing covering the storm water pipe. AR 2331-32. As long as the easement remains undeveloped, members of the public could fall onto the landing and seriously injury themselves. That is why the Commission and the Conservancy allowed Petitioners to keep the removable gate until such time as construction of the accessway actually commenced. AR 2331-32, 2485.

Petitioners have not carried their burden. The plan page approved by the County is virtually illegible. AR 2661. The diagram submitted to the Commission as part of the CDP amendment does not “clearly depict” anything either. See AR 2634, 2659. More important, the CDP amendment states: “All conditions of the original permit not expressly altered by this amendment shall remain in effect.” AR 627 (emphasis added). Whatever the plans may show, the CDP amendment did not expressly alter the public access easement to permit a stairway to be built.

The Commission’s staff also rebutted the plan sheet submitted by Petitioners by showing that it is contradicted by all other County-approved plans for the residence that show no development in the public easement. AR 509, 516-17. The plan sheet presented by Petitioners was not in the Commission’s permit file, and there is no evidence that the Commission reviewed or approved the stairway or other development. AR 511-14. In fact, the Coastal Act and the Commission’s regulations prohibit it from approving development in a public access easement that lessens public usage; the Commission would have had to expressly address a development that fundamentally contradicts the CDP’s public access purpose. AR 515-17.

There is substantial evidence that the Commission never saw or approved any plans for a stairway, and that a stairway in the public right of way would deviate from Coastal Act policies and the CDP. The stairway was unpermitted, and it is undisputed that the gate was also. As such, this unpermitted development violated CDP Special Condition No. 4. The stairway/gate also are inconsistent with Special Condition No. 5’s requirement for public access to the beach. For this reason, Petitioners violated section 30810 because the stairway/gate are inconsistent with the CDP. Additionally, Petitioners violated section 30810 by passively countenancing the encroaching stairway/gate.

b. Laches

Petitioners contend that laches precludes the Commission’s enforcement action. Pet. Op. Br. at 10. They argue that the Commission unreasonably delayed in bringing its action, and this worked to Petitioners detriment because witnesses have been lost – the original applicant and his architect have passed away. AR 4197. Additionally, it has been difficult to reconstruct the CDP events for construction of the residence. Pet. Op. Br. at 11.

Laches is an equitable safeguard operating independently of the statute of limitations and exists to assure defendants are not confronted with stale claims. Transwestern Pipeline Co. v. Monsanto Co., (1996) 46 Cal.App.4th 502, 520. A claims based on the public duty of a local or state agency may be barred by the doctrine of laches. People v. Dept. of Housing & Community Development, (1975)45 Cal.App.3d 185, 195. The claim is barred by the laches where the plaintiff is guilty of unreasonable delay in commencing litigation plus either the plaintiff acquiesces to the defendant’s alleged wrongful act or the defendant is prejudiced by the delay. Johnson v. City of Loma Linda, (2000) 24 Cal.4th 61, 68; Conti v. Board of Civil Service Commissioners, (1969) 1 Cal.3d 351, 359-360. The laches defense applies fully to mandamus claims as well as other claims. Schellinger Brothers v. City of Sebastopol, (2009) 179 Cal.App.4th 1245, 1267-68. Laches is not available where it would nullify an important policy adopted for the benefit of the public. Feduniak v. California Coastal Com’n, (“Feduniak”) (2007) 148 Cal.App.4th 1346, 1381.

The Property’s stairway/gate has been inconsistent with the CDP since the residence was completed in 1983. AR 3027. The stairway/gate is visible from PCH. AR 699. The Conservancy acquired actual knowledge of the stairway/gate in 1993 when it sent a letter that the owner must either remove the gate or seek the Conservancy’s permission to keep it in place until the accessway was opened for public use. AR 700. In 1996, the Property’s former owner submitted a CDP application to the Commission that sought to add five-foot tall tubular steel fencing to the street side of the existing residence. AR 448-49. The Property’s former owner filled out an undated “Easement Monitoring Form” stating that “the vertical easement is altered in the way of a gate placed at the entrance point” and that the gate “could constitute a lack of compliance”. AR 4078.

From this evidence, Petitioners conclude that the Conservancy and Commission knew about the stairway/gate no later than 1993 and 1996, respectively. Pet. Op. Br. at 11. The timing of the Commission’s knowledge of the stairway/gate existence is a factual question which need only be supported by substantial evidence. Substantial evidence exists for the Commission’s conclusion that it did not learn of the unpermitted stairway/gate until May 2002 when Commission staff became aware of, and began investigating, the easement violation. AR 484. Petitioners’ evidence of the Commission’s knowledge does not contradict this conclusion because it concerns only fencing on the PCH side of the residence and the former Property owner’s Easement Monitoring Form was given to the Conservancy, not the Commission.

In any event, the Commission delayed from 2002 until 2007, when Commission staff mailed Petitioners the April 27, 2007 Notice of Violation and then the May 23, 2007 Notice of Intent. AR 484, 703, 719. The court will assume arguendo that this delay was unreasonable. Nonetheless, laches cannot be applied to the Commission’s failure to act. One of the core principles of the Coastal Act is to maximize public access to the coast to the extent feasible. City of Dana Point v. California Coastal Commission, (2013) 217 Cal.App.4th 170, 185. The public has a strong interest in “eliminating an ongoing unpermitted development” and in “protecting the Commission’s ability to enforce existing and future easement and permit conditions.” Feduniak, supra, 148 Cal.App.4th at 1380 (cease and desist order enforced to compel restoration of 3-hole golf course per easement requiring native vegetation despite 20 year delay). Use of the laches doctrine to prevent enforcement of the easement’s public accessway to the beach would nullify an important Coastal Act public policy.

Petitioners assert that application of laches would negate the cease and desist order, but would not prevent removal of the stairway/gate because Petitioners are committed to removing them if and when construction commences for the public accessway. Pet. Op. Br. at 11-12. As the Commission staff pointed out (AR 536), Petitioners’ decade of “avowed resistance” to the Commission’s removal of the stairway/gate undermines this purported commitment.[9]

Substantial evidence supports the Commission’s Order directing Petitioners to remove the stairway/gate pursuant to the Commission’s authority under section 30810(b) because (1) the stairway/gate are inconsistent with the CDP and (2) Petitioners violated section 30810(a) statute by passively countenancing the stairway/gate encroaching on the public access easement. This conclusion would apply even under an independent judgment standard of review.

2. The Administrative Penalty

In 2014, the California Legislature enacted section 30821, enabling the Commission to impose an administrative civil penalty on “a person, including a landowner, who is in violation of the public access provisions” of the Coastal Act. §30821(a). The penalty may be assessed for each day that the violation persists, but for no more than five years. Id. The amount of the penalty per violation may not exceed 75 percent of $15,000 per day (i.e., $11,250 per day). Id.[10]

In determining the amount of civil liability, the Commission must consider the following factors: (1) the nature, circumstance, extent, and gravity of the violation; (2) whether the violation is susceptible to restoration or other remedial measures; (3) the sensitivity of the resource affected by the violation; (4) the cost to the state of bringing the action; and (5) with respect to the violator, any voluntary restoration or remedial measures undertaken, any prior history of violations, the degree of culpability, economic profits, if any, resulting from, or expected to result as a consequence of, the violation, and such other matters as justice may require. §30821(c) (incorporating §30820(c)).

The Commission performs a quasi-judicial function when it issues a cease and desist order and an accompanying fine for unauthorized development. See Marine Forests Society v. California Coastal Commission, supra, 36 Cal.4th at 25-26. The limitations on the Commission’s power to issue a fine are that it must be authorized by legislation and must be “reasonably necessary to effectuate the administrative agency’s primary, legitimate regulatory purpose.” McHugh v. Santa Monica Rent Control Board, (1989) 49 Cal.3d 348, 374. Petitioners do not dispute the Commission’s statutory authority to impose a fine where it is reasonably necessary to rectify a violation of the Coastal Act’s public access provisions.

1. Violation of Public Access Provisions

Petitioners contend that the Commission mistakenly relies on section 30210 through 30212, which are Coastal Act public access provisions, to justify application of an administrative penalty for Petitioners. Pet. Op. Br. at 13.

a. Section 30210

Section 30210 states in relevant part: “In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access … shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse.”[11] (Emphasis added).

Petitioners contend that section 30210 sets forth public duties imposed on the Commission and the Conservancy, not on property owners like Petitioners. Pet. Op. Br. at 12. Petitioners contend that only the Conservancy violated section 30210 by “sitting on” the easement for decades without taking action. Pet. Op. Br. at 12-13.

Petitioners are partly correct. As stated ante, section 30821 authorizes the Commission to impose administrative penalties on anyone “in violation of the public access provisions” of the Coastal Act. §30821(a). Section 30210 is a public access provision, and sets forth a public access policy which the Commission is obligated to implement. See §30214. It is not a policy directed to Petitioners or obligating them to act. §30330. Nevertheless, the Commission did implement this policy through the CDP issued to Petitioners’ predecessor owner. The CDP’s Special Conditions are enforced by the Commission through a cease and desist order under section 30810. Petitioners are in violation of the public access provisions of the Coastal Act, including section 30210, by undertaking/passively countenancing activities that violate the CDP’s Special Conditions. The Commission has both jurisdiction under section 30810 and a duty under section 30210 to abate this violation. AR 2809.

Petitioners argue that section 30821 authorizes an administrative penalty only for violation of the Coastal Act’s access policies, and the Commission could file a civil action under section 30820 if it wanted to allege a violation of the CDP. Pet. Op. Br. at 15. Not so. The Coastal Act’s access policies are implemented through the CDP. The Commission has the authority under section 30821 to impose an administrative penalty for a violation of coastal policies required by a CDP.

Petitioners contend that their maintenance of the gate is consistent with public safety needs and that their maintenance of a stairway only partly encroaches in the easement area and is consistent with their non-exclusive right to the easement. Pet. Op. Br. at 13. Petitioners miss the point. The policy in section 30210 is maximum access to the coast consistent with public safety needs. Public safety needs are not the focus, but rather a limitation on public access. As noted post, Petitioners stairway/gate violates the CDP’s Special Conditions and impairs maximum public access to the beach.

b. Section 30211

Also a public access provision, Section 30211 states in relevant part that “[d]evelopment shall not interfere with the public’s right of access to the sea where acquired through use or legislative authorization.”

Petitioners contend that they are not interfering with the public’s right of access because there is no public access at their property; there is only a neglected publicly-owned easement which is physically inaccessible because of the inherent dangers in the easement’s topography. Petitioners rely on the Commission hearing testimony of Alex Nathan Helperin (“Helperin”), a Commission staff member. AR 4273. Helperin testified that a grade separation exists between the sidewalk and the surface of the easement area such that something must be in place in order for the public to descend to the storm drain or whatever is on it as a pathway. The Conservancy and MRCA are finalizing their plans regarding removal of the gate and this topography issue. Id. Pet. Op. Br. at 13.

Petitioners also contend that insufficient evidence supports the Commission’s claim that that the unpermitted stairway/gate impedes further planning and design of the public accessway. Petitioner Warren Lent testified that he intends to remove the gate at a moment’s notice and send keys to Commission and Conservancy staff so that they can build on or evaluate the Property. AR 4216-17. He also testified that he was not trying to block the easement and just wanted to figure out a way to have a secondary means of egress out of his home. Id. Petitioners further cite to a 2011 letter written by David C. Weiss (“Weiss”), a structural engineer, who examined Bionic’s conceptual designs and questioned their practicality. AR 2396. Pet. Op. Br. at 13.

These arguments are spurious. The immediate availability of public access following removal of unpermitted development is not the test for whether the development denies public access. There is overwhelming evidence that Petitioners are interfering with the public’s right of access to the ocean via the easement. The Conservancy has made clear that the stairway/gate has substantially impaired its ability to move forward with a public accessway. AR 959-62. Since 2012, the Conservancy has been working with MRCA to design and improve the Property’s public access easement. AR 959. The Conservancy has spent tens of thousands of dollars to address the various problems raised by the encroachments which otherwise could have gone to design and planning efforts. Id. The Conservancy cannot move beyond a very rough draft of its feasibility studies until it learns when and how the stairway/gate will be removed. AR 960. Petitioners’ resistance to removal of the stairway/gate has harmed the efforts to develop the easement as it has rendered potential costs, timeframes, and liability issues uncertain. AR 962. The Conservancy concludes: “Removal of these encroachments will enable [it] to move forward with increasing needed public access in this area.” Id. At the Commission hearing, Helperin testified that the Conservancy and MRCA have been “holding off” on finalizing plans for the public accessway because “they weren’t sure how things were going to play out and whether there was going to be resistance.” AR 4273.

This evidence compellingly shows that removal of the stairway/gate is required for the easement to be available to the public for access to the beach, and that Petitioners have interfered with the public’s right of access in violation of section 30211.

c. Section 30212

Section 30212 is a public access provision, and provides in relevant part that “[p]ublic access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects.”

Petitioners contend that this statute requires that new development be conditioned on the provision of public access, which imposes an obligation on the Commission, not Petitioners. Pet. Op. Br. at 13. As noted ante, this logic is unsound. Section 30212 is a policy enforced by the Commission upon developers through a CDP. A breach of a CDP condition is a violation of this public access policy.

d. Conclusion

Overwhelming evidence exists to support the Commission’s decision to impose an administrative civil penalty on Petitioners for their violation of the public access provisions of the Coastal Act as implemented through the CDP. §30821(a).

2. The Administrative Penalty

The Commission found that every one of the five factors in section 30821(c), borrowed from section 30820, supports imposition of a significant penalty. AR 501.

a. Nature, Circumstance, Extent, and Gravity of the Violation

The Commission found Petitioners’ violation of the public access provisions to be significant in nature, circumstance, extent, and gravity. AR 501. The Commission described the public accessway as “highly needed” and desired. Id. The stairway/gate unpermitted by a CDP blocked the easement belonging to the public for access to and from the ocean. Id. The Commission characterized the public access as a “significant and central resource protected by the Coastal Act” and Petitioners’ blockage significant. Id. The Commission noted that the violation had impacted the easement’s improvement for multiple years. Id. Finally, the Commission concluded that the gravity of Petitioners’ violation is significant because it limits public access to the coast for an almost three-mile distance and there is a complete lack of other available public access. Id.

The Commission acknowledged that Petitioners are not the original owners who built the stairway/gate, but stated that they have a legal duty to comply with the CDP’s conditions and the Coastal Act. AR 505. The easement also was on title when Petitioners purchased the Property. Id.

Petitioners wrongly argue that the Commission cites the Coastal Act, CDP, and violation of Coastal Act policies, yet should only have evaluated Petitioners’ violation of the Coastal Act’s public-access policies pursuant section 30821(c). Pet. Op. Br. at 14. The CDP implements the Coastal Act’s public access policies, and it was appropriate for the Commission to evaluate it as part of the violation.

Petitioners argue that they did nothing more than buy the Property upon which the unpermitted developments were already present. Pet. Op. Br. at 14. Petitioners did more than that. When they bought the Property, the unpermitted stairway/gate had prevented public access for 20 years. Petitioners continued that blockage by fighting the Conservancy and the Commission to prevent its removal. By the time of the hearing, Petitioners had continued to prevent public access by retaining the stairway/gate for another 14 years. Petitioners cannot be saddled with the initial 20 year delay, but its existence underscores the significance of the violation.[12]

Petitioners argue that the stairway/gate does not “significantly” block the easement because the stairway lies only partly in the easement area. Pet. Op. Br. at 14-15. This conclusion is not true. The gate blocks access to the easement entirely, and the stairway encroaches nearly halfway (27 inches) onto the six foot easement. There is no evidence that a public accessway could be built on a three and a half foot easement, and common sense suggests otherwise.

Petitioners argue that the gate and landing protect the public against a six to seven foot fall onto the concrete landing in the easement area. Pet. Op. Br. at 14. This is true with respect to the gate. The gate or some other blockage well may be necessary to prevent falls by the public until the Conservancy builds the accessway. But that fact does not undermine the seriousness of Petitioners’ refusal to remove the stairway.

Petitioners contend that the Commission exaggerates the lack of actual and potential beach access in the vicinity of Petitioners’ property. Pet. Op. Br. at 15. They argue that other publicly-owned accessways remain closed only because of the Conservancy’s failure to develop them. Id. Petitioners informed the Commission of three locations in close proximity to the Property that have public access easements to the beach: (a) two that are one-half mile west at Duke’s restaurant; (b) a second at Moonshadows restaurant one-half mile east, and (c) a third at 19900 PCH, approximately 1.1 miles east. AR 2633-34, 3012. Reply at 4.

Since Petitioners concede that these public accessways currently are closed (Reply at 4), the Commission’s conclusion that there are no other operative accessways for a three-mile stretch is correct. Moreover, it is not for Petitioners to say which public accessways should be opened; that is the Conservancy’s job. The Commission and the Conservancy have been trying for years to gain public access to the beach through dedicated easements, only to battle various homeowners for lawful public access. See, e.g., AR 2097-99 (noting three lawsuits in which the Conservancy and/or Commission have been obligated to litigate public beach access). According to the Commission, there have been 34 public accessway easements recorded in the County, and yet only 13 have been opened for public use. AR 502. In Malibu, only 8 of the 24 vertical access easements have been opened for public access. AR 502. Indeed, frustration over private property owner resistance to opening previously granted public access easements to the beach appears to be the reason why the Legislature passed section 30821. The Malibu LUP establishes a goal of a public accessway every 1000 feet for Las Flores Beach, where the Property is located, and for Las Costa Beach. AR AR 502. Yet, there are only two public accessways near the Property, one 1.7 miles west at Carbon Beach and another one mile east at Big Rock Beach. AR 502. Petitioners cannot rely on the resistance of other private property homeowners to permit beach access to undermine the significance of their own violation. The Conservancy is guilty of acquiescing in some of the delay, but there is no doubt that homeowners have been a major obstacle to beach access.

The first factor weighs in favor of a penalty.

b. Whether the Violation is Susceptible to Restoration or Other Remedial Measures

The Commission acknowledged that Petitioners’ violation could be viewed as susceptible to restoration because the stairway/gate can be removed and demolished. AR 505. The Commission nevertheless found that removal of unpermitted development would not undo years of lost public access to the beach. Id. The Conservancy stated that the public accessway would have been opened to the public long ago but for Petitioners’ encroachments. Id.

Petitioners contend that this factor merely asks whether the violation is susceptible to restoration. Pet. Op. Br. at 15. They argue that the answer is plainly yes; the stairway/gate can be removed quickly and simply. Id. The Commission’s Chair acknowledged that “the ability to restore is quite simple.” AR 4276. Petitioners contend that the Commission improperly focused on the harm from the violation, and not the violation itself. Id.

The Commission’s opposition does not address this argument. Section 30821(c) incorporates the factors of section 30820 in determining the amount of civil liability for violating Coastal Act public access provisions. The factor in section 30820(c)(2) is “whether the violation is susceptible to restoration or other remedial measures.” The plain meaning of this provision is remediation of the violation, not remediation of the harm from the violation. The Commission’s discussion runs adrift from the second factor’s scope.

The second factor does not weigh in favor of a penalty and the Commission erred in so finding.

c. Sensitivity of the Resource Affected by the Violation

The Commission noted that the resource affected — coastal access — is a sensitive resource which is extremely limited in the County, and in Malibu in particular. AR 502. Vertical easements in developed coastal areas are rare and valuable and there are virtually no new vertical easements being required presently. Id. Further, California’s population continues to grow and there is a concordant increasing desire to access the coast. Id.

Petitioners contend that the Commission engaged another “bait-and-switch” on this factor because the easement is the resource affected by Petitioners’ violation, not public access. They note that there are 24 vertical public easements in Malibu, with eight open for public use. Petitioners contend that this is a sufficient number. Pet. Op. Br. at 15.

Petitioners are wrong. For purposes of a Coastal Act violation, the resource affected is public access. The purpose of the easement is to provide public access to the beach. There are eight open public accessways in Malibu, but there should be more. The Malibu LUP establishes a goal of a public accessway every 1000 feet for Las Flores Beach where the Property is located. AR 502. There are only two public accessways near the Property, one 1.7 miles west at Carbon Beach and another one mile east at Big Rock Beach. AR 502. Public access to Las Flores beach has been significantly impacted by Petitioner’s violation.

In reply, Petitioners blame the Conservancy and MRCA for the lack of public access. Reply at 4-5. This repetitive argument may be given short shrift. The Conservancy is complicit in the multi-decade failure to develop public accessways, but that fact in no way exonerates Petitioners.

The third factor weighs in favor of a penalty.

d. Cost to the State of Bringing the Action

The Commission found that the costs to the state in bringing this action have been “very significant” and that Petitioners’ violation has been “particularly egregious”. AR 502. The Commission’s staff has spent nine years working on this matter, including a tremendous amount of time in letter writing, researching, phone conversations, attempted negotiations, coordination with other agencies, and meetings. Id. Much of this time has been spent in responding to Petitioners’ numerous challenges. Id. Since December 2013, the Commission’s staff has written approximately 20 letters to Petitioners, many with long, detailed legal analysis. Id. Many of the responses involved rearguing the same issues raised by Petitioners. Id. Each time staff rebutted an argument, Petitioners proffered new variations of the argument, or else new arguments. Id.

Additionally, the Conservancy has spent considerable time investigating the encroachments, and time and money attempting to plan the accessway while confronting opposition from Petitioners. AR 503. These public funds could have been spent developing public access at other locations. Id. When MRCA is included, three state agencies have invested significant time and effort on this violation. Id. The public policies in favor of resolving violations quickly and reducing transactions costs support higher penalties in Petitioners’ case. Id.

Petitioners contend that this factor has “no sensible application” because the state – through the Attorney General — did not bring an action to recover penalties against Petitioners under section 30820. Pursuant to section 30820, the state brings an action for civil penalties in superior court and, in such a lawsuit, the court may consider the State’s costs in bringing the suit under section 30820(c)(4). According to Petitioners, this factor has no bearing on a Commission-imposed administrative civil fine under section 30821, which by definition cannot include the cost of a superior lawsuit. Pet. Op. Br. at 16.

Petitioners are incorrect. Section 30821(c) only requires consideration of section 30820’s factors, not the portions of section 30820(a) and (b) concerning a superior court lawsuit. As incorporated into section 30821(c), section 30820(c)(4)’s language of “bringing the action” must be construed to mean bringing the Commission’s cease and desist enforcement proceeding.

Petitioners further argue that the Commission made no effort to quantify the administrative cost even of bringing the administrative proceeding. AR 3046, 4276. Petitioners add that the costs to the Conservancy of research, settlement talk, and conferring with third parties are not part of the costs of “bringing the action”, which only should be the costs of preparing for and conducting the cease and desist proceeding. Reply at 5.

The court disagrees. Section 30820(c)(4)’s language must be interpreted to include the state’s costs — through the Commission, Conservancy, and MRCA — of dealing with Petitioners in an attempt to open the public accessway. The Commission’s cost for conducting the actual enforcement hearing is relatively small, and the factor should not be construed in a way that unduly crimps consideration of the state’s efforts.

Petitioners contend that the Commission asserts that it incurred “very significant” costs in enforcing this matter but made no effort to quantify said costs. Pet. Op. Br. at 16. This is true. The Commission’s failure to quantify the state’s costs undermines, but does not negate, this factor. The number and detail of the letters between the parties shows a substantial, albeit unquantified, effort by state agencies.

The fourth factor weighs in favor of a penalty, but less heavily than a quantified number would have.

e. With Respect to the Violator, Any Voluntary Restoration or Remedial Measures Undertaken, Any Prior History of Violations, the Degree of Culpability, Economic Profits, if Any, Resulting from, or Expected to Result as a Consequence of, the Violation, and Such Other Matters as Justice May Require

The Commission noted that the Petitioners exhibited a high degree of culpability and a lack of voluntary restoration efforts. AR 503. Since 2007, Petitioners have refused to remove Coastal Act violations that blocked the public access easement or enter into a cease and desist order despite many staff letters over the years requesting a resolution. Id. Petitioners’ pattern of behavior over the years reflects an attitude of unwillingness to allow public access to the beach and an intention of keeping the beach private. AR 504.

This unwillingness was distinctive as the Commission has amicably resolved many past disputes without resort to section 30821 penalties. Id. The Commission settled a similar public access violation in Malibu in 2013 for over $1million (Ackerberg). Id. Other recent settlements include $700,000 in 2016, $400,000 in 2015, and $2.5 million, $600,000, and $575,000 in 2013. Id. Immediately preceding this matter, the Commission settled the first section 30821 case for public access in Malibu just upcoast of the Property. Id. The respondent was cooperative and settled within several months of purchasing the property for an amount similar to $950,000 recommended by staff in this case. Id.

The Commission also noted that Petitioners have maintained the residence primarily for temporary vacation rental listed on “VRBO” and other websites. AR 504. Properties in Malibu typically enjoy substantial profits. AR 504. On November 17, 2016, the average nightly rate of the residence was listed as $1,092, and the weekly rate ranged from $6,500 in winter to $32,000 per month in the peak summer months. Id. See AR 769-85. Commission staff did not have access to specific records of occupancy, but the residence appears to be booked typically based on the VRBO website. Id. The private access to the beach through the stairway/gate is highlighted as a benefit for potential renters in the VRBO advertisement. Id. Therefore, Petitioners’ Coastal Act violations indirectly helped market the Property and generated higher revenues. Id.

Petitioners contend that they have engaged in some voluntary restoration and remedial measures. Pet. Op. Br. at 16. Petitioners cite an unsigned draft letter from their counsel to the Commission with supporting pictures to contend that they removed a mailbox and planters in the easement area. AR 2475. Petitioner Warren Lent declares that they have never blocked the Conservancy’s access to the easement and always provided access when requested to do so. AR 2333 (¶17). At the hearing, Petitioner Warren Lent testified that he gave gate keys to the Commission. AR 4217.

Assuming all of this evidence is correct — the citation does not actually support removal of the planter – Petitioners’ voluntary effort has had only a minor impact. Petitioners did not voluntarily remove the two important unpermitted structures — the gate and stairway — and did not adopt reasonable remedial measures as evidenced by the nine years of Conservancy and Commission effort and the cease and desist proceeding. See Opp. at11. In no way have Petitioners given “full cooperation” as they claim. See Reply at 5.

Petitioners contend that they have not committed prior violations, are innocent purchasers of the Property with no knowledge of any alleged violation, and are not responsible for the present lack of public access. Pet. Op. Br. at 16. Petitioners have not committed prior violations and they were innocent purchasers. But they have known of the violations for over nine years and have resisted the requirement for public access. As the Commission pointed out, Petitioners were never justified in their non-compliance with the CDP conditions and the Coastal Act. AR 505.

Petitioners attack the Commission’s conclusion that they derive economic profits from the violation. They contend that the Commission merely speculated that Petitioners have made significant revenues from renting the house without actual evidence of the same. In fact, the “undisputed evidence” is that the rental income does not cover the Property’s mortgage and property tax. AR 4212. Pet. Op. Br. at 16.

The Commission had no quantifiable evidence of economic profits from the violation. It did have some evidence. The Commission may reasonably infer that the unpermitted development aided Petitioners’ effort to generate rental income because Petitioners’ VRBO listing provides a picture of the stairway, landing, and beach beyond with the caption: “Direct Beach Access.” AR 785. The stairway/gate to the beach has been a selling point for Petitioners’ rentals.

Moreover, Petitioners need not derive a profit from renting the Property for this factor to apply. The factor involves examination of “economic profits, if any, resulting from, or expected to result as a consequence of, the violation.” This means profit from the violation, not profit from a property rental business. Further, Petitioners purported evidence that the vacation rentals of their Property does not pay the mortgage and property tax is merely the advocacy of their lawyer, who reported what his clients told him. AR 4212. That argument is not evidence.

Petitioners contend that the Commission punished them for “fighting hard” to preserve a staircase, landing, and gate that they believed legal and vital to the safety and security of themselves and the public. Reply at 6. They did not spend nine years defying the Commission; Commission staff is at fault for delaying months and sometimes years without following up. AR 2331-32, 2485. Id.

The court agrees that Commission staff sometimes waited months before responding to a letter from Petitioners’ counsel. Nonetheless, Petitioners are the principal cause of the nine year delay. It is plain that Petitioners’ motive was to stall. If given the chance, Petitioners would have continued their letter writing indefinitely, purporting to cooperate but making the same legal arguments, sometimes embellished in a new way. This factor works in favor of a penalty not because Petitioners fought hard for their legal rights, but because they deliberately stalled public access.

The fifth factor weighs in favor of a penalty.

3. The Penalty

Based on these factors, as well as an attempt to be conservative in its first imposition of penalties under section 30821 by using the November 24, 2014 date on which Commission staff first notified Petitioners of the potential for section 30821 penalties and by reducing the number of violations to one, the Commission imposed a penalty of half the maximum: $4,185,000. AR 505. This penalty was more than four times greater than the $950,000 penalty recommended by staff. See id.

Petitioners do not challenge the Commission’s calculation of the fine. The court has some concern about the calculation because, at least from the cited pages in the Joint Appendix, the Commission did not draw a nexus between its findings on the pertinent factors and the actual penalty of $4.1 million. Instead, the Commission was concerned with the deterrence of other homeowners who fail to cooperate and resist opening lawful public access easements. For this reason, the Commission considered a penalty six times that imposed on the cooperating homeowner who settled for a $925,000 penalty that day, and ultimately settled on a penalty four times that amount. AR 4286, 4307. Civil penalties may have a punitive or deterrent aspect, but their primary purpose is to secure obedience to statutes and regulations serving an important public policy. City and County of San Francisco v. Sainez, (“Sainez”) (2000) 77 Cal.App.4th 1302, 1315 (citation omitted).

4. Constitutionality of Penalty

Petitioners contend that the penalty is grossly disproportional to the gravity of Petitioners’ offense and should be set aside as unconstitutional under the excessive fine clauses in the United States and California Constitutions. Pet. Op. Br. at 17.

a. Excessive Fine

Both the United States and California Constitutions possess excessive fines clauses. U.S. Const., 8th Amend; Cal. Const., art. I, § 17. A civil penalty, by virtue of its partially punitive purpose, is a fine for purposes of the constitutional protection. Sainez, supra, 77 Cal.App.4th at 1321. The constitutional question is whether the penalty is excessive. Id. The touchstone of this inquiry is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the defendant’s offense. Id. at 1321-22. The fine is unconstitutional if the amount of the forfeiture is grossly disproportional to the gravity of the violator’s offense. Id. at 1322. Proportionality factors include the nature of the violation, its punishment, the harm caused by the violator, other penalties for like offenses, and the ability to pay. See id. Judgments about the appropriate punishment for an offense belong in the first instance to the legislature. Balice v. U.S. Dept. of Agriculture, (9th Cir. 2000) 203 F.3d 684, 699.

i. Nature of Violation

Petitioners contend that the nature of their violation is that (1) a removable gate restricts access to a topographically dangerous easement and (2) a stairway and wood landing encroach partly within the easement area but do so to provide emergency secondary egress for Petitioners. Pet. Op. Br. at 17.

This is not a fair characterization. The nature of Petitioners’ violation is the willful retention of unpermitted structures blocking public access in violation of the Coastal Act and CDP, and nine years of deliberate refusal to remove them after the Commission notified them on April 27, 2007 that they were in violation. AR 703-04.

ii. Harm Caused

Petitioners contend that the Commission proved no harm because the Conservancy has failed to develop a path for public access. There is insufficient evidence to support a conclusion that stairway/gate are impeding the opening of this easement into a public accessway. Pet. Op. Br. at 17.

Substantial evidence demonstrates that a public accessway could have been built long ago if Petitioners had removed their gate/stairway. In June 2010, Bionic, the Conservancy’s design firm, completed a series of conceptual design for a public accessway in the easement. AR 485. The design, which was shown to Petitioners, demonstrated the feasibility of constructing said public accessway. AR 485, 1189-90. Even the rough cost for improvements to the easement were in the range of expectations for similar beach projects. AR 1189. There is substantial evidence that Petitioners’ resistance was the only hurdle preventing further development of the easement as a public accessway. The only unclear issue is how long it would have taken for the Conservancy to fund, design, and build the public accessway.

iii. Other Penalties for Like Offenses

Petitioners contend that the penalty is grossly disproportional to other penalties assessed for like offenses. Petitioners attempt to cite to a matter before the Commission on the same hearing date in which Commission staff recommended a section 30821 penalty in the amount of $925,000 against Malibu Beach Inn. Pet. RJN Ex. A, p.24.

The Commission settled a section 30821 case on the same day as Petitioners’ hearing for $925,000. AR 504. The critical distinction between the two matters is that, unlike Petitioners, the other proceeding was a settlement in which the Malibu Beach owners were “very recent purchasers [circa 2015] of the property” who “worked with staff to very quickly rectify the violation after having the violation brought to their attention.” Pet. RJN Ex. A, p.24.

On the other hand, the Commission indicated that it settled a similar public access violation in Malibu in 2013 for over $1 million (Ackerberg). AR 504. This is not a fair characterization of Ackerberg. This department handled the Ackerberg enforcement lawsuit and, to the court’s best recollection, Ackerberg had blocked public access to the ocean through an easement on her property for over 30 years, more than three times as long as Petitioners. The Commission did not explain why it settled that case for $1 million in contrast to the more than $4 million penalty imposed in this case. According to the Commission, other settlements for public access violations have been $700,000 in 2016, $400,000 in 2015, and $2.5 million, $600,000, and $575,000 in 2013. AR 504.

The $4.1 million penalty is disproportionate to other penalties in similar matters, but not grossly so on the existing record. The other penalties were all obtained by settlement and only one was obtained pursuant to section 30821. A penalty is not excessive where it is “’both proportioned to the…misconduct and necessary to achieve the penalty’s deterrent purposes.’” Kinney v. Vaccari, (1980) 27 Cal.3d 348, 356 (quoting Hale v. Morgan, (1978) 22 Cal.3d 388, 404).

iv. Ability to Pay

Petitioners do not raise arguments for this factor. See Sainez, supra, 77 Cal.App.4th at 1319-20 (evidence of a defendant’s net worth, not just the value of a particular property, may be received in a civil penalty case).

v. Punishment

The punishment is a civil penalty in the amount of $4,185,000. As Respondents point out (Opp. at 12), section 30821 authorized the Commission to impose a penalty up to $8,370,000 for each violation. AR 500. The Commission elected to impose a penalty for one violation and cut the maximum sum in half. Id.

A consideration of all of the pertinent factors does not justify Petitioners’ conclusion that the penalty is grossly disproportionate to their offense. Petitioners’ fine is within the maximum that the Commission could have imposed, and a civil penalty less than the statutory maximum generally does not run afoul of the federal excessive fines clause. United States v. Mackby, (N.D. Cal. 2002) 221 F.Supp. 1106, 1110-11. A fine greater than that imposed for parties who settle is not grossly disproportionate. See United States v. Goodwin, (“Goodwin”) (1982) 457 U.S. 368, 378-80. The $4.1 million fine is not grossly disproportionate to the fines imposed on settling homeowners. See Ojavan Investors, Inc. v. Coastal Commission, (1997) 54 Cal.App.4th 373, 397-98 ($9.5 million civil penalty imposed by trial court under Coastal Act for deed restriction violations was not grossly disproportionate, in part because of owners’ blatant disregard and need for deterrence).

b. Vindictive Prosecution

Petitioners contend that “vindictive prosecution” played a significant role in the Commission’s determination of the penalty. Petitioners cite the Commission Staff Report which reads: “In summary, [Petitioners] have declined repeatedly over many years to remove the unpermitted development and to provide public access consistent with the permit and Coastal Act. They, therefore, have a high degree of culpability in the violation.” AR 3047. Petitioners also cite to the Commission testimony discussing the voluntary remediation factor of section 30820(c). The Commission representative stated: “[L]ooking at the prior history of violations … staff went into great detail in looking at how many letters, how many points of contact, how many times there were meetings with the respondent that were to no avail.” AR 4258. Another Commission representative stated: “[W]e don’t want to be in a position where rewarding … applicants that have been fighting us and resisting these types of opportunities.” AR 4263. Petitioners contend that they were severely punished for their exercise of their right to petition under the First Amendment. See MHC Fin. Ltd. Pship Two v. City of Santee (2010) 182 Cal.App.4th 1169, 1187, n.16 (right to petition is accorded preferred place in our democratic system). Pet. Op. Br. at 18; Reply at 7.

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort. Goodwin, supra, 457 U.S. at 372. Where the defendant shows that the prosecution has increased the charge in apparent response to the defendant’s exercise of a procedural right, the defendant has made an initial showing of an appearance of vindictiveness. Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371.

The Commission has not punished Petitioners for exercising their constitutional right to petition. Instead, it has punished them for their steadfast refusal to remove the stairway/gate after being informed of the violation. Due process does not allow Petitioners unlawfully to refuse to remove these unpermitted structures, even if they concomitantly exercised their right to petition by wrongly claiming that their refusal was justified.

Moreover, Petitioners have taken the Commissioners’ and staff’s statements out of context. The Commission staff noted that Petitioners possess a high degree of culpability because they were informed about the violations nine years earlier and still refused to remove the gate/stairway. Individual Commissioners commented that Petitioners should not be rewarded for “fighting and resisting” public access with a penalty in a similar amount as the homeowner who cooperatively settled on the same day for $925,000. AR 4263. See also AR 4278(“we have these two different instances of similar problems dealt with in absolutely the opposite – 180 degrees”), or in similar amount to a case where they settled amicably for $725,000 with a homeowner “who acted as quickly as they could once they realized that they were in violation” (AR 4267). Thus, the Commission ensured that Petitioners were punished for their deliberate refusal to remove the stairway/gate. The individual Commissioners who spoke at the hearing wanted to ensure that the penalty was greater than that imposed for cooperative homeowners who settled; they were not retaliating against Petitioners for exercising their First Amendment rights. Reply at 7. See Goodwin, supra, 457 U.S. at 378-80.

4. Due Process

Petitioners contend that section 30821 is unconstitutional facially and as-applied under the due process clauses of the United States and California Constitutions. Pet. Op. Br. at 19. Petitioners proceed with this theory in two ways: (1) Petitioners contend that the Commission is inherently biased because it has a financial interest in the fines it imposes and (2) section 30821 provides insufficient due process guarantees. Pet. Op. Br. at 19-20. Petitioners also contend that section 30821 is unconstitutional facially and as-applied under the excessive fines clauses of the United States and California Constitutions. Pet. Op. Br. at 20.

The federal and state constitutions impose similar procedural limitations on adjudicating state and local agencies. At minimum, an agency must provide private parties with adequate notice, an opportunity for a fair hearing at a meaningful time and manner, and an impartial decision-maker. Today’s Fresh Start, Inc. v. Los Angeles County Office of Education, (“Today’s Fresh Start”) (2013) 57 Cal.4th 197, 212.

To succeed in a facial challenge to the validity of a statute, the plaintiff must establish that the statute’s provisions inevitably pose a total and fatal conflict with applicable constitutional provisions. Tobe v. City of Santa Ana, (“Tobe”) (1995) 9 Cal.4th 1069, 1102. All presumptions favor the validity of a statute, and the court may not declare a statute invalid unless it is clearly so. Id. Under a facial challenge, the fact that the statute or ordinance “might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid….” Sanchez v. City of Modesto, (2006) 145 Cal.App.4th 660, 679.

A timely as-applied challenge where the petitioner’s injury does not arise solely from the law’s enactment may include a facial attack on the measure. Travis v. County of Santa Cruz, (2004) 33 Cal.4th 757, 769. This is because the action challenges the enforcement of the measure and not just its enactment. Id. In this circumstance, the facial challenge to the text of a measure may be made only insofar as it affects enforcement of the measure against the petitioner. Id. at 767.

In assessing due process constitutionality, “[a]ll presumptions favor the validity of a statute”, and a court “may not declare it invalid unless it is clearly so.” Tobe, supra, 9 Cal.4th at 1102. In the exercise of its police power, a legislature does not violated due process so long as the enactment is procedurally fair and reasonably related to a proper legislative goal. Ojavan, supra, 54 Cal.App.4th at 397. It is well accepted that a state may impose reasonable penalties as a means of securing obedience to statutes validly enacted under the police power. Ibid.

a. Impartiality

The right to a fair procedure includes the right to impartial adjudicators. Rosenblit v. Superior Court, (1991) 231 Cal.App.3d 1434, 1448. Unless they have a financial interest in the outcome, adjudicators are presumed to be impartial. Morongo Band of Mission Indians v. State Water Resources Control Bd., (“Morongo”) (2009) 45 Cal.4th 731, 737. Bias and prejudice on the part of an administrative decision maker must be proven with concrete facts. Breakzone Billiards v. City of Torrance, (2000) 81 Cal.App.4th 1205, 1237. Bias and prejudice are never implied. Id.

Petitioners contend that the Commission is an inherently biased tribunal because section 30821 penalties enable the Commission to finance Coastal Act policies, including public access. Pet. Op. Br. at 19. Section 30821 civil penalties are deposited in the Conservancy’s Violation Remediation Account (“VRA”) until appropriated by the Legislature. §30821(j); §30823. When appropriated by the Legislature, the funds must be expended for Coastal Act purposes. §30823. Petitioners conclude that section 30821 guarantees that the Commission will be influenced by the prospect of filling the coffers of its sister agency, the Conservancy. Pet. Op. Br. at 19.

In their facial challenge, Petitioners contrast section 30821’s procedures with those of section 30820. Pet. Op. Br. at 19-20. In a section 30820 action, the Commission must go to the superior court, a disinterested decision-maker, to obtain a civil fine. There is no risk of bias because the court has no financial interest in the fine. Yet, section 30821 places the power to financially destroy individuals in the hands of those who institutionally benefit from the most aggressive exercise of that power. Pet. Op. Br. at 20.

Petitioners’ facial challenge is unpersuasive. As Respondents point out (Opp. at 14), the VRA is managed by the Conservancy, not the Commission. The entities might have similar purposes, but they are distinct. The use of monies collected in an enforcement action to remediate the harm caused by the violation also is not improper. People ex. rel Younger v. Superior Court, (1976) 16 Cal.3d 30, 38-39. The deposit into the VRA of civil penalty funds imposed by the Commission under section 30821 does not fatally conflict with the due process requirement of impartiality.

For their as-applied challenge, Petitioners contend that the Commission was “blinded” by their purported statutory financial interest in exacting a multi-million dollar penalty. Pet. Op. Br. at 19. Petitioners point out that the Commission imposed a penalty over four times greater than recommended by its staff and even entertained a penalty over six times greater. AR 4286. During the hearing, a Commission staff member asked if the Commission had “creative ideas of what to do with [the penalties]” and suggested “that one option might be to fund the construction of this accessway.” AR 4261-62.

Petitioners’ contentions are still unpersuasive. Bias is not implied under Morongo, and Petitioners present no concrete facts of bias. Section 30821 expressly empowers the Commission to authorize a fine within the statutory maximum. The Commission’s discussion of “creative ideas” for use of the civil fine is consistent with the statute’s dictates about the use of the fine for Coastal Act purposes. The Commission’s financial interest is constrained by the nexus between the fine and the section 30820 factors, the Conservancy’s management of the VRA, and the Legislature’s appropriation.

Section 30821 is not facially unconstitutional or as-applied based on the lack of impartial decision-maker.

b. Adequacy of the Procedure

The extent to which due process protections will be available depends on a careful and clearly articulated balancing of the interests at stake in each context. Mohilef v. Janovici, (“Mohilef”) (1996) 51 Cal.App.4th 267, 286. In some instances, this balancing may counsel formal hearing procedures that include rights of confrontation and cross-examination; in others, due process may require only that that the administrative agency comply with the statutory limitations on its authority. Id. The factors considered in this balancing include (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible governmental official; and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 287 (noting balancing test’s similarity to one adopted in Mathews v. Eldridge, (1976) 424 U.S. 319, 341).

Petitioners contend that evaluation of the Mohilef factors demonstrates that section 30821 provides insufficient due process guarantees. Pet. Op. Br. at 20.

(i) Private Interest

Petitioners point out that section 30821’s penalty provision is a quasi-criminal proceeding which enables the Commission to divest the accused of property, including either payment of the fine or recording of a lien, for the purpose of punishment. Pet. Op. Br. at 20.

Whether a statute is civil or criminal is a question of statutory construction. Smith v. Doe, (“Smith”) (2003) 538 U.S. 84, 92). The legislature’s stated intent normally warrants deference, unless the clearest proof overrides the intent. Id. at 93. The court agrees that the Commission’s imposition of a section 30821 fine is a quasi-criminal matter. There is no question that the purpose of a section 30821 fine is to punish. As one Commissioner stated: “[A] penalty is meant to penalize…It’s supposed to hurt.” AR 4278. The fine serves the objective of abating an unlawful public access blockage, and is similar to a nuisance prosecution. While there should be a nexus between the harm and the fine, the Commission may also consider deterrence, which is normally a quasi-criminal issue. See Ojavan, supra, 54 Cal.App.4th at 397 (Commission staff indicating in section 30820 proceeding that deterrent is necessary to prevent reoccurrence). A section 30821 fine may not always impact a significant private interest, but it certainly does in Petitioners’ circumstance.

The $4,185,000 fine concerns a significant private interest.

(ii) Risk of Erroneous Deprivation/Probable Value of Additional Safeguards

Petitioners point out that section 30821 imports the same informal procedures applicable in civil enforcement matters that do not threaten seizure of property. 14 CCR §§ 13065, 13066, 13185-86, 13195. This informal procedure resulted in no opportunity to respond to all adverse testimony, no right to cross-examine adverse witnesses, and no chance to exclude evidence that normally would be inadmissible under standard evidentiary rules. Id. Pet. Op. Br. at 20.

The Commission’s opposition point out (Opp. at 15) that due process is often satisfied if the accused received adequate notice of the nature of the violation and is provided a meaningful opportunity to respond to the charges against him. Mohilef, supra, 51 Cal.App.4th at 276; see also Gai v. City of Selma, (1998) 68 Cal.App.4th 213, 219 (“[P]rocedural due process in an administrative setting requires notice of the proposed action; the reasons therefor; a copy of the charges and materials on which the action is based; and the right to respond to the authority initially imposing the discipline ‘before a reasonably impartial, noninvolved reviewer.’ ”). It is not necessary to provide the full panoply of procedural protections accorded in a judicial trial of the right to cross-examine witnesses or not observe the formal rules of evidence. Mohilef, supra, 51 Cal.App.4th at 288-89.

The court must defer to the Commission’s hearing procedure if it is constitutionally adequate. “Legislatures and agencies have significant comparative advantages over courts in identifying and measure the many costs and benefits of alternative decisionmaking procedures. Thus, while it is imperative that courts retain the power to compel agencies to use decisionmaking procedures that provide a constitutionally adequate level of protection, judges should be cautious in exercising that power.” Today’s Fresh Start, supra, 57 Cal.4th at 230.

The Commission’s opposition notes that Petitioners had the benefit of years of communications with the Conservancy and Commission, a Commission staff report received weeks before the hearing, submitted a substantial Statement of Defense, and received 50 minutes to present their case with an opportunity to propose questions for any other speaker. Opp. at 15.

The court agrees that Petitioners received ample notice of the proposed cease and desist order for the stairway/gate and of the Commission’s staff report for the hearing. While Petitioners did not receive specific notice of the $4.1 million fine actually imposed, the Staff Report informed them that the Commission could impose a maximum fine of $8,370,000 based on one violation, and explained the daily maximum fine, the number of days of violation, and the section 20831 factors. The notice was sufficient. See Pacific Gas & Electric Co. v. Public Utilities Commission, (2015) 237 Cal.App.4th 812, 858-63 (OSC amply warned petitioner that its violation was serious and did not need to specifically warn of a continuing violation to impose a $14 million fine).

The hearing provided by the Commission also was sufficient. In a land-use public hearing context, the safeguards of sworn testimony and cross-examination are unnecessary. Mohilef, supra, 51 Cal.App.4th at 288-302. Land use hearings are traditionally informal and lack the elements of formal trial-type proceedings such as cross-examination and sworn testimony. Id. The Commission was not obligated to abide by the rules of evidence, and could consider any evidence that reasonably could be relied upon as accurate, including hearsay. Petitioners also received sufficient opportunity to present evidence on all issues. The mere fact that other speakers addressed the Commission after Petitioners does not undermine this informal process. See AR 44187-217 (Petitioners), 4217 (MCRA), 4222 (Conservancy), 4248 (staff).

Nonetheless, the $4.1 million fine was substantial and more than four times greater than the $950,000 recommended by staff. The Commission deviated upward from the staff-recommended $950,000 fine primarily because it felt that Petitioners’ fine should be substantially greater than the $925,000 paid that same day by a settling public access violator who had been cooperative. AR 504, 4263, 4267, 4278. Petitioners had no opportunity to argue against the Commission’s assessment of the other matter or its reasoning for imposition of a considerably larger fine. The risk of erroneous deprivation is increased when an agency deviates upward from the staff-recommended fine without the offender having an opportunity to argue against it.

The Commission also (a) wrongly concluded that Petitioners’ violation was not susceptible to remedial measures under section 30820(c)(2), (b) did not give Petitioners the chance to rebut the Commission’s conclusion that their vacation rentals were aided by their blockage of the stairway/gate (their lawyer merely argued that the rentals do not cover the mortgage and property taxes), and (c) did not give Petitioners the chance to show that the $4.1 million fine was disproportionate to other similar public easement matters, most particularly Ackerberg.

These factors bear only on the amount of fine. If given the opportunity to address a proposed $4.1 million fine, Petitioners may have been able to present evidence and at least argue against each of those matters. They also could have addressed their ability to pay a $4.1 million fine and the value of the Property in relation to the fine. Substantive due process in a civil penalty matter allows consideration of evidence of a defendant’s net worth, not just the value of a particular property at issue. Sainez, supra, 77 Cal.App.4th at 1319. These failures were aggravated by the Commission’s apparent focus on deterrence without also considering the nexus between the section 30820 factors they found and the ultimately fine. Civil penalties may have a punitive or deterrent aspect, but their primary purpose is to secure obedience to statutes and regulations serving an important public policy. Id. at 1315. The Commission’s focus at the hearing on deterrence in deciding whether the fine should be $6.2 or $4.1 million seems arbitrary and not tied to the section 30820 factors.

The risk of erroneous deprivation and probable value of additional safeguards is not supported facially, but it is as applied to Petitioners. The amount of the fine in this case is substantial and the hearing procedure did not give Petitioners an opportunity to present all available evidence and argue against the $4.1 million penalty imposed. An additional opportunity to present evidence would have enhanced the reliability of the quasi-criminal proceeding and the fine actually imposed, and a safeguard permitting Petitioners to present additional penalty evidence would not adversely impact the Commission’s procedure.

(iii) Dignitary Interest

Petitioners contend that application of judicial rules of procedure and evidence to a section 30821 proceeding would provide necessary safeguards to protect Petitioners from arbitrary deprivation and thereby would protect their dignitary interest. Pet. Op. Br. at 20.

Petitioners’ dignitary interest supports a procedure in which they may present evidence on a proposed $4.1 million penalty. It does not support a formal proceeding with evidentiary rules and witness cross-examination.

(iv) Governmental Interest

Petitioners contend that enacting more stringent procedures and evidentiary requirements could save the government time and resources currently expended on allowing the presentation of deficient evidence and testimony. Pet. Op. Br. at 20.

The Commission’s governmental interest in conducting the public hearing weighs against burdening the section 30821 fine process with witness cross-examination, in limine hearings, and formal evidentiary rules. On the other hand, the governmental interest is not burdened by permitting Petitioners to provide additional evidence on the $4.1 million fine.

(v) Conclusion

Petitioners’ due process guarantees argument mostly lacks merit. While not constitutionally compelled by due process, the better practice would be for the Commission to notify an offender of the specific amount that it intended to impose, as recommended by staff or greater, and then give the offender an opportunity to present evidence and argue against it. In this particular case, due process requires that the Commission comply with this practice and give Petitioners an additional opportunity to present evidence and argue against the $4.1 million fine.[13]

F. Conclusion

The Petition for writ of mandate is granted in part. A writ shall issue directing the Commission to set aside the fine, give notice to Petitioners of a specific proposed section 20831 fine, and give them an opportunity to present additional evidence and argue against it or for a lower fine. In all other respects, the Petition is denied.

Petitioners’ counsel is ordered to prepare a proposed writ and judgment, serve it on the Commission’s 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 June 19, 2018 at 1:30 p.m.

[1] Both parties’ opening briefs are 15 pages plus a signature page, and Petitioners’ reply is 10 pages plus a signature page. Counsel are reminded that the page limits of CRC 3.1113(d) include the signature line. Petitioners’ reply footnotes violate the 12-point type requirements of CRC 2.104 and have not been read or considered.

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

[3] Petitioners ask the court to judicially notice the Commission’s staff report for another matter in 2016. Respondents ask the court to judicially notice the Conservancy’s staff report regarding MRCA’s preparation of the Malibu Coastal Access Public Works Plan. A staff report is the equivalent of legislative history for agency action, but the court has no evidence that either the Commission or the Conservancy adopted the respective reports. Without it, neither document is an official act of an agency. Nonetheless, since both sides admit that the Commission did adopt the two staff reports, the requests are granted. See Evid. Code §452(c).

[4] Some of the following facts are unsupported by citation because the parties failed to include the cited page in the Joint Appendix. There is no dispute that the facts are true.

[5] According to Petitioner Warren Lent, the gate protects the public from a 6 to 7 foot drop from PCH onto the easement. AR 2331-32.

[6] Pursuant to section 30812, the Commission may, after hearing if there is an objection, record the notice of violation which shall be considered notice to all successors-in-interest of the property.

[7] The Commission staff report for the Malibu PWP is in the record (AR 2092-103), but not the Commission’s action adopting it.

[8] Petitioners overstate the Commission’s concession. The Commission staff only admitted that Petitioners are not the original Property owners and did not place the stairway/gate on the Property. AR 3048. This statement is not a concession that Petitioners have not undertaken any activity in violation of section 30810(a).

[9] Petitioners contend that they were told by the Commission that they could keep the gate until construction of a public walkway began. AR 2331-32. Pet. Op. Br. at 9, 10. This promise has no bearing on their violation of section 30810, and would at most support only an agency estoppel claim, which has not been made.

[10] Section 30820 permits a superior court to award a civil penalty of not less than $1,000 and not more than $15,000 per day for each day of violation under similar circumstances of a development that is in violation of the Coastal Act or inconsistent with a CDP, local coastal program, or certified port master plan.

[11] Section 4 of Article X of the California Constitution states in relevant part: “No individual … claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose.”

[12] Petitioners contend that the Commission’s decision mistakenly assumed that the stairway/gate interferes with public access as opposed to blocking a closed easement that only recently became a candidate for Conservancy/MRCA development. Pet. Op. Br. at 14. This argument ignores the Conservancy’s initial tentative effort in 1993, as well as the Conservancy’s and the Commission’s more concerted effort beginning in 2007 and continuing thereafter.

[13] Petitioners contend that section 30821 is unconstitutional facially and as-applied under the excessive fines clauses of the United States and California Constitutions. Pet. Op. Br. at 20. Petitioners contend that section 30821 dispenses with the explicit mandate in case law to consider proportionality in levying fines. Id. Instead, section 30821 promotes excessive fines by permitting consideration of the state’s costs and the violator’s economic profits. Id. Petitioners’ argument is unavailing. The section 30820 factors permit consideration of proportionality, and the governing statute need not expressly mandate constitutional conformity.