Date: 10-21-2019

Case Style:

Case Number: B293301

Judge: Rubin, P.J.

Court: California Court of Appeals Second Appellate District, Division Five on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Jeffrey W. McCoy, Lawrence G. Salzman and Joshua P. Thompson and David R. Greene

Defendant's Attorney: Xavier Becerra, Daniel A. Olivas, Christina Bull Arndt, Andrew M. Vogel, and Erica B. Lee

Description: In this appeal, appellants Mark and Bella Greene challenge
the California Coastal Commission’s permit condition for the
remodel of their beachside residence. The condition requires
construction be set back five feet from the seaward property line.
The Greenes argue the Commission erred in finding that a fivefoot
buffer was needed to safeguard the public’s access to the
beach and associated walkway. The Greenes also contend the
five-foot setback requirement constituted an unconstitutional
taking of their property. We disagree and affirm the trial court’s
denial of the Greenes’ petition for writ of administrative
mandate.
1
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, the Greenes hired an architect to design the
remodel of their beachfront property. The architect developed
plans to add 1,190 square feet to their 2,410-square-foot duplex.
The existing residence was set back from the seaward property
line by 15 feet. The proposed construction would extend the
residence to 1.5 feet from the seaward property line on the
ground level; the second level would be built up to the property
line with no setback.
The property abutted “Ocean Front Walk,” the designated
location for the City of Los Angeles’s public walkway on the
beach. Construction of the concrete walkway was happening
“intermittent[ly]”—the City’s practice was to require applicants
for new residences to construct the portion of the path located
seaward of any residential property, or pay an “in-lieu fee” to the
City for future development of the walkway. In the Greenes’

1 As this appeal concerns only the setback we do not address
the other conditions placed on the permit or the Greenes’
challenges to those conditions in the trial court.
3
case, the City did not require them to construct part of the
walkway because the proposed project was an addition to an
existing structure, not a new residence.
On June 28, 2016, the City approved a permit for the
Greenes’ proposed remodel. Because the property is in a dual
permit jurisdiction, the Greenes also had to obtain approval from
the Commission. In August 2016, the Greenes filed an
application for a coastal development permit with the
Commission seeking approval for the remodel.
On February 23, 2017, the Commission published a staff
report recommending approval of the Greenes’ permit application
with several conditions including a five-foot setback from the
seaward property line. The report found that public access
concerns justified the imposition of the setback condition.
According to the Commission staff, the City had historically
prioritized setbacks for new developments abutting residential
properties and deprioritized setbacks for new developments
abutting public lands. The Commission staff found that some
residences were built so close to the seaward property line that
the public area appears to be private. The staff found that a 1.5-
foot buffer would not allow adequate space on the Greenes’
property for normal maintenance, such as painting or repairs,
absent encroachment on public land. The staff further found that
where there were inadequate setbacks, beachfront homeowners
tended to use designated public areas as their backyard. The
report concluded:
“the provision of a 5 foot setback from the rear (seaward)
property line should be considered the minimum setback
necessary to allow for normal repair and maintenance
activities of the residence on site to occur on the applicants’
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property without requiring encroachment into public beach
and Ocean Front Walk areas, provide for a minimum
privacy buffer, avoid the appearance of privatization of the
area designated for Ocean Front Walk, and minimize
potential conflicts between property owners and members
of the public using Ocean Front Walk. [¶] Therefore, the
development, as conditioned, is consistent with the public
access and recreation policies of Chapter 3 of the Coastal
Act.”2
In a separate section of the report, the Commission staff
expressed concern about future rises of sea level as another basis
to support the imposition of the five-foot setback:
“[T]he proposed development is located in an area where
coastal hazards exist that could adversely impact the
development, and due to sea level rise, the Commission
imposes [the condition] which requires that the proposed
development have at least a 5-foot rear (seaward side)
setback . . . .”
On March 9, 2017, following the receipt of the staff
recommendation, the Commission held a hearing on the
application. Multiple commissioners raised concerns about the
setback condition and one commissioner moved to remove it from
the permit. The motion failed, and the Commission then
unanimously approved the permit as recommended in the staff
report. The commissioners did not specify at the time of the vote
which findings they had adopted from the staff report.

2 Chapter 3 of the California Coastal Act of 1976 is
comprised of sections 30200 to 30265.5 of the Public Resources
Code.
5
On May 5, 2017, the Greenes filed a petition for writ of
administrative mandate and a complaint for declaratory and
injunctive relief seeking to invalidate the five-foot setback
condition. The Greenes argued the setback constituted an
unconstitutional taking. The Greenes also asserted that the
Commission had abused its discretion because there was no
substantial evidence the remodel would “adversely affect public
access and recreation.”
The trial court denied the petition concluding (1) as to the
unconstitutional taking claim, the Greenes had not exhausted
their administrative remedies on the point because they had not
argued before the Commission that the setback condition resulted
in a taking, (2) the condition did not, in any case, result in a
taking, and (3) substantial evidence supported the Commission’s
findings that a setback of less than five feet would effectively
privatize the beach seaward of the property, necessitate intrusion
into the public right-of-way for routine repairs, and create
conflicts between the Greenes and the public. The court found
that the Commission’s other stated rationale for imposing the
setback condition—the risk of sea level rise—was not supported
by substantial evidence because it was premised on “ ‘generalized
speculation.’ ”
The Greenes timely appealed.
DISCUSSION
1. The California Coastal Act
The Coastal Act (Pub. Resources Code, § 30000 et seq.)3
“ ‘was enacted by the Legislature as a comprehensive scheme to
govern land use planning for the entire coastal zone of

3 All further statutory references are to the Public Resources
Code unless otherwise stated.
6
California.’ ” (Pacific Palisades Bowl Mobile Estates, LLC v. City
of Los Angeles (2012) 55 Cal.4th 783, 793 (Pacific).) “The Coastal
Act requires a person wishing to undertake development in the
coastal zone to obtain a coastal development permit. (§ 30600,
subd. (a).) Prior to certification of a local coastal program, and
absent a local government procedure for issuing coastal
development permits, the Commission or local government shall
issue coastal development permits. (§ 30600, subd. (c).)” (Douda
v. California Coastal Com. (2008) 159 Cal.App.4th 1181, 1188
(Douda).) “[I]n certain areas, sometimes referred to as dual
permit jurisdictions, an applicant must obtain a permit from the
local entity and after obtaining the local permit, a second permit
from the commission. (Pub. Resources Code, §§ 30600, 30601;
Cal. Code Regs., tit. 14, § 13301, subd. (a).)” (Pacific, supra,
55 Cal.4th at p. 794.)
A “coastal development permit shall be issued if the issuing
agency, or the commission on appeal, finds that the proposed
development is in conformity with the [provisions of] [c]hapter 3”
of the Coastal Act. (Douda, supra, 159 Cal.App.4th at pp. 1188–
1189.) Chapter 3 sets forth policies that protect public coastal
access, recreational uses, and marine biological resources, among
other things. (§§ 30210–30214.) These policies “constitute the
standards by which . . . the permissibility of proposed
developments subject to the provisions of this division are
determined.” (§ 30200, subd. (a).)
The Coastal Act directs the Commission to maximize the
public’s access to and along the coast consistent with the rights of
private property owners. (§§ 30001.5, subd. (c), 30210.)
Chapter 3’s policies protect such public access by, among other
things, precluding development from interfering with such use
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(§§ 30211, 30212) and protecting oceanfront land suitable for
recreational use (§ 30221). Chapter 3 also requires the
Commission to minimize potential conflicts between the public
and beachfront property owners (§ 30214, subd. (b)). The
Commission must resolve potential conflicts between Chapter 3
policies in a way that, on balance, is most protective of significant
coastal resources (§ 30007.5). The Coastal Act also requires the
Commission to consider a proposed project’s cumulative effects in
light of other present, past, and probable future developments.
(§ 30105.5; Stanson v. San Diego Coast Regional Com. (1980)
101 Cal.App.3d 38, 47–48.)
2. Standard of Review
The Coastal Act provides for judicial review of a
Commission decision by administrative mandate action under
Code of Civil Procedure section 1094.5. (§ 30801.) Section 1094.5
requires the trial court to determine whether substantial
evidence supports the Commission’s decision. (Code Civ. Proc.,
§ 1094.5, subd. (c).) In reviewing the Commission’s permit
decisions, the Court of Appeal applies the same standard of
review as the trial court. (La Costa Beach Homeowners’ Assn. v.
California Coastal Com. (2002) 101 Cal.App.4th 804, 814–815 (La
Costa).)4
The administrative agency’s decision must be based on the
evidence presented at the hearing. (Board of Medical Quality
Assur. v. Superior Court (1977) 73 Cal.App.3d 860, 862.) The

4 The parties quarrel with whether this court should give
deference to the Commission’s interpretation of the Coastal Act
and resulting regulations. We need not resolve this dispute as we
conclude this appeal does not present issues of Commission
statutory or regulatory interpretation.
8
administrative agency is only required to issue findings that give
enough explanation so that parties may determine whether, and
upon what basis, to seek review of the decision. (Topanga Assn.
for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d
506, 514–515.) “Unless otherwise specified at the time of the
vote, an action taken consistent with the staff recommendation
shall be deemed to have been taken on the basis of, and to have
adopted, the reasons, findings and conclusions set forth in the
staff report . . . .” (Cal. Code Regs., tit. 14, § 13096.) It is not
necessary that every finding be supported by substantial
evidence, as long as the findings that are supported by
substantial evidence are sufficient to support the decision of the
Commission. (Saad v. City of Berkeley (1994) 24 Cal.App.4th
1206, 1213–1214; Reddell v. California Coastal Com. (2009)
180 Cal.App.4th 956, 967.)
A petitioner challenging the administrative decision bears
the burden of demonstrating error. (Ross v. California Coastal
Com. (2011) 199 Cal.App.4th 900, 921.) “Courts may reverse an
agency’s decision only if, based on the evidence before the agency,
a reasonable person could not reach the conclusion reached by the
agency.” (La Costa, supra, 101 Cal.App.4th at p. 814.)
3. Substantial Evidence Supports the Commission’s
Determination that the Remodel Would Have an
Adverse Impact on the Public’s Access to the Beach
The Greenes first challenge the Commission’s finding that
the proposed construction would effectively privatize the beach in
violation of the Coastal Act’s public access policies. They argue
this finding is not supported by substantial evidence because
there was no evidence the remodel would interfere with the
public’s access to the beach. We disagree.
9
The Greenes cloak their point with the claim that it is
speculative for the Commission to find that the Ocean Front
Walk would be completed at all. If there will be no walkway,
then the remodel’s 1.5-foot setback on the ground floor and lack
of a setback on the second floor could not possibly interfere with a
walkway. The Greenes ignore evidence the City had consistently
required all development of beachfront property along the
designated location for this walkway to include construction of
part of the walkway or pay an in-lieu fee. This was substantial
evidence that the walkway would continue to be built, albeit
slowly.
The Commission’s finding that less than a five-foot setback
from the walkway would effectively privatize public land was
based in part on anticipated conflicts with the public’s use of the
beach set aside for the walkway. The Commission found that the
minimal 1.5-foot setback proposed by the Greenes would (1) not
permit maintenance—such as painting and repair—of the
property without intrusion into the walkway, (2) would deceive
the public into believing that some of the public land belonged to
the Greenes, and (3) could result in privacy complaints from the
Greenes or future homeowners at the property when the public
walks within 1.5 feet of their residence.
The Greenes argue that the remodel cannot interfere with
the public’s access to the beach because the construction would
not physically intrude onto public property. However, the
Commission could reasonably infer from the fact that the
remodel’s second floor was flush with the property line, and the
first floor was only 1.5 feet away, that routine maintenance such
as painting would physically intrude into the designated location
for the walkway. It was also reasonable for the Commission to
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find that, based on the close proximity of the remodel to the
property line, the remodel would give the appearance that the
immediate vicinity of the seaward-facing side of the duplex was
private when, in fact, it is public land whether designated for the
Ocean Front Walk or not. This perception would lead to less
public use of part of the beach. Lastly, the Commission staff
report cited to past permit actions in other coastal locations
where property owners objected to having public walkways in
close proximity to their residences because of privacy concerns.
The Greenes contest the relevancy of what happened in other
places along the coast. In our view, that charge might go to the
weight afforded this information, but it nevertheless is an
element of the sufficiency of the evidence.
In sum, these findings, considered in light of the Coastal
Act policies of maximized public access and recreation, are
supported by substantial evidence.
The Greenes further object to “false statements in the staff
report,” namely that the “normally required rear yard setback for
a structure on the subject site is 15 feet.” The Greenes argue this
was false because the applicable local ordinance only requires a
setback of one foot. However, as the trial court observed, “the
[staff] report clearly explains that the City [not the Commission]
normally requires a 15-foot rear setback for beachfront
properties, but for properties at this location an ordinance
permits a one-foot setback.” Even considered as a misstatement
of fact, there is nothing to suggest this information was a
significant factor in the Commission’s decision, nor does it
undermine the sufficiency of the evidence.
Lastly, the Greenes contend that, even if the Commission’s
privatization findings are supported by substantial evidence, we
11
must still vacate the decision because the “Commission failed to
issue findings to bridge the analytic gap between the staff’s
findings and its decision.” (See Topanga Assn. for a Scenic
Community v. County of Los Angeles, supra, 11 Cal.3d at p. 520
[decision approving zoning variance lacked findings bridging the
analytic gap between the evidence and decision].) The Greenes
point to comments by three commissioners at the hearing that
the five-foot setback was justified due to concerns about sea level
rise. The trial court later found that substantial evidence did not
support a finding that a flood risk justified the setback condition.
Because the Commission “did not clearly state its findings”
when it adopted the permit, the Greenes argue that its decision
could have improperly been based on the sea level rise
justification as opposed to the privatization of the beach finding.
This is not a failure to bridge the analytic gap between the
evidence and decision, however. As we explain, the privatization
finding was adopted by the Commission, is supported by the
evidence, and justifies the permit decision, wholly aside from the
sea level rise finding debunked by the trial court.
The Greenes acknowledge that the Commission is not
required to issue formal findings of fact, and we must presume
that “[u]nless otherwise specified at the time of the vote, an
action taken consistent with the staff recommendation shall be
deemed . . . to have adopted, the reasons, findings and
conclusions set forth in the staff report . . . .” (Cal. Code Regs.,
tit. 14, § 13096.) The commissioners who made comments about
the sea level rise justification did so at the time they voted on the
motion to remove the setback condition from the permit. After
the motion was denied, the commissioners voted unanimously to
approve the permit with the setback condition. No reasons,
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findings or conclusions were specified at the time of the vote on
the permit. We therefore by law must deem the Commission to
have adopted those findings in the staff report, including the
finding that a setback less than five feet would effectively
privatize part of the beach. Substantial evidence supports the
privatization finding, and this finding is sufficient to support the
Commission’s decision. (See Sinaiko v. Superior Court (2004)
122 Cal.App.4th 1133, 1145–146.)
4. The Greenes Did Not Exhaust Their Administrative
Remedies on their Unconstitutional Taking Argument
The Greenes contend the five-foot setback condition is an
unconstitutional taking of their property for public use without
just compensation. The trial court rejected this argument
because the Greenes had failed to raise the point at the
Commission hearing. We agree.
“Where an administrative remedy is provided by statute,
this remedy must be exhausted before the courts will act.
[Citations.] This ‘ “is not a matter of judicial discretion, but is a
fundamental rule of procedure laid down by courts of last resort,
followed under the doctrine of stare decisis, and binding upon all
courts.” [Citations.]’ [Citation.] The rationale for the rule is that
an agency is entitled to learn the contentions of interested parties
before litigation arises, so it will have an opportunity to address
the contentions and perhaps render litigation unnecessary.
[Citation.] To advance this purpose an interested party must
present the exact issue to the administrative agency that is later
asserted during litigation or on appeal. [Citation.] General
objections, generalized references or unelaborated comments will
not suffice. [Citation.] ‘ “[T]he objections must be sufficiently
specific so that the agency has the opportunity to evaluate and
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respond to them.” [Citation.]’ [Citation.] [¶] ‘The petitioner
bears the burden of demonstrating that the issues raised in the
judicial proceeding were first raised at the administrative level.
[Citation.]’ [Citation.]” (Hagopian v. State of California (2014)
223 Cal.App.4th 349, 371, italics omitted.)
The Greenes argue they did raise the point through general
objections at the hearing.
5 The Greenes point to their
representative’s statements that “[t]he city council took the
legislative action to establish a specific setback of one foot,” and
“the project will not conflict with any public access or public
recreations policies of the [C]oastal [A]ct.” They argue that
although their consultant did not refer to the federal or state
constitutions, case law or other authority on the takings issue, he
“articulated the principles of those decisions.”
These general arguments did not put the Commission on
notice of a taking issue. To satisfy the exhaustion requirement,
the Greenes were required to present the “ ‘exact issue’ ” to the
administrative agency. (Mani Brothers Real Estate Group v. City
of Los Angeles (2007) 153 Cal.App.4th 1385, 1394.) Here, the
Greenes’ representative’s entire presentation at the hearing
concerned the Commission’s historic reliance on the City’s zoning
to approve a one-foot setback on similar properties. This
argument did not reference an unconstitutional taking, and did
not give the Commission an opportunity to evaluate that issue.
Accordingly, the Greenes have not exhausted their

5 The Greenes also contend that the consultant representing
them at the administrative hearing was not a lawyer and,
therefore, should not have been expected to make legal
arguments. We do not address the substance of this argument
but note that the Greenes’ attorney on appeal, David R. Greene,
was also present at the hearing on behalf of the Greenes.
14
administrative remedies for their claim that the five-foot setback
constituted an unconstitutional taking.

Outcome: The judgment denying the petition is affirmed. Appellants are ordered to pay for respondent’s costs on appeal.

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Defendant's Experts:

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