Thomas Felkay v. City of Santa Barbara
Case No: 17CV03351
Hearing Date: Tue Mar 19, 2019 9:30

Nature of Proceedings: Writ of Mandate

Motion for Judgment on Petition for Writ of Mandate

Attorneys:

For Petitioner/Plaintiff: Joseph Liebman; Steven H. Kaufman (Nossaman LLP – Los Angeles); Richard Monk (Hollister & Brace)

For Respondent/Defendant: Kendall H. MacVey (Best Best & Kreiger – Riverside); Bruce W. Beach (Best Best & Krieger – San Diego)

Ruling: The Court denies the petition for writ of mandate filed by Thomas Felkay, as trustee of the Emprise Trust. The Court will consider setting a trial date to address the two counts of inverse condemnation [Temporary Regulatory Taking; U.S. Const. amend. 5; Cal. Const., art. 1, § 19] and invites your recommendations as to what those dates should be.

Background:

Thomas Felkay, as trustee of the Emprise Trust (“Emprise”), filed his petition for writ of mandate and complaint for inverse condemnation against the City of Santa Barbara (“City”). The action arises out of City’s June 6, 2017, denial of Emprise’s application for Coastal Development Permit 2013-00014 (“CDP”).

The causes of action in the petition/complaint are: 1) Administrative Mandamus (CCP § 1094.5); 2) Inverse Condemnation (U.S. Const. amend. 5; Cal. Const., art. 1, § 19 – the Coastal Act, City’s LCP and zoning laws, and other requirements caused deprivation of all economically feasible and beneficial use of the property); 3) Inverse Condemnation – Temporary Regulatory Taking; and 4) Inverse Condemnation (U.S. Const. amend. 5; Cal. Const., art. 1, § 19 – City-caused geologic destabilization).

On January 9, 2018, the Court sustained the demurrer to the fourth cause of action without leave to amend. The Court set the hearing on the petition for writ of mandate, with a date for trial of the causes of action in the complaint to be set after the mandate determination.

Mandamus:

By stipulation and order entered April 11, 2018, the issues to be adjudicated by the Court on the hearing on the Writ of Mandate are the following (as well as any sub-issues the parties raise in their briefs):

(a) Whether under Santa Barbara Municipal Code section 28.44.150: The Applicant has failed to demonstrate that the project is consistent with the policies of the California Coastal Act and with the applicable policies of the City’s Local Coastal Plan, all applicable implementing guidelines, and all applicable provisions of the Code.

(b) Whether under Public Resources Code section 30250(a): The proposed new residential development will be located in a location on the bluff face where it will have significant adverse effects, either individually or cumulatively, on coastal resources.

(c) Whether under Public Resources Code section 30253: The Applicant has failed to demonstrate that the proposed new development minimizes risks to life and property in an area of high geologic hazard. The Applicant has failed to demonstrate that the proposed new development assures stability and structural integrity, and that the project will neither create nor contribute significantly to erosion or geologic instability.

(d) Whether under Local Coastal Plan Policy 5.3: The development is not compatible with the (sic) in terms of scale, size, and design with the prevailing character of the established neighborhood because the proposed residence would sit well below and closer to the ocean than nearby surrounding structures.

(e) Whether under Local Coastal Plan Policy 8.2: The Applicant has failed to demonstrate that the development is not on the bluff face. “The Council makes the following determinations and findings pursuant to the Santa Barbara Municipal Code section SBMC §28.44.060: The project is inconsistent with the City of Santa Barbara Local Coastal Plan Policy 8.2, which states, “With the exception of drainage systems identified in Policy 8.1, no development shall be permitted on the bluff face except for engineered staircases or accessways to provide public beach access and pipelines for scientific research or coastal dependent industry. To the maximum extent feasible, these structures shall be designed to minimize alteration of the bluff and beach, because the applicant has not demonstrated that his proposed construction site is not on a bluff face.”

Notwithstanding that list of issues, City relies on the conclusion that the proposed development is located on the bluff face. The Court will, therefore, address only the location of the bluff face on the property. City contends that the bluff edge is located at the 127-foot elevation while Emprise maintains that the bluff edge is at the 48-52-foot elevation.

1. Standard of Review: When a court reviews a city’s denial of a development permit, it applies the substantial evidence test. Jamieson v. City Council of the City of Carpinteria, 204 Cal.App.4th 755, 763 (2012). “In such a review, the court presumes that the findings and actions of the agency are supported by substantial evidence. The court may not reweigh the evidence. Moreover, the court must consider the facts in the light most favorable to the agency, giving it every reasonable inference and resolving all conflicts in its favor. Thus, unless the findings are so lacking in evidentiary support as to render them unreasonable, the courts must uphold the findings.” Id. [internal quotations and citations omitted].

2. Facts and Administrative Proceedings: Emprise proposed construction of a new 2,789 square-foot single family home, with an attached 571 square-foot two-car garage, on an existing designated and zoned single family residential lot, 1925 El Camino De La Luz (the “property”) in the City and within the California coastal zone (the “project”). [Administrative Record (“AR”) 3540; Petition (“Pet.”) ¶¶1, 4] The property is located in an area with a history of instability, including a 1978 landslide that destroyed the then existing home on the property. [AR 3096-3097; Pet. ¶¶15-22]

City’s Community Development Department, Planning Division prepared the Initial Study/Environmental Checklist for the project, adopted on July 7, 2016. [AR 1476-1515] This study was the Final Mitigated Negative Declaration for the project would be prepared pursuant to the California Environmental Quality Act (CEQA). [AR 1513, 2627] (The Court will refer to this as the “MND.”) In its staff report of August 18, 2016, City’s Planning Division recommended approval of the CDP for the project to the Planning Commission. [AR 2615]

City Planning Division wrote: “If the project is found inconsistent with policy 8.2 of the LCP, the Planning Commission could not make the required findings and could deny the Costal Development Permit. However, denial of all economic use of a parcel without just compensation may result in an unconstitutional ‘taking’ of an applicant’s property, which is not allowed under Public Resources Code Section 30010, referenced above. In order to avoid a potential taking the Planning Commission can seek to identify a project approval that, while not fully consistent with all coastal policies, would be consistent with coastal policies to the extent feasible.” [AR 2721] Staff recommended approval of the CDP. [AR 2624]

On August 25, 2016, the Planning Commission denied Emprise’s application for the CDP based solely on the finding that the project inconsistent with LCP Policy 8.2. [AR 2928] Emprise appealed and, on June 6, 2017, the City Council denied the CDP by Resolution No 17-091. [AR 5842]

The Court will discuss other facts and evidence in its analysis below.

3. Applicable Law: City adopted its Local Coastal Plan (LCP) in May 1981. The California Coastal Commission certified the LCP as meeting the minimum requirements of the California Coastal Act in June 1981. [AR 5609] The part of the LCP relevant here is Policy 8.2, which reads, in relevant part: “With the exception of drainage systems identified in Policy 8.1, no development shall be permitted on the bluff face except for engineered staircases or access ways to provide public beach access and pipelines for scientific research or coastal development industry.” [AR 5757] The LCP does not define “bluff face.”

City contends that some language in the LCP suggests the meaning of “bluff face.” The area where the property is located is known as “the Mesa,” which “is situated on relatively level, continuous bluffs which vary in elevation but average 150 feet. (From the bluffs’ edge inland the terrain has an approximate 5% slope which affords some inland ocean views.” [AR 5633] In Oliver Road area where the property is situated, the LCP describes the topography: “Generally, this area slopes toward the ocean. The bluff face is approximately 115 ft. above sea level.” [AR 5655] City argues that this language, rather than Coastal Commission’s regulation § 13577, indicates the meaning of “bluff face.”

Emprise contends that “bluff face” must be determined in accordance with 14 CCR § 13577(h)(2), which defines “coastal bluff” as “those bluffs, the toe of which is not now or was not historically subject to marine erosion, but the toe of which lies within an area otherwise identified in Public Resources Code Section 30603(a)(1) or (a)(2).”

Bluff line or edge shall be defined as the upper termination of a bluff, cliff, or seacliff. In cases where the top edge of the cliff is rounded away from the face of the cliff as a result of erosional processes related to the presence of the steep cliff face, the bluff line or edge shall be defined as that point nearest the cliff beyond which the downward gradient of the surface increases more or less continuously until it reaches the general gradient of the cliff. In a case where there is a steplike feature at the top of the cliff face, the landward edge of the topmost riser shall be taken to be the cliff edge.

The termini of the bluff line, or edge along the seaward face of the bluff, shall be defined as a point reached by bisecting the angle formed by a line coinciding with the general trend of the bluff line along the seaward face of the bluff, and a line coinciding with the general trend of the bluff line along the inland facing portion of the bluff. Five hundred feet shall be the minimum length of bluff line or edge to be used in making these determinations.

This regulation does not directly define or even use the term “bluff face.” Indeed, the regulation is confusing by using the terms “bluff” and “cliff” interchangeably.

In Resolution 17-091, by which City Council denied Emprise’s appeal and upheld the denial of the project, City cites § 13577 immediately after Policy 8.2. [AR 5477-5478] and City Planning Commission staff stated: “The bluff face is the area below the tope of bluff/bluff edge.” Then staff quoted 14 CCR § 13577 and indicated that determination of the “top of bluff/bluff edge” would control. [AR 2343] In the MND, after citing both § 13577 and Policy 8.2, this study states: “A determination of bluff top or edge location is done as a first step toward identifying a development setback from the bluff edge.” [AR 5069-5070] The August 18, 2016 Planning Commission Staff Report includes the following: “In order to determine whether the proposed project is potentially consistent with Policy 8.2 above, the location of the bluff face and top of bluff/bluff edge must first be determined. The bluff face is the area below the top of bluff/bluff edge. … The definition of top of bluff/bluff edge is found in the California Code of Regulations Title 14, §13577….” [AR 2620-2621] It then quotes the language of the regulation set forth above.

City’s argument that Policy 8.2 establishes a bluff face other than the area below the bluff edge as defined in § 13577 is not supported by the evidence and City’s consistent position during the administrative process. City staff through City Council all adopted the meaning of bluff face as the area below the bluff edge as defined in § 13577.

4. The Bluff Face: The Court must deny the petition for writ of mandate if it finds that the findings and actions of the agency are supported by substantial evidence. Specifically, the Court will deny the petition if it finds that the 127 bluff edge finding is supported by substantial evidence. The Court will not reweigh the evidence and will consider the facts in the light most favorable to City.

a. Geologists’ Location of Bluff Edge: After a review of topography, submitted project plans, technical information, a site visit by Coastal Commission staff planner and staff geologist and City planning staff, City determined, using current Coastal Commission guidance: “The site was considered to have a step-like feature rather than one top rounding away from the cliff, and the top of bluff/bluff edge was identified at the 127 foot location.” [AR 5070] Emprise’s geologist “identifies the bluff to be rounded away from the cliff with the top of bluff/bluff edge at the 51-foot elevation, and concludes that no upper tier/bluff edge exists, based on analysis of historical mapping, aerial photos, and site investigation.” [Id.]

City relies on Coastal Commission staff geologist, Mark J. Johnsson. He authored a 2003 document entitled “Establishing Development Setbacks from Coastal Bluffs,” on which City relies. [AR 5070, 1449-1469] In that document, he states: “The bluff edge is simply the line of intersection between the steeply flopping bluff face and the flat or more gently sloping bluff top. Defining this line can be complicated, however, by the presence of irregularities in the bluff edge, a rounded or stepped bluff edge, a sloping bluff top, or previous grading or development near the bluff edge.” [AR 1451-1452] He then states that a set of standards for defining the bluff edge is necessary. “The definition is largely qualitative, and the interpretation of the topographic profile to yield a bluff edge determination at any given coastal bluff may be subject to various interpretations. Accordingly, it may be useful to use more quantitative means to define ‘bluff edge.’” [AR 1452] He does not reach a quantitative means, but says: “Better results may be obtained by finding the point at which the second derivative, the rate of change in steepness, of the topographic profile increases sharply.” [Id.] The rest of his study deals with determining the setback from a determined bluff edge. He does say that “it is critical that the same criteria for the identification of the bluff edge was used in each survey,” citing 14 CCR § 13577(h)(2). [AR 1461]

Johnsson prepared a Geotechnical Review Memorandum for this project dated August 9, 2016. [AR 3595-3599] He identifies the bluff edge “as that point where ‘the downward gradient of the surface increases more or less continuously until it reaches the general gradient of the cliff.’” [AR 3598] The quoted language is from 14 CCR § 13577(h)(2). Johnsson provides a cross section of the topography of the site. [Id.] This shows a relatively flat surface on the northernmost third (approximately) of the property, a sloping segment for the next third of the property, and then a steeper sloping portion down to the beach. This appears consistent with Emprise’s geologist’s cross section. [AR 205, 1166] Johnsson identifies the bluff edge at approximately 127 feet elevation. [AR 3598]

City staff identified several documents supporting the 127 foot bluff edge determination in its June 2016 Summary of Comments and Responses regarding the final MND. [AR 1866]

Emprise maintains that there are no “steps” above the 51 foot level. The term “step” is not defined in 14 CCR 13577(h)(2). The record includes a representation of the site with contour lines. [AR 2115] Each line appears to represent five feet. The lines are very close together up to 50 feet, are relatively close together to 75 feet, and are farther apart up to 125 feet, above which it is relatively flat. A similar representation of steps is at AR 1598.

This representation supports City’s conclusion that there is a “steplike feature at the top of the cliff face.” The topmost “riser” is, therefore, the cliff edge (in the language of § 13577(h)(2)) or the bluff edge (in the language used in discussion in this case).

Emprise emphasizes its expert’s extensive analysis leading to the conclusion that the bluff edge is at 48-52 feet. [AR 1368-1372, et al.] But the Court does not reweigh the evidence.

b. 500 Feet Factor: Emprise argues that the bluff edge cannot be at 127 feet because that does not have a minimum length of 500 feet. (It is 476.5 feet. [AR 5363]) The last paragraph of 14 CCR § 13577(h)(2) reads: “The termini of the bluff line, or edge along the seaward face of the bluff, shall be defined as a point reached by bisecting the angle formed by a line coinciding with the general trend of the bluff line along the seaward face of the bluff, and a line coinciding with the general trend of the bluff line along the inland facing portion of the bluff. Five hundred feet shall be the minimum length of bluff line or edge to be used in making these determinations.”

The Coastal Commission’s Megan Sinkula explained the meaning of that paragraph:

As can be seen, the 500-foot (minimum) trend line is used to define the general trend of the coastal bluff as opposed to a canyon or fluvial-facing bluff. The point on the bluff reached by the line bisecting the angle formed by the coastal bluff trend line and the canyon bluff trend line is the point at which a coastal bluff transitions to a canyon bluff. The 500-foot criterion is meant to assure that minor indentations in a coastal bluff do not constitute a transition to a canyon bluff. That is the only significance of the 500-foot criterion. This language does not pertain to whether a landslide scarp constitutes part of a coastal bluff (i.e., some minimum length of bluff needed for a landslide scarp to constitute a coastal bluff). [AR 2012, italics in original] She says the language “is best understood by referring to the figure that accompanied the 1979 Staff Report adopting the regulation (Section 13577).” [Id.] That figure appears in the record and shows a terminus of a seaward bluff face at a canyon bluff. [AR 1984]

An “agency’s own interpretation of its regulation is entitled to great weight.” Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1, 9 (1998) [internal quotation and citation omitted]. The Court accepts this interpretation of the 500-foot provision in the regulation.

c. Doolittle Report: Emprise claims that the Coastal Commission previously determined that the bluff line was at the lower elevation of 51 feet. This comes from a February 7, 1984 Coastal Commission staff report prepared for the application by Jennette Doolittle to restore the landslide area on her property to reinforce an existing single family residence (the “Doolittle Report”). [AR 2417-2437] The Doolittle house at 1933 El Camino De La Luz and an adjacent house were above 110 feet in elevation. [AR 2429]

In that report, Coastal Commission staff stated that the slope restoration will be located seaward of the residences and “inland of the beach and bluff edge area.” [AR 2419] It also stated: “The proposed site will be inland of the bluff face and bluff edge.” [AR 2417]

Emprise argues that this language should control. Pub. Res. Code § 30625(c) provides: “Decisions of the commission, where applicable, shall guide local governments or port governing bodies in their future actions under this division.”

The Doolittle Report did not say anything about the bluff edge on Emprise’s property, though the property is close by. The bluff edge statement in the Doolittle Report is not a decision of the Coastal Commission. The Report does not say where the bluff edge is or how that was determined. More importantly, the location of the bluff edge was not relevant to approval of that application. “The major issue related to geologic hazards (PRC Section 30253).” [AR 2417] No development was proposed that would have invoked LCP Policy 8.2’s prohibition against development on the bluff face.

Pub. Res. Code § 30625(c) does not apply to a fact stated in a Coastal Commission decision that was not necessary to the decision. The Court does not find that there was an inconsistent determination of the location of the bluff face.

5. Pub. Res. Code § 30010: City addresses the alternative means of approving the project even if it does not meet the requirements of the LCP. Pub. Res. Code § 30010 provides:

The Legislature hereby finds and declares that this division is not intended, and shall not be construed as authorizing the commission, port governing body, or local government acting pursuant to this division to exercise their power to grant or deny a permit in a manner which will take or damage private property for public use, without the payment of just compensation therefor. This section is not intended to increase or decrease the rights of any owner of property under the Constitution of the State of California or the United States.

This statute authorizes City to approve a project “where doing so is necessary to avoid an unconstitutional taking.” McAllister v. California Coastal Com., 169 Cal.App.4th 912, 939 (2008). To do this, City would have to find “that the property was purchased with the expectation of residential use, that such expectation was reasonable, that the investment was substantial, and that the proposed development was commensurate with the reasonable investment-backed expectations for the site.” Id. at 940.

City points out that Emprise presented no evidence that would support these required findings. Emprise does not address this issue, so the Court deems the argument abandoned for purposes of the petition for writ of mandate.

City points out that the evidence demonstrates that there are alternative building options and Emprise acquired the property with knowledge of the challenges of developing the property. [AR 5346-5349, 5480-5481] There is no evidence of an investment-backed expectation that Emprise could develop the property below the 127-foot elevation.

6. Conclusion: For reasons discussed above, the Court finds that the City of Santa Barbara’s findings and actions in adopting Resolution No. 17-091 are supported by substantial evidence. Therefore, the Court denies the petition for writ of mandate filed by Thomas Felkay, as trustee of the Emprise Trust.