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Lead Agency's Environmental Review Not Subject To Challenge, Court Rules

The opponent of a proposed house on the Big Sur coast cannot challenge Monterey County's environmental review of the project because the Coastal Commission provided the ultimate decision on the project, the Sixth District Court of Appeal has ruled.

The county had approved the proposed house, but the aggrieved neighbor appealed to the Coastal Commission, which also approved the project. "With the Coastal Commission's decision to accept the administrative appeal, the county's CEQA [California Environmental Quality Act] determinations were converted into intermediate decisions, lacking finality," the court ruled. As a result, the project opponent "no longer has any CEQA claims against the county, which is ‘no longer plaintiff's adversarial opponent.'"

For six years, Dr. Hugh McAllister, chairman of the World Wildlife Fund's Marine Leadership Committee, has been trying to prevent neighboring property owners Sheldon Laube and Dr. Nancy Engel from building a single house on two 2-acre parcels on Kasler Point. The Big Sur Land Use Advisory Committee initially endorsed the proposed 10,000-square-foot house in March 2001. Based on McAllister's objections, Laube and Engel relocated the proposed house and the advisory committee again gave its approval. The project then went to the Planning Commission, which certified a mitigated negative declaration, and approved a parcel merger and the project in October 2003. McAllister appealed to the Board of Supervisors, which denied the appeal.

In February 2004, McAllister simultaneously filed a "precautionary" appeal of the Board of Supervisors' decision with the Coastal Commission, and sued the county, his neighbors and the Coastal Commission. In late 2004, the Coastal Commission approved a slightly modified proposal. In February 2005, Monterey County Superior Court dismissed the litigation.

McAllister's original lawsuit made a number of claims, but his appeal of the Superior Court ruling was limited. He argued that the county violated CEQA, and that the county's decision was null and void because it violated the county's local coastal plan.

McAllister argued that because the county was the lead agency under CEQA, and the Coastal Commission was only a responsible agency, the county's CEQA compliance should be subject to legal review.

The court agreed that the county was the lead agency and the Coastal Commission was the responsible agency, but the court disagreed with McAllister's legal conclusion. The court cited Kaczorowski v. Mendocino County Bd. of Supervisors, (2001) 88 Cal.App.4th 564, 570, in which a court dismissed a lawsuit over a guest inn proposed near Fort Bragg because the project opponent failed to name the Coastal Commission in the lawsuit (see CP&DR Legal Digest, July 2001). The Coastal Commission had approved the project after the same opponents appealed the county's decision to approve the project.

"The county's CEQA decisions," the Sixth District ruled in the Big Sur case, "have been superceded by the Coastal Commission's environmental review. ‘The commission's findings that the project complied with CEQA superceded equivalent findings by the County Board of Supervisors in precisely the same manner that the board's decision superseded that of the planning commission.'"

The court distinguished this case from Save San Francisco Bay Assn. v. San Francisco Bay Conservation etc. Com., (1992) 10 Cal.App.4th 908. In Save San Francisco Bay, which McAllister cited for support, the First District Court of Appeal considered challenges to both the City of San Francisco's environmental document for a proposed aquarium, and the Bay Conservation and Development Commission's environmental review (see CP&DR Court Cases, December 1992).

But the Sixth District said that San Francisco and the bay commission "undertook environmental review under two different statutory schemes, each with a slightly different focus, rather than engaging in sequential review in a vertical process under CEQA." The Coastal Commissions' review, on the other hand, is the functional equivalent of a CEQA proceeding.

"In this case, the Coastal Commission's review was the final step in a sequential process of CEQA proceedings, which started with the county's Planning Commission. That final step is the only one appropriate for judicial review," Justice Richard McAdams wrote for the court.

McAllister responded that such a ruling would mean the county's CEQA compliance would be beyond judicial review. "We do not share McAllister's apparent apprehension over the Legislature's decision to give the Coastal Commission the final administrative say on sensitive coastal developments such as the one at issue here," McAdams wrote.

McAllister also argued the county's decision was null and void because of code violations on the project site. A previous landowner had done grading and construction work prohibited by a 1977 permit. McAllister said this meant the current property owners were in violation of the county's local coastal plan.

The court said the earlier construction might have breached the 1977 permit, but evidence "unequivocally" refuted McAllister's contention that a code violation existed.

The Case:
McAllister v. County of Monterey, No. H028813, 2007 DJDAR 1402. Filed January 31, 2007.
The Lawyers:
For McAllister: John Bridges, Fenton & Keller, (831) 373-1241.
For the county: Frank Tiesen, county counsel's office, (831) 755-5045.
For the property owners: Sheri Damon, Lombardo & Gilles, (831) 754-2444.

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