Hudson v. Mendocino County Board of Supervisors

No. 31918 (Cal. Super. Ct. October 27, 1971)

Where state Business and Professions Code requires ocean coastline subdivisions to provide public access to land below ordinary high-water mark, where County Plainning Commission required that developer provide footpath for public in compliance with Code, and where Board of Supervisors reversed ruling on alleged grounds that footpath would disturb fragile ecology of area, create public hazard and encourage trespass on development property, writ of mandamus will issue requiring Board to vacate decision and comply with statute. Public has standing to bring this action or Code provision would be meaningless. Requirement for public access does not violate due process or equal protection clauses of Constitution, citing Associated Homebuilders v. City of Walnut Creek, 1 ELR 20223.

Counsel for Plaintiffs:
James Luther
116 E. South School Street
Ukiah, California 95482
(707) 462-6666

Counsel for Respondent:
Leo Cook
P.O. Box 418
Ukiah, California 95482
(707) 462-2604

Evelle Younger Attorney General
State Capitol
Sacramento, California 95814
(916) 445-9555

[1 ELR 20593]

RULING AND MEMORANDUM OF OPINION

This mandamus matter involves a head-on clash between members of the public on one hand and the Board of Supervisors and subdivider on the other over the applicability of § 11610.5 of the Business and Professions Code to Havens Neck Estates subdivision. The foregoing section, enacted in 1970, requires reasonable public access to the land below the ordinary high-water mark on any ocean coastline as a condition to the approval of either the tentative or final map of any subdivision fronting upon the coastline or shoreline. The section provides criteria for what shall be reasonable public access. The requirement does not apply if a finding is made "that such reasonable access is otherwise available within a reasonable distance from the subdivision." (§ 11610.5[d]) The reasonable public access is provided by map dedication. The appropriate governmental entity (here the County) has a period of one year after approval of the final map within which to accept the dedication. If it does not do so, the dedication is deemed abandoned.

On January 8, 1971, the Planning Commission approved the tentative map, with the provision "that the subdivider dedicate to the County of Mendocino in fee or easement a footpath for public access purposes from any point he deems satisfactory from State Highway #1 to the ordinary high-water mark on the coastline . . . ." The subdivider appealed in accordance with § 1155.2 of the Business and Professions Code and the applicable ordinance. A public hearing was held, and on February 23, 1971, the Board of Supervisors unanimously sustained the action of the Planning Commission.Thereafter, on March 2, 1971, the Board of Supervisors moved to reconsider the matter, and on a 3-2 vote the decision of the Planning Commission was overruled. The minutes assign the following reasons: "Because of the fragile nature of the ecology in this location public access would destory the unique ecological value; that the difficult access would create a definite public safety hazard and based on the legislative counsel's opinion this Board could be required to pay for the access, and also that the likelihood of public access would increase the possibility of trespass on the surrounding property, which means Havens Neck."

The Attorney General (representing the People of the State of California) and the Sierra Club have intervened, and the County Counsel of Sonoma County has appeared as amicus curiae.

Demurrers and answers have been filed, and at the hearing the matter was considered both on the demurrers and on the merits. Counsel later filed additional Points and Authorities which have been read and considered by the Court. The Court has considered all of the points that have been raised; if no comment is made concerning any particular point or contention, this does not mean that it has been overlooked.

There has been a great deal of discussion as to whether the petition has been properly framed in administrative mandamus. Courts have been quite liberal regarding pleading and special writs; if the wrong remedy is sought, this is immaterial if relief is justified. (See Owens v. Superior Court, 52 Cal. 2d 822 [1959].) What is shown by the allegations of the petition is that the Board of Supervisors, in purporting to carry out a duty that was imposed upon it, failed to follow the mandate of an applicable law. As is stated in California Civil Writs, Calif. Continuing Education of the Bar 1970, § 5.26: "But [traditional] mandamus issues against a local legislative body that . . . refuses to obey the plain mandate of the law." One of the cases which is cited, Walker v. County of Los Angeles, 55 Cal. 5d 626 (1961), is quite in point.Looking at the present proceeding, it might be considered one involving a question of law, not one involving substantial evidence. In such event, the relief to be granted would be to order the Board of Supervisors to follow the law. On the other hand, there was a hearing, and perhaps it might be considered from the substantial evidence standpoint. However, the interpretation that it is a question of law, and that relief would be in the form of traditional mandamus, is more persuasive. From a procedural standpoint, the wording of the petition is of no significance. If § 11610.5 [1 ELR 20594] is applicable, the relief to be granted should be a remanding of the matter back to the Board of Supervisors with a direction that it is to fellow this legal provision. Such action by the Court would not be an interference with the Board's lawful discretion, as the law which the Board is being asked to follow provides for it to exercise its discretion in certain areas. But the Board does not have the discretion not to follow the law.

It has been argued that petitioners have no standing to sue. Wine v. Council of the City of Los Angeles, 177 Cal. ApP.2d 157 (1960), is not persuasive. Here we are dealing with a statute regarding reasonable "public access." This gives the public a standing irrespective of the position of the subdivider and the County. The law would be meaningless if the public could not protect its right by coming into court and saying that the law is not being complied with. One who seeks to enforce a public right by mandamus need show only that he is interested as a citizen in having the laws executed and the duty in question enforced (Hollman v. Warren, 32 Cal. 2d 351 [1948]).

Another contention is that the Attorney General has no standing to intervene in this case. People v. Brophy, 49 Cal. ApP.2d 15 (1942), is cited as authority. Brophy is explained well by the Supreme Court in County of San Bernardino v. Harsh California Corporation, 52 Cal. 2d 341 (1959), at pages 346 and 347. Brophy is not analogous to the present case. Article V, § 10 of the California Constitution, dealing with the Attorney General, states in part: "It shall be his duty to see that the laws of the state are uniformly and adequately enforced." The Attorney General has a right to intervene and take a position contrary to the District Attorney concerning public access.

In support of the action of the Board of Supervisors, it is argued that § 11610.5 is to be interpreted as requiring access only if it is reasonable to do so. A reading of the section makes this position untennable. There is to be reasonable public access in each instance. The criteria for determining what shall be reasonable public access are set out in Subsection (c).

Another contentionis that this subdivision is not one which is "fronting upon the coastline or shoreline." The tentative map (Exhibit No. 2) shows that the property contiguous to the ocean, including the promontory, is not part of the subdivision. Counsel for the subdivider conceded that the intervening land is owned by the subdivider. In this type of situation, definitions by dictionaries and by courts in other matters are not too helpful. A Court must look at the evidence and the intent of the law and attempt to come up with an answer which is within the law, yet based on common sense. As far as the record is concerned, there are no plans for the unsubdivided land. Except for the promontory, the unsubdivided land is of about the same depth as the subdivision lots. The Court concludes that, under all the circumstances which are present, the subdivision is "fronting upon the coastline or shoreline." A small buffer zone may not be used to defeat the law. Further, the roads of the subdivision are to be private, which would forever seal off access from the public highway to the buffer zone (and then the coastline). Thus the law, which requires reasonable public access from the public highways to the coastline or shoreline, would be frustrated even in the event of future subdivision of the buffer zone.

It is argued that the providing of public access is really discretionary by the Board of Supervisors, because the County can refuse to accept the dedication if it does not do so within one year after the final map is filed. The answer is: That is a step which arises in the future in the political process. Many changes can and do take place in one year's time. The law does not allow the matter to die before it is born, albeit there can later be a case of justifiable homicide. The matter is not moot for this or may other reason.

Petitioners have exhausted their administrative remedies, if it is necessary for them to do so. No further possible administrative relief has been pointed out to the Court.

Although, real parties in interest contend that there is an adequate remedy other than mandamus, no such remedy has been pointed out. This is a typical situation where mandamus is a proper remedy.

Petitioners contend that they also are entitled to a right-of-way of necessity. It is pointed out in 25 Am. Jur. 2d, "Easements and Licenses," § 35, that "[a] way of necessity is dependent on unity of ownership of the dominant and servient estates, followed by a severance thereof." The factual situation does not meet this requirement, unless it might be said that since everything was once in the public domain the requirement is met in this way. However, the same authority cites Bully Hill Copper Mining and Smelting Co. v. Brunson, 4 Cal. App. 180 (1906), for the proposition that a right-of-way of necessity cannot arise from the fact that all of the land was originally a part of the public domain. In addition, there has been no showing of the required absolute necessity; people might be able to walk in from other access during low tide. There is no right-of-way of necessity.

The constitutional questions remain. Relying particularly upon Associated Home Builders, etc. v. City of Walnut Creek, 4 Cal. 3d 633 (1971), the Court concludes that in the present case there is no unconstitutional taking without compensation. This conclusion is predicated on a requirement of dedication of property which is sufficient for a foot trail. Associated Home Builders rejects the argument that the dedicated land (a park in that case) necessarily and primarily benefit the particular subdivision. The analogy to the present case is clear; and here the court feels that the lot purchasers will benefit from the coastline access, as the record does not show that they have any assured access to the beach or coastline. The present case has the additional factor of Article XV, § 2 of the California Constitution regarding public access to shoreline areas. Gion v. City of Santa Cruz, 2 Cal. 3d 29 (1970), points out that recreational purposes are among the "public purposes" mentioned in Article XV, § 2. Gion also points out that Article XV, § 2 may be limited to some extent by the United States Constitution — and that is what has been considered in this analysis by using the analogy of Associated Home Builders.

The equal protection questions have been considered. There has been a constitutionally acceptable classification in making the statute applicable to new subdivisions and to land fronting upon the coastline or shoreline.

All of the demurrers which have been interposed are overruled.

As has already been pointed out, there is some question whether we are involved with traditional or administrative mandamus. The Court has already indicated that it appears to be the former. Actually, the only significant aspect of this is to give the proper relief, and this would probably be the same no matter which kind of mandamus we have. So that the record will be clear on all scores, however, it is the opinion of the Court that there is no evidence (substantial or otherwise) to support the action of the Board of Supervisors. And the Court concludes that the Board of Supervisors should be ordered to comply with the terms of § 11610.5 of the Business and Professions Code. Thus, petitioners are entitled to a peremptory Writ of Mandamus from this court remanding the matter to the respondent Board of Supervisors and commanding respondent to set aside its decision dated March 2, 1971, concerning Havens Neck Estates subdivision, and to apply the provisions of § 11610.5 of the Business and Professions Code, as interpreted by this Court, to its proceedings concerning said subdivision. In connection with the foregoing, nothing is to limit or control in any way the discretion vested in respondent by the wording of § 11610.5 of the Business and Professions Code.

This Ruling and Memorandum of Opinion constitute the Court's intended decision. If Findings of Fact and Conclusions of Law are desired, they shall be requested within ten days of the date of mailing this Ruling.If no such request is made, petitioner's attorneys are directed to prepare, serve and submit a Judgment. If such a request is made, petitioner's attorneys are directed to prepare, serve and submit Proposed Findings of Fact and Conclusions of Law and Judgment. If applicable, the period of time prescribed in Rule 232(b), Rules for the Superior Courts, shall commence to run on the first day after the expiration of the time for requesting Findings. If applicable, the period of time prescribed in Rule 232(c), Rules for the Superior Courts, shall commence to run on the date of service by mail of the request for Findings.