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Posted with the permission of LexisNexis DAVID J. DUNN, as Trustee, etc., Plaintiff and Appellant, v. COURT OF APPEAL OF DIVISION SIX 135 NOTICE: As modified SUBSEQUENT HISTORY: Modified and rehearing denied
by Dunn v. County of Review denied by, Request denied by Dunn v.
County of PRIOR HISTORY: COUNSEL: Hatch & Parent, Diane M.
Matsinger; Bornholdt, Peron & Pratt and Kenneth C. Bornholdt for Plaintiff
and Appellant. Stephen Shane Stark, County Counsel, Alan L.
Seltzer, Chief Assistant County Counsel, and Kelly A. Casillas, Deputy County
Counsel, for Defendant and Respondent. JUDGES: Perren, J., with Gilbert, P.
J., and Coffee, J., concurring. OPINION BY: PERREN OPINION: PERREN, J.--The owner of a six-acre
parcel in Summerland filed an application to subdivide that property, which is
zoned for a single-family residence, into two 3-acre parcels. As presently
configured, two residences could conceivably be developed on the parcel. The
County of Santa Barbara County determined, however, that the property was
subject to development restrictions pursuant to state laws and local
regulations enacted for the protection of wetlands and environmentally
sensitive habitat areas. After identifying two artificially created wetlands
totaling approximately one-fifth of an acre, the County concluded that only one
residence could be built on the property, and accordingly denied the
subdivision application. Appellant David J. Dunn, as trustee of a family trust
that owns the subject property, thereafter filed a petition for a writ of
administrative mandate (Code Civ. Proc., §
1094.5), combined with a complaint alleging, among other things, that
the County's regulations had taken his property without compensation in
violation of the takings clause of the Fifth Amendment of the United States
Constitution. Dunn
subsequently moved for summary adjudication of his writ petition pursuant to
Code of Civil Procedure section 437c, subdivision (f), and alternatively moved
for judgment pursuant to Code of Civil Procedure section 1094, on the grounds
that the County had not proceeded in the manner required by law and that the
County's decision was not supported by the evidence (Code Civ. Proc., § 1094.5, subd. (b)). The trial court denied
Dunn's motion for summary adjudication of the petition on procedural grounds,
denied the motion for judgment, and accordingly denied the writ petition. The
court also granted the County's motion for judgment on the pleadings as to the
complaint, finding that Dunn could not state a claim for a physical taking,
that his regulatory takings claims were not ripe for adjudication, and that the
remaining constitutional claims were premature because they derived from the
unripe takings claims. We agree
with the trial court that the summary adjudication procedure was improperly
invoked. Where, as here, an administrative mandamus proceeding purportedly
presents no triable issue of fact or is based solely on the administrative
record, the proper procedure is a motion for judgment on the writ pursuant to
Code of Civil Procedure section 1094. We also
concur in the trial court's conclusion that the County proceeded in the
manner required by law as contemplated by Code of Civil Procedure section
1094.5, subdivision (b). The challenged regulations pursuant to which that
decision was made are consistent with the Coastal Act's stated goal to
"[p]rotect, maintain, and, where feasible, enhance and restore the overall
quality of the coastal zone environment and its natural and artificial
resources." (Pub. Resources Code, n1 §
30001.5, subd. (a).) Moreover, substantial evidence supports all of the
findings essential to the County's decision. n1 All
further statutory references are to the Public Resources Code unless otherwise
noted. We agree
with Dunn, however, that his regulatory takings claims are ripe for
adjudication because the County issued what amounts to a final decision that it
lacks discretion to grant any subdivision of his property, and the permissible
use of the property--the development of one single-family residence--is known
to a reasonable degree of certainty. Accordingly, we reverse the judgment in
favor of the County on those claims, as well as the constitutional and civil
rights claims that were deemed not ripe on the same ground. In all other
respects, we affirm. FACTS AND PROCEDURAL HISTORY On Because
the property is located within the coastal zone, it is under the jurisdiction
of the California Coastal Commission (Commission) and is subject to the
provisions of the California Coastal Act (§
30121), as well as the County's local coastal plan (LCP). In applying
for the subdivision, Dunn submitted a biological report prepared by LSA, Inc.
(LSA), which indicated the presence of "a small, isolated and
artificial/degraded wetland" of approximately 0.16 acres (Area A). (Fn.
omitted.) The report concluded that Area A qualified as a wetland "because
it has wetland hydrology, hydrophytic vegetation, and hydric soils as those
terms are generally and broadly understood." n2 LSA subsequently
supplemented its report to address another small area of approximately 0.005
acres which also had wetland features (Area B). n2 The
guideline referenced is the Statewide Interpretive Guideline for Wetlands and
Other Wet Environmentally Sensitive Habitat Areas, adopted February 4, 1981, by
the California Coastal Commission (Interpretive Guideline). In
reviewing Dunn's application, the County retained Padre Associates to
independently evaluate the property. That evaluation also identified Areas A
and B as wetlands, and concluded that those areas were of significant existing
and potential value to wetland plant and animal species. The County also
concluded the wetlands were entitled to protection as environmentally sensitive
habitat areas (ESHA) under the LCP. The County determined that required building
setbacks applicable to the property included a 100-foot "buffer" from
the boundaries of the wetlands, 75 feet from the coastal bluff, and 100 feet from the proposed septic system
to the edge of the arroyo. The environmental impact report (EIR) prepared
pursuant to the application subsequently noted that "[t]he project site
wetlands are entirely located on Parcel 1, with 0.16 acres within the
designated building envelope. Although 0.02 acres would remain following full
development within the building envelope, alteration of topography and soils
associated with grading would likely result in the loss of wetlands in this
area." In
reliance on the EIR's conclusions, the County Planning Commission denied Dunn's
application. The County Board of Supervisors subsequently denied Dunn's appeal
on the ground that it could not make the findings required to grant the
application in that approval of the proposed lot split would be inconsistent with various
regulations, including the LCP (which was certified by the Commission) and the
Summerland community plan. After the
board of supervisors denied Dunn's appeal, he filed a petition for a writ of
administrative mandate pursuant to Code of Civil Procedure section 1094.5,
along with a complaint for damages alleging violations of constitutional and
civil rights and causes of action for regulatory and physical takings of his
property. The writ petition alleged that the County had abused its discretion
by failing to proceed in the manner required by law (Code Civ. Proc., § 1094.5, subd. (b)), and by issuing findings
that were not supported by the evidence (ibid.). By stipulation, the
administrative mandamus proceedings were bifurcated and heard first. On July
19, 2002, Dunn filed a self-styled "motion for summary adjudication of
issues or, alternatively, motion for judgment on peremptory writ of mandate/mandamus."
The summary adjudication procedure was invoked pursuant to Code of Civil
Procedure section 437c, subdivision (f)(1). The motion for judgment was brought
under Code of Civil Procedure section 1094 "on the basis that the writ
filed presents no triable issue of fact and is based solely on the Administrative
Record ... ." On July
18, 2003, the trial court filed its statement of decision denying Dunn's writ
petition and his motion for summary adjudication. The court found that Dunn had
failed to meet his initial burden of proof on his summary adjudication motion,
and that substantial evidence supported the County's findings and its decision
to deny Dunn's application for a subdivision of his property. The County
thereafter moved for judgment on the pleadings on the causes of action alleged
in Dunn's complaint for damages. The County contended, among other things, that
Dunn's constitutional claims failed as a matter of law in light of the court's
denial of the writ petition, that Dunn had failed to state a claim for a
physical taking, and that his claim for a regulatory taking was not ripe for
review because he had not yet sought a final determination from the County
regarding the extent of development that will be allowed on his property. The
court granted the County's motion on January 30, 2004, finding that "since
there can be no possible physical taking of property under the facts alleged in
the complaint, and ... all remaining causes of action are not ripe for
adjudication, the motion must be granted." DISCUSSION I. Administrative Mandamus A. Standard of Review "Because
this matter came to the trial court on a petition for a writ of mandate under Code of Civil Procedure section 1094.5
, that court was required to determine
whether substantial evidence supported the [County's] findings and whether
those findings supported its decision. [Citation.] Our role is identical to
that of the trial court. [Citations.] In determining whether substantial
evidence supports the [County's] decision, we look to the 'whole'
administrative record and consider all relevant evidence, including that
evidence which detracts from the decision. Although this task involves some
weighing to fairly estimate the worth of the evidence, that limited weighing
does not constitute independent review where the court substitutes its own
findings and inferences for that of the [County]. Rather, it is for the
[County] to weigh the preponderance of conflicting evidence, as we may reverse
its decision only if, based on the evidence before it, a reasonable person
could not have reached the conclusion reached by it. [Citations.]" (Kirkorowicz
v. California Coastal Com. (2000) 83 Cal.App.4th 980, 986 [100 Cal. Rptr.
2d 124].) In this
appeal, we are also asked to review the County's interpretation of the Coastal
Act, as manifested in the regulations contained in the County's LCP. Although
the interpretation of a statute's legal meaning and effect are "questions
lying within the constitutional domain of the courts" (Yamaha Corp. of
America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 11 [78 Cal. Rptr.
2d 1, 960 P.2d 1031]), we generally defer to an agency's interpretation where
the agency "possess[es] special familiarity with satellite legal and
regulatory issues" (ibid.; see also Bolsa Chica Land Trust v. Superior
Court (1999) 71 Cal.App.4th 493, 504 [83 Cal. Rptr. 2d 850]). Therefore,
while we exercise our independent judgment in reviewing the County's
interpretation of the Coastal Act, we exercise that judgment " '
"giving deference to the determination of the agency appropriate
to the circumstances of the agency action." [Citation.]' " (MHC
Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th
204, 219 [130 Cal. Rptr. 2d 564].) "To summarize, we review the [County's]
factual determinations for substantial evidence. [Citation.] We independently
review the [County's] interpretation of [the Coastal Act], according that
interpretation due deference. [Citation.]" (Id., at p. 220.) The
County's interpretation in this regard, as manifested in the LCP, is entitled
to great weight because the LCP was certified by the Commission. (Bolsa
Chica, supra, at p. 513.) Dunn
contends that the substantial evidence standard of review does not apply to his
appeal because all of his assignments of error involve questions of law on
undisputed facts. (See, e.g., Lomeli v. Department of Corrections (2003)
108 Cal.App.4th 788, 794 [134 Cal. Rptr. 2d 179].) According to Dunn, we are
therefore compelled to disregard the administrative record in favor of the purportedly undisputed material
"facts" identified in the separate statement he filed in support of
his motion for summary adjudication. We are
not persuaded. As we explain, virtually all of Dunn's challenges of the
County's decision to deny his subdivision application directly implicate
factual disputes that were decided against him in the administrative
proceedings. To the extent Dunn challenges the County's interpretation of the
Coastal Act as provided in its regulations, he either mischaracterizes the
County's interpretation, or fails to credit case law demonstrating that those
interpretations are consistent with the statute's purpose. B. Summary Adjudication In the
trial court, Dunn filed a motion for summary adjudication of his writ petition pursuant to Code of Civil Procedure
section 437c, subdivision (f). Motions
for summary adjudication are procedurally identical to motions for summary
judgment (§ 437c, subd. (f)(2)), and our
review of rulings on those motions is de novo (Hartline v. Kaiser Foundation
Hospitals (2005) 132 Cal.App.4th 458, 464 [33 Cal. Rptr. 3d 713]). Summary
adjudication is warranted only if the motion completely disposes of a cause of
action, an affirmative defense, a claim for damages, or an issue of duty. (Code
Civ. Proc., § 437c, subd. (f)(1).) The
motion shall be granted "if all the papers submitted show that there is no
triable issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law. In determining whether the papers show that
there is no triable issue as to any material fact the court shall consider all
of the evidence set forth in the papers, except that to which objections have
been made and sustained by the court, and all inferences reasonably deducible
from the evidence ... ." (Id., subd. (c).) The papers filed in
support of the motion "shall include a separate statement setting forth
plainly and concisely all material facts which the moving party contends are
undisputed." (Id., subd. (b)(1).) In
support of his motion, Dunn filed a separate statement identifying 155
purportedly undisputed "facts" that he contended were dispositive of
both the writ petition and his constitutional claims, most of which challenged
the sufficiency of the evidence supporting the County's findings. The County
opposed the motion on the ground that all of the findings necessary to its
decision were supported by substantial evidence in the administrative record.
The County specifically argued "that the facts in the record show at least
a disputed issue that protected wetlands are present on the property, and so
summary adjudication ... cannot be granted to Plaintiff." In its separate
statement, the County objected to many of Dunn's assigned facts as improper conclusions of law, admitted others, and
identified 11 additional facts and submitted "that there is at least a
triable issue of fact as to each, as shown by the evidence in the record cited,
which evidence also constitutes substantial evidence in the record to support
the Board findings for denial[.]" The trial
court denied Dunn's motion, explaining that "[t]o the extent [Dunn's]
motion was intended just to be a motion for summary adjudication, it was
largely improper. The 'issues' identified by the motion ... largely did not
dispose of any cause of action, defense, damage claim, or duty issue ... . The
identified issues were, rather, components of [Dunn's] larger claim of
entitlement to judgment on [his] petition for writ of mandate [pursuant to
section 1094], which could have been (and was) sought without the use of any
filing under CCP § 437c. [P] Further, in
finding that there existed substantial evidence to support the County's
findings, the Court has necessarily found the existence of a triable issue of
material fact as to whether Areas A and B were legally protected wetlands. ...
[P] The Court is not bound to determine the existence of triable issues of
material fact solely by reference to that evidence identified by [the County]
in its response to the separate statement. The Court also notes that additional
triable issues may exist, but are not specifically identified because the
basis for denial of the motion is [Dunn's] failure to meet his
burden of proof." (Italics added.) Although
we are not bound by the trial court's reasoning in reviewing the denial of
Dunn's motion for summary adjudication (Hartline v. Kaiser Foundation
Hospitals, supra, 132 Cal.App.4th at p. 465), we find the court's reasoning persuasive. The trial court
had the discretion to consider evidence not referenced in Dunn's separate
statement (Zimmerman, Rosenfeld, Gersh & Leeds v. Larson (2005) 131
Cal.App.4th 1466, 1478 [33 Cal. Rptr. 3d 111]), and we discern no basis for
concluding that the court did not properly exercise that discretion in denying
Dunn's motion. " ' " '[S]ummary judgment should not be based on tacit
admissions or fragmentary and equivocal concessions, which are contradicted by
other credible evidence.' [Citations.]" ' " (Leep v. American Ship
Management (2005) 126 Cal.App.4th 1028, 1039 [24 Cal. Rptr. 3d 463].) Dunn
nevertheless contends that in reviewing the denial of his summary adjudication
motion, we must limit our review of the record to that evidence identified in
his separate statement which the County either did not dispute, or to which objections
were made and sustained. He also argues that we are compelled to accept that
evidence as undisputed to the extent the County failed to expressly dispute it
in its separate statement. In response, the County asserts that summary
adjudication was procedurally inappropriate in this case because the material
facts were disputed in the administrative proceedings, and the court's role in reviewing those
findings is limited to determining whether they were supported by substantial
evidence in the administrative record. Dunn replies that the County waived any
right to challenge the motion on procedural grounds by formally opposing it,
and that any such challenge should fail because there is no express limitation
on the application of the summary adjudication procedure to administrative
mandamus proceedings. We do not
disagree with the proposition that summary adjudication or summary judgment may
be granted in mandamus proceedings where evidence outside of the administrative
record disposes of the petition as a matter of law. (See, e.g., Stanton v.
Dumke (1966) 64 Cal.2d 199, 207 [49 Cal. Rptr. 380, 411 P.2d 108] [summary
judgment granted in administrative mandamus proceeding on showing that the
petition was moot]; California Rifle & Pistol Assn. v. City of West
Hollywood (1998) 66 Cal.App.4th 1302, 1309 [78 Cal. Rptr. 2d 591] [summary
judgment granted in favor of the defendant city in mandamus proceeding
challenging gun control ordinance on grounds of preemption, equal protection,
and due process].) We also recognize that there is no express limitation on its
use in administrative mandamus proceedings. Its use in this context is,
nevertheless, limited by practical considerations. "The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute." (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal. Rptr. 2d
841, 24 P.3d 493].) That purpose is effected by providing for the admission of
dispositive evidence, in the form of "affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which
judicial notice shall or may be taken." (Code Civ. Proc., § 437c, subd. (b)(1).) Where, as here, the
court is called upon to evaluate the sufficiency of the evidence to support an
agency's decision, review is generally limited to the evidence contained in the
administrative record. (Kirkorowicz v. California Coastal Com., supra,
83 Cal.App.4th at p. 986.) Because the court's review is limited to the
evidence which is already before the court, and the court must review all of
that evidence, the summary adjudication procedure contemplated by Code of Civil
Procedure section 437c is effectively
unavailable for claims that an agency's decision is not supported by the
evidence. Dunn also
challenges the County's decision on the ground that the County failed to
proceed "in the manner required by law" as contemplated by Code of
Civil Procedure section 1094.5, subdivision (b). He correctly notes that courts
are not confined by the substantial evidence standard of review when reviewing
questions of law on undisputed facts. (See, e.g., Lomeli v. Department of Corrections, supra, 108
Cal.App.4th at p. 794.) An agency's application of a legal standard to
particular disputed facts, however, presents a "mixed"
question that is subject to review as a question of fact. (Holmes v. Kizer
(1992) 11 Cal.App.4th 395, 400-401 [13 Cal. Rptr. 2d 746]; see also 9 Witkin,
Cal. Procedure (4th ed. 1997) Administrative Proceedings, § 113, p. 1158.) As we will explain, the facts
underlying Dunn's claims are undisputed. Moreover, Dunn does not purport to
base any of his claims on evidence outside of the administrative record. Under the
circumstances, the motion for judgment provided by Code of Civil Procedure
section 1094 is the proper, and exclusive, procedural means for seeking a
streamlined review of an agency's decision. That statute provides in pertinent
part that "[i]f a petition for a writ of mandate ... presents no triable
issue of fact or is based solely on an administrative record, the matter may be
determined by the court by noticed motion of any party for a judgment on the
peremptory writ." Dunn moved for judgment pursuant to this section in the
alternative. As will be shown, the trial court properly denied judgment on that
ground because the County's decision to deny his application for a subdivision
of his property is supported by substantial evidence in the administrative
record, and there is no indication that the County failed to proceed in the
manner required by law in making that decision. C. Wetlands Designation (1) Wetlands are defined in the
Coastal Act as "lands within the coastal zone which may be covered
periodically or permanently with shallow water and include saltwater marshes,
freshwater marshes, open or closed brackish water marshes, swamps, mudflats,
and fens." (§ 30121.) In applying
that definition, the County, under regulations certified by the Commission,
uses the "Cowardin" system of classification. "For purposes of
this classification, wetlands must have one or more of the following
three attributes: (1) at least periodically, the land supports predominantly
hydrophytes[n3]; (2) the substrate[n4] is predominantly undrained hydric soil;
and (3) the substrate is nonsoil and is saturated with water or covered by
shallow water at some time during the growing season of each year."
(Interpretive Guideline, p. 79, appen. D, italics added; see also Kirkorowicz
v. California Coastal Com., supra, 83 Cal.App.4th at p. 988.) (2) In
evaluating whether property is entitled to protection as a wetland under the
Coastal Act, " ' "[t]he courts are enjoined to construe the statute liberally in light of
its beneficient purposes. [Citation.] The highest priority must be given to
environmental consideration in interpreting the statute [citation]." '
[Citation.]" (Bolsa Chica Land
Trust v. Superior Court, supra, 71 Cal.App.4th at p. 506.) n3 A
hydrophyte is "a plant growing in water or in soil too waterlogged for
most plants to survive." (Merriam-Webster's Collegiate Dict. (10th ed.
1999) p. 568.) n4 The
substrate, or substratum, is the "layer beneath the surface soil."
(Merriam-Webster's Collegiate Dict., supra, at p. 1174.) (3) In challenging the County's
decision on the ground that it failed to proceed "in the manner required
by law," Dunn primarily contends the County misinterpreted its regulations
and the Coastal Act by designating areas on his property as wetlands even
though those areas "do not function and have no value" as wetlands.
Notwithstanding his attempt to frame this contention as presenting a question
of law on undisputed facts, his arguments necessarily implicate the evidence
the County relied on in reaching that decision.
Moreover, Dunn's characterization of that evidence is one-sided. Every
expert who evaluated the property, including Dunn's own biological consultant,
recognized that Areas A and B possessed all three of the Cowardin wetland
factors. The presence of only one of those factors may be sufficient to warrant
a wetland designation. (Interpretive Guideline, p. 79, appen. D [wetland
classification applies where land has "one or more" of the three
Cowardin attributes]; see also Kirkorowicz v. California Coastal Com., supra,
83 Cal.App.4th at p. 990 ["evidence that hydrophytes exist on a property
to a degree permitting jurisdictional wetland determination renders unnecessary
any additional evidence of wetland hydrology or hydric soils"].) Contrary
to Dunn's contention, the County does not "mechanically" apply the
designation when only one of the Cowardin factors is present. The LCP provides
that "[i]n order to ensure that wetland protection standards are applied
equitably to affected property owners, wetlands which have only one of the
defining three characteristics, especially those defined only by seasonal
ponding, require careful review to ensure that highly disturbed areas with
artificially compacted soils which do not have true wetland characteristics are
not mistakenly identified as wetlands." n5 n5 Dunn
notes that the Commission expressly refers to wetlands as lands
"transitional between terrestrial and aquatic systems," while the
County does not. (Interpretive Guideline, pp. 78-79, appen. D.) Aside from the
fact that the Commission effectively sanctioned the County's definition by
certifying the LCP, the Cowardin factors are the objective proof that land is
in the "transitional" state contemplated by the Commission's
definition. (4) Notwithstanding the
undisputed evidence that the subject areas on Dunn's property possess all three
of the Cowardin wetland factors, Dunn contends there must be some other
evidence that those areas "function" and "have value" as wetlands.
But that contention begs the question whether such evidence exists, and a
review of the record demonstrates that it does. For example, one of the
biologists who surveyed the property noted that "[w]ildlife species,
particularly native birds and mammals[,] are likely to take advantage of the seasonally ponded water
contained in the freshwater marsh that
occupies a portion of proposed Parcel 1. The wetland is of sufficient size to
support breeding populations of Pacific chorus frog and Western toad. Wetland
bird species are expected to use the pool for foraging on a seasonal basis, and
the site's proximity to the coast and the western arroyo enhances the wetland's
functional value to area wildlife. The arroyo along the western portion of the
project site provides a conduit for wildlife movement which may also visit the
onsite pond while foraging." Another survey indicated that the property
contains 22 wetland indicator species that are considered valuable to wetland
ecosystems. Pacific tree frogs, killdeer, and spotted sandpiper, all of which
are associated with wetland areas, were observed on the property, which was
deemed of sufficient size to support their breeding populations. (5) In spite of this undisputed
evidence of the wetlands' function and value, Dunn contends that only wetlands
of a higher quality than those on his property are entitled to protection. That
argument has already been rejected: "[T]he Coastal Act by its definition
of wetland (§ 30121) does not
distinguish between wetlands according to their quality. Indeed, section 30233
limits development in all wetlands without reference to their quality." (Kirkorowicz
v. California Coastal Com., supra, 83 Cal.App.4th at p. 994.) The logic
inherent in this conclusion is that "the failure to protect the
low-quality wetlands would encourage developers to find threats and hazards to
all wetlands located in economically inconvenient locations." (Id.,
at p. 995.) Because substantial evidence in the record supports the County's
findings that Areas A and B on Dunn's property are legally protected wetlands,
and the County did not misinterpret its own regulations or state law in making
those findings, Dunn was not entitled to issuance of the writ on the grounds
that the County's decision was deficient in either regard. n6 n6 In the
trial court, Dunn argued that Areas A and B should not be designated as
wetlands because they were artificially created. The trial court rejected that
contention on the ground that the Coastal Act expressly protects "natural and
artificial resources" within the coastal environment. (§ 30001.5, subd. (a), italics added.) The court
also rejected Dunn's argument that only wetlands in existence as of the
enactment of the Coastal Act in 1972 were subject to protection. Dunn has not
challenged either of these conclusions on appeal. D. ESHA Designation (6) Under the Coastal Act, an
ESHA is "any area in which plant or animal life or their habitats are
either rare or especially valuable because of their special nature or role in an
ecosystem and which could be easily disturbed or degraded by human activities
and developments." (§ 30107.5.)
ESHA's "shall be protected against any significant disruption of habitat
values, and only uses dependent on those resources shall be allowed within
those areas." (§ 30240, subd. (a).)
The County's LCP, which includes wetlands
in its definition of the types of habitats that qualify as ESHA's, also
lists criteria including "[u]nique, rare, or fragile communities which
should be preserved to ensure their survival in the future" and
"[a]reas that are important because of their biological productivity such
as wetlands ... ." Dunn
challenges the County's finding that the wetlands on his property are ESHA's.
First, he claims the County "admitted" those areas were not ESHA's by
failing to specifically dispute the facts he identified as dispositive of that
issue in his separate statement. As we have already explained, the County had no duty to dispute
any of those facts because Dunn failed to meet his initial burden on the
motion. Dunn also fails to acknowledge that the County did dispute that
claim in the additional facts it submitted in opposing the motion. He also
contends the County erred in "automatically" designating the wetlands
as ESHA's, notwithstanding that the LCP, which was approved by the Commission,
expressly treats all wetlands as ESHA's. We have
already referred to the evidence demonstrating that the particular wetlands at
issue here play a valuable role in the ecosystem. In addition to that evidence,
the EIR prepared in connection with Dunn's application also noted that a
biologist who evaluated the site in 1998 "indicates the wetland provides
habitat value for bird species, and [he] observed killdeer and spotted
sandpiper feeding. ... [B]lack phoebe frequently use[] a fence post located in
the center of the wetland as a foraging perch, based on an accumulation of
scat." The County's LCP also explains that all wetlands are entitled to
independent protection as ESHA's because they "are extremely fertile and
productive environments. They act as nurseries for many aquatic species and
serve as feeding and nesting areas for many waterfowl including rare and
endangered species." The Commission also generally defines wetlands as
ESHA's, and its guidelines recognize that " '[o]f all the environmentally
sensitive habitat areas mentioned specifically in the Coastal Act, wetlands and
estuaries are afforded the most stringent protection. ...' " (Bolsa
Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th at p. 515.) (7) Nothing in Dunn's briefs
demonstrates that the wetlands on his property are not entitled to this
heightened protection. His argument that the quality of the wetlands somehow
diminishes their importance as ESHA's has already been rejected: "[U]nder
the statutory scheme, ESHA's, whether they are pristine and growing or fouled
and threatened, receive uniform treatment and protection. [Citation.]" (Bolsa
Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th at p. 508.)
Although Dunn contends that viability may play a legitimate role in determining
whether a particular habitat qualifies as an
ESHA (ibid.), n7 there is substantial evidence of viability here.
To the extent Dunn complains that the County's regulations are more restrictive
than the Commission's in determining ESHA status, the County has the discretion
to be more restrictive to the extent its regulations are consistent with
legislative intent. (Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 87 [60
Cal. Rptr. 2d 402].) n8 n7 The
merit of this contention is not clear. Although the court in Bolsa Chica
unequivocally stated, "[w]e do not doubt that in deciding whether a
particular area is an ESHA within the meaning of section 30107.5, [the]
Commission may consider, among other matters, its viability" (Bolsa
Chica Land Trust v. Superior Court, supra, at p. 508), the cited authority,
Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602,
614-615 [15 Cal. Rptr. 2d 779], does not directly support that proposition.
Rather, the cited portion of that opinion merely recognized that the court had
not been called upon to decide whether "pygmy-type" areas, which
possessed pygmy-type vegetation or soils but did not qualify as a "pygmy
forest," were entitled to ESHA protections. (Sierra Club, supra, at
pp. 614-615.) Moreover, in paraphrasing Bolsa Chica, the court in
Kirkorowicz interpreted that decision as "[d]oubting
that the Commission in deciding whether a particular area is an ESHA within the
meaning of section 30107.5 may consider its viability ... ." (Kirkorowicz
v. California Coastal Com., supra, 83 Cal.App.4th at p. 995, italics
added.) Because there is no evidence indicating that the wetlands on Dunn's property
are not viable, we have no occasion to weigh in on this apparent dispute. n8 Dunn
argues that the County engages in "convolution" by arguing as it did
below that the ESHA designation is not essential to its findings. The County's
argument in this regard merely recognizes that the wetland provisions of the
Coastal Act control the regulation of wetlands that are also ESHA's to the
extent those regulations conflict with ESHA provisions. (Bolsa Chica Land
Trust v. Superior Court, supra, 71 Cal.App.4th at p. 515.) E. Mitigation (8) Dunn next contends the County
erred in failing to consider mitigation as an alternative to denying his subdivision
application. This claim is premised on section 21159.26 n9 of the California
Environmental Quality Act (CEQA), which does not apply here because the County
did not certify the EIR pursuant to section 21080, subdivision (b)(5). To the
extent Dunn otherwise argues that mitigation should have been considered, the
Coastal Act plainly provides that residential development is not permitted in
wetlands under any circumstances. (§
30233, subd. (a); Bolsa Chica Land Trust v. Superior Court, supra,
71 Cal.App.4th at p. 511.) n9 That
section provides that "[w]ith respect to a project that includes a housing
development, a public agency may not reduce the proposed number of housing
units as a mitigation measure or project alternative for a particular
significant effect on the environment if it determines that there is another
feasible specific mitigation measure or project alternative that would provide
a comparable level of mitigation. This section does not affect any other
requirement regarding the residential density of that project." (§ 21159.26.) F. Buffer Dunn also
contends the County erred in imposing a 100-foot setback, or
"buffer," around the wetlands on his property. The buffer was
imposed pursuant to LCP Policy 9-9,
which provides that "[a] buffer strip, a minimum of 100 feet in width,
shall be maintained in natural condition along the periphery of all wetlands.
No permanent structures shall be permitted within the wetland or buffer area
except structures of a minor nature, i.e., fences, or structures necessary to
support [light recreational uses]." Dunn argues that this policy applies
only to wetlands that are also ESHA's. We have concluded, however, that substantial
evidence supports the County's finding that the wetlands on Dunn's property are
ESHA's as well. To the
extent Dunn contends that the LCP does not expressly refer to a
"uniform" buffer or the prohibition of any building within the
buffer, a logical reading indicates that both conclusions are appropriate. The
fact that there are preexisting structures within the buffer is irrelevant.
Moreover, Dunn ignores the trial court's conclusion, which we adopt, that he
failed to demonstrate that a lesser buffer would have been adequate to protect
the wetlands. G. Findings Regarding Proposed Septic System Dunn's
final contention in challenging the denial of his writ petition is that
substantial evidence does not support the County's finding that the proposed
septic system to be installed on proposed parcel 1 would violate 100-foot setbacks
mandated by the Regional Water Quality Board. Dunn's reason for raising this
issue is unclear, because the trial court agreed with him on this point. To the
extent he intended to otherwise challenge the application of a 100-foot setback
around the wetlands, we have already concluded that substantial evidence
supports the imposition of that setback
pursuant to the County's LCP policy 9-9. II. Motion for Judgment on the Pleadings The
standard of review for a motion for judgment on the pleadings is the same as
that for a general demurrer: We treat the pleadings as admitting all of the
material facts properly pleaded, but not any contentions, deductions or conclusions
of fact or law contained therein. We may also consider matters subject to
judicial notice. We review the complaint de novo to determine whether it
alleges facts sufficient to state a cause of action under any theory. (DiPirro
v. American Isuzu Motors, Inc. (2004) 119 Cal.App.4th 966, 972 [14 Cal.
Rptr. 3d 787].) The trial
court granted judgment on the pleadings in favor of the County on all of the
causes of action raised in Dunn's complaint for damages. The court granted
judgment on the causes of action for a physical taking on the ground that Dunn
could not state such a claim as a matter of law, and on the regulatory takings
claims on the ground that they were not ripe for adjudication. n10 The remaining causes of
action for equal protection, substantive due process, and civil rights
violations were also deemed unripe on the theory that they were derivative of
the regulatory takings claims. n101 Dunn
alleges takings claims under the state and federal Constitutions. Because state
takings law is coextensive with federal law (see Hensler v. City of Glendale
(1994) 8 Cal.4th 1, 9, fn. 4 [32 Cal. Rptr. 2d 244, 876 P.2d 1043]), the
analysis of the ripeness issue is the same. Judgment
on the physical takings claims was plainly correct because Dunn did not and
cannot allege that the County took physical possession of his property or
otherwise occupied it. (See Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency (2002) 535 U.S. 302, 322 [152 L. Ed. 2d 517, 122
S. Ct. 1465].) We reject, however, the court's conclusion that Dunn's
regulatory takings claims are not ripe for adjudication. (9) The takings clause of the
Fifth Amendment of the United States Constitution, which applies to the states
through the Fourteenth Amendment, prohibits the government from taking private
property without just compensation. "Where a regulation places limitations
on land that fall short of eliminating all economically beneficial use, a
taking nonetheless may have occurred, depending on a complex of factors
including the regulation's economic effect on the landowner, the extent to
which the regulation interferes with reasonable investment-backed expectations,
and the character of the government action. [Citation.]" (Palazzolo v.
Rhode Island (2001) 533 U.S. 606, 617 [150 L. Ed. 2d 592, 121 S. Ct. 2448]
(Palazzolo).) (10) A takings claim challenging
the application of regulations to particular property must be ripe for
consideration. Such a claim is not ripe until "the government entity
charged with implementing the regulations has reached a final decision
regarding the application of the regulations to the property at issue." (Williamson
Planning Comm'n v. Hamilton Bank (1985) 473 U.S. 172, 186 [87 L. Ed. 2d
126, 105 S. Ct. 3108].) "A final decision by the responsible state agency
informs the constitutional determination whether a regulation has deprived a
landowner of 'all economically beneficial use' of the property [citation], or
defeated the reasonable investment-backed expectations of the landowner to the
extent that a taking has occurred [citation]. These matters cannot be resolved
in definitive terms until a court knows
'the extent of permitted development' on the land in question.
[Citation.]" (Palazzolo, supra, 533 U.S. at p. 618.) The primary
question to be answered in resolving this issue is whether the landowner
"obtained a final decision from the [agency] determining the permitted use
for the land." (Ibid.) (11) Applying these principles,
the trial court concluded that Dunn's takings claims were not ripe because he
had failed to apply for a permit to develop a single-family residence on his
property. The County, however, has
repeatedly indicated that it will allow Dunn to build a residence on his
property. It is also apparent that the County has indicated it does not have
the authority to subdivide the property into two lots, and the County is aware
that only one viable building site exists as a result of its decision to deny
that subdivision. "While a landowner must give a land-use authority an
opportunity to exercise its discretion, once it becomes clear that the agency
lacks the discretion to permit any development, or the permissible uses of the
property are known to a reasonable degree of certainty, a takings claim is
likely to have ripened. The case is quite unlike those upon which respondents
place principal reliance, which arose when an owner challenged a land-use
authority's denial of a substantial project, leaving doubt whether a more
modest submission or an application for a variance would be accepted." (Palazzolo,
supra, 533 U.S. at p. 620.) Because the County has made it clear that its
wetland and ESHA regulations effectively limit the development of Dunn's
property to one residence, his takings claim is ripe for adjudication even
though he has not sought permission to build that residence. n11 n11 There
is no dispute that the subdivision of property constitutes a form of
"development" under the Coastal Act. (§ 30106; Ojavan Investors, Inc. v.
California Coastal Com. (1997) 54 Cal.App.4th 373, 387 [62 Cal. Rptr. 2d
803].) Our
conclusion is compelled by the United States Supreme Court's decision in Palazzolo.
The landowner in that case pursued a takings claim after the Rhode Island
Coastal Resources Management Council (Council) denied his applications to develop
the area containing wetlands on his 18-acre property, but before he made any
attempt to develop that portion of the property that did not contain wetlands.
Even though the Council informed the landowner "that they would have
allowed petitioner to build a residence on the upland parcel," the lower
courts concluded that the takings claim was not ripe for adjudication. (Palazzolo,
supra, 533 U.S. at p. 622.) (12) The United States Supreme
Court reversed, reasoning that "[r]ipeness doctrine does not require a
landowner to submit applications for their own sake. Petitioner is required to
explore development opportunities on his upland parcel only if there is
uncertainty as to the land's permitted use." (Palazzolo, supra,
533 U.S. at p. 622, italics added.) The court further concluded that "Williamson
County and our other ripeness decisions do not impose further obligations
on petitioner, for the limitations the wetland regulations imposed were clear
from the Council's denial of his applications, and there is no indication that
any use involving any substantial structures or improvements would have been
allowed. Where the state agency charged with enforcing a challenged land-use
regulation entertains an application from an owner and its denial of the
application makes clear the extent of development permitted, and neither the
agency nor a reviewing state court has cited noncompliance with reasonable
state-law exhaustion or pre-permit processes
[citation], federal ripeness
rules do not require the submission of further and futile applications ...
." (Palazzolo, supra, at pp. 625-626.) In
concluding that Dunn's regulatory takings claims were not ripe, the trial court
reasoned that "[u]ncertainty exists with respect to the scope of any
development project which would be allowed on the remaining existing 'building
envelope,' whether the required setbacks and wetlands protections would allow
for any alternative configuration of the lot(s) and building envelope(s),
whether the County might entertain zoning or other regulation variances which
would enable plaintiff to utilize the parcel to the fullest extent possible, or
whether the County would allow some sort of development which involved minor
intrusions into the buffer zone areas, in order to avoid a potential takings
claim" pursuant to section 30010. None of these stated grounds undermines
the unequivocal and final nature of the County's decision denying the lot
split. The County has made clear that only one viable building site remains
after the application of its regulations, and that Dunn will be allowed to
build a single-family residence on that site. It is also undisputed that no
alternative configuration of the lots would solve the problem, and that the
application of the County's wetland and ESHA regulations will have no effect on
Dunn's ability to build one residence on the building site that is not affected
by those regulations. Moreover, the County has indicated that it will not be
necessary to allow intrusions into the buffer area because there is ample room
for Dunn to build a residence on the remaining building site. Because the
County has stated that it will not allow Dunn to subdivide his property, and
that it will allow him to build only one residence on the remaining building
site, the permissible use of the
property is known to a reasonable degree of certainty. Accordingly, the takings
claims are ripe for review. Because
Dunn's regulatory takings claims are ripe for adjudication, the trial court
erred in granting judgment on those claims in favor of the County. By
extension, the court also erred in granting judgment on the remaining claims
for substantive due process, equal protection, and civil rights violations. n12
We therefore reverse the grant of
judgment on those claims and remand for further proceedings. n12
Because we reverse the judgment in favor of the County on the substantive due
process claim, we need not address Dunn's contention that the trial court erred
in deeming the claim derivative of the regulatory takings claims. (See Lingle
v. Chevron U.S.A. Inc. (2005) ___ U.S. ___ [125 S.Ct. 2074, 2082-2083]
[recognizing that the determination whether a regulation "substantially
advances" a legitimate government interest for purposes of substantive due
process is separate and distinct from the determination whether the application
of a regulation effects a taking].) DISPOSITION Judgment
in favor of the County on Dunn's regulatory takings claims and his claims for
violations of his substantive due process, equal protection, and civil rights
is reversed. In all other respects, the judgment is affirmed. The parties shall
bear their own costs on appeal. Gilbert,
P. J., and Coffee, J., concurred. 
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