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Filed 4/11/03
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SIERRA CLUB et al.,

Plaintiffs
and
Appellants,

A100194
v.

CALIFORNIA COASTAL
(San Francisco County
COMMISSION,
Super. Ct. No. 315686, 318780)

Defendant and Respondent;
CATELLUS RESIDENTIAL GROUP,

Real Party in Interest and
Respondent.

May the California Coastal Commission (Commission) consider the
environmental impacts of development outside the coastal zone when approving a project
that straddles the coastal zone boundary? We hold that it may not, and that the
Commission acted correctly when it confined its analysis of a project to the
environmental impacts of the portion lying inside the coastal zone.

At issue in this case is a 114-home housing project proposed to be built on a Los
Angeles bluff near the Pacific Ocean. Because a portion of the project lies inside the
coastal zone and under the jurisdiction of the Commission, the developer was required to
seek a Commission coastal development permit. The Commission rejected an earlier

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for publication with the exception of parts II.B and all its subparts and part III.

1

version of the project, but approved the project after the developer made modifications to
alleviate many of the Commission's concerns.

The Sierra Club disagreed with the Commission's decision and sought review by a
petition for writ of mandate. The trial court denied relief. Having carefully reviewed the
record, we agree with the trial court. The Commission's decision is supported by
substantial evidence and was arrived at in compliance with both the California Coastal
Act and California Environmental Quality Act. We further hold that the Commission is
barred by statute from considering the impacts of those portions of a project outside the
coastal zone; that the Commission can consider the condition of a wildlife habitat in
determining whether it is an Environmentally Sensitive Habitat Area (ESHA); and that
the promise of a developer to create an ESHA in the future does not subject that area to
ESHA protections beforehand. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND

Respondent and real party in interest Catellus Residential Group (Catellus) owns a
44.69-acre parcel of property located in the Westchester-Playa del Rey area of Los
Angeles. The property is located about a mile from the ocean. It consists of a broad,
gently sloping bluff top that leads to moderate to steep slopes, which descend on the
northerly and westerly boundaries to the property line. The bluff face, but not the bluff
top, falls in the coastal zone and is therefore subject to the Commission's jurisdiction.
(See Pub. Resources Code, � 30103.) The site is adjacent to Lincoln Boulevard (State
Highway 1) on the east and an existing residential neighborhood to the south.

Another developer sought to develop the parcel in the early 1990's. In 1993, the
City of Los Angeles (City) prepared an environmental impact report (EIR) in connection
with that project, but the developer abandoned the project before obtaining any permits.

Catellus thereafter acquired the property. Initially, Catellus proposed a
development with 119 single-family homes (the Project). Because a portion of the
Project was located in the coastal zone, Catellus was obliged to obtain permits from both
the City and the Commission. (See Pub. Resources Code, �� 30600, subd. (a), 30601;

2

Cal. Code Regs., tit. 14, � 13307.) Catellus applied for the required permits. The City
prepared a second EIR and issued a coastal development permit.

The Sierra Club appealed the City's decision to issue a coastal development permit
to the Commission, which has jurisdiction to review such decisions. (Pub. Resources
Code, � 30625, subd. (a).) In August 1999, the Commission reviewed the applications
for City and Commission coastal development permits and rejected them. It cited
concerns about excessive grading, landform alteration, and the impact on coastal views.
One source of concern was Catellus's plan to fill Hastings Canyon, on the westernmost
coastal edge of the property.

Catellus revised the Project. It reduced the number of homes to 114. It removed
or buried retaining walls along the bluff face. It eliminated coastal zone filling of
Hastings Canyon. It expanded the amount of revegetation of coastal scrub. It agreed to
purchase 15 lots along the bluff face, adjacent to the property, and retire its development
rights, thus limiting future development along the bluff face. The revised Project retained
key aspects of the original Project, including construction of a public-access view park
along the bluff rim and confinement of residential development to the bluff top, outside
the coastal zone. Catellus then applied for new permits.

The City prepared a supplement to its second EIR and again concluded that the
Project would not have significant environmental impacts. It issued a new coastal
development permit on January 28, 2000. Once again, Sierra Club appealed to the
Commission.

The Commission staff prepared a report addressing the appeal on the City permit
and Catellus's renewed application for a Commission permit. It recommended approval
of both permits, with one major condition: that the Project be modified to eliminate
"Street A," a proposed road leading up the bluff face that would connect the Project to
Lincoln Boulevard. Catellus had designed the Project so that 29 of the 114 homeowners
could reach their property through existing city streets. However, the remaining 85
homeowners would travel to their property via Street A. Street A would be
approximately 50-60 feet wide and 480 feet long. It would extend from Lincoln

3

Boulevard, up through the bluff face, to the bluff top, where it would connect to a series
of cul-de-sacs. To construct the road, Catellus proposed to grade approximately 54,000
cubic yards of soil. About half of Street A would be located in the coastal zone.

The Commission held a consolidated public hearing on the two permits on
August 7, 2000. After hearing evidence in favor of and against the Project, the
Commission voted seven to four to amend the staff Project description to eliminate the
"No Street A" condition proposed by the Commission staff. It then voted nine to two to
approve both permits for the Project. Because the commissioners rejected the staff
recommendation, and implicitly, the staff report embodying that recommendation, the
commissioners did not adopt written findings to explain their decision at the August 7
hearing. Instead, the staff prepared revised findings reflecting the Commission's actions.
The Commission considered the proposed revised findings and approved them on
December 11, 2000.

On October 6, 2000, appellants Sierra Club, Spirit of the Sage Council, and
Ballona Ecosystem Education Project (collectively Sierra Club) filed a petition for writ of
administrative mandate in San Francisco Superior Court challenging the Commission's
decision to grant the permits and allow development. The petition named as defendants
the Coastal Commission, Catellus, and the City.1

The Sierra Club applied for a preliminary injunction, asking the court to enjoin
Catellus from conducting any grading on the property pending resolution of its suit. The
trial court denied the request. On appeal, we reversed. In an unpublished opinion, we
concluded that the trial court abused its discretion in denying a preliminary injunction
because the absence of written findings in the then-existing trial court record made it
impossible to evaluate the legality of the Commission's actions.

1 The City did not appear in this action. However, appellant Spirit of the Sage
Council also sued the City in a separate action in Los Angeles Superior Court,
challenging its approval of the Project. The City prevailed in the trial court in that action.
The appeal in Coalition of Concerned Communities v. City of Los Angeles, B149092, is
pending in the Second District.

4

After the case returned to the trial court, the parties proceeded to a hearing on the
merits. With the Commission's December 11, 2000, written findings now part of the
record, the trial court denied the Sierra Club's petition on all grounds. It entered its
statement of decision and judgment on July 23, 2002.

The Sierra Club timely appealed. We subsequently granted a writ of supersedeas
staying the trial court's judgment until we had had an opportunity to rule on the merits of
the appeal.
DISCUSSION
I.
Standard of Review

The Sierra Club challenges the Commission's actions through a petition for writ of
mandate under Code of Civil Procedure section 1094.5. (See Pub. Resources Code,
� 30801 [authorizing any "aggrieved person" to seek judicial review of Commission
decisions].) Code of Civil Procedure section 1094.5 imposes a deferential standard of
review; unless the Commission has exceeded its jurisdiction or denied a fair hearing, the
trial court may only reverse if it finds a prejudicial abuse of discretion. (Code Civ. Proc.,
� 1094.5, subd. (b).) "Abuse of discretion is established if the [Coastal Commission did
not] proceed[] in the manner required by law, the order or decision is not supported by
the findings, or the findings are not supported by the evidence." (Code Civ. Proc.,
� 1094.5, subd. (b).) "Where it is claimed that the findings are not supported by the
evidence . . . , abuse of discretion is established if the court determines that the findings
are not supported by substantial evidence in the light of the whole record." (Code Civ.
Proc., � 1094.5, subd. (c).)

"The substantial evidence rule requires the trial court to start with the presumption
that the record contains evidence to sustain every finding of fact. [Citation.] The burden
is upon the appellant to show there is no substantial evidence whatsoever to support the
findings. [Citation.] The trier of fact . . . is the sole arbiter of all conflicts in the
evidence, conflicting interpretations thereof, and conflicting inferences which reasonably
may be drawn therefrom; it is the sole judge of the credibility of the witnesses [and] may

5

disbelieve them even though they are uncontradicted if there is any rational ground for
doing so . . . ." (Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970-971.) The court
must consider all relevant evidence, including evidence that detracts from the decision.
(Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610 (Pygmy
Forest).) Ultimately, however, " `[i]t is for the agency to weigh the preponderance of
conflicting evidence [citation]. 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.' " (Ibid., italics omitted.)

Our function on appeal is the same as that of the trial court. We review the
administrative decision to determine whether it is supported by substantial evidence.
(City of San Diego v. California Coastal Com. (1981) 119 Cal.App.3d 228, 232; Lewin v.
St. Joseph Hospital of Orange (1978) 82 Cal.App.3d 368, 386.) As to questions of law,
we perform "essentially the same function" in reviewing administrative mandate
proceedings as the trial court, and "the conclusions [of law] of the trial court are not
conclusive on appeal." (Lewin v. St. Joseph Hospital of Orange, at p. 387.)
II.
The Commission's Decision Complies with the Coastal Act
A.
The Coastal Act

The California Coastal Act of 1976, Public Resources Code sections 30000-
309502 (Coastal Act or Act), "was enacted by the Legislature as a comprehensive scheme
to govern land use planning for the entire coastal zone of California. The Legislature
found that `the California coastal zone is a distinct and valuable natural resource of vital
and enduring interest to all the people'; that `the permanent protection of the state's
natural and scenic resources is a paramount concern'; that `it is necessary to protect the
ecological balance of the coastal zone' and that `existing developed uses, and future
developments that are carefully planned and developed consistent with the policies of this
division, are essential to the economic and social well-being of the people of this state

2 Unless otherwise indicated, all further section references are to the Public
Resources Code.

6

. . . .' " (Yost v. Thomas (1984) 36 Cal.3d 561, 565 (Yost), quoting � 30001, subds. (a)-
(d).)

The Act creates a coordinated system of land use regulation for the entire coastal
zone of the state. (See � 30103.) The Act's "cardinal requirement" (California Coastal
Com. v. Quanta Investment Corp. (1980) 113 Cal.App.3d 579, 587-588), and its central
enforcement mechanism, is the requirement that any person who seeks to undertake a
development within the coastal zone must first obtain a coastal development permit.
(� 30600, subd. (a).) The Act requires two sets of approvals. A developer must seek
approval from the local government with jurisdiction over the area to be developed,
subject to appeal to and review by the Commission, and must also seek a permit from the
Commission itself. (�� 30600-30601, 30625.)

In deciding whether to issue a permit or approve a permit already issued by the
local government, the Commission must evaluate the proposed development for
consistency with the policies of the Coastal Act. (� 30200.) The Sierra Club contends
that the Commission breached this duty in three ways: by ignoring inconsistencies
between the Project and view preservation policies, by ignoring inconsistencies between
the Project and habitat preservation policies, and by failing to issue written findings
supporting its decision in the manner required by law. We consider each contention in
turn.
B.
The Project Is Consistent with Coastal Act View Policies
1.
Substantial Evidence Supports the Conclusion that the
Project Will Not Significantly Affect Views

The Sierra Club contends that approval of the permit is inconsistent with coastal
view policies favoring preservation of the scenic and visual quality of the coast.
However, substantial evidence supports the Commission's conclusion that the Project
conforms to these policies.

Section 30251 provides, "The scenic and visual qualities of coastal areas shall be
considered and protected as a resource of public importance. Permitted development
shall be sited and designed to protect views to and along the ocean and scenic coastal

7

areas, to minimize the alteration of natural land forms, to be visually compatible with the
character of surrounding areas, and, where feasible, to restore and enhance visual quality
in visually degraded areas." In addition, section 30253 requires in part that new
development must "[a]ssure stability and structural integrity, and neither create nor
contribute significantly to erosion, geologic instability, or destruction of the site or
surrounding area or in any way require the construction of protective devices that would
substantially alter natural landforms along bluffs and cliffs." (� 30253, subd. (2).) Under
these policies, coastal views must be protected and erosion and landform alteration
minimized. Significantly, the Coastal Act does not establish a zero tolerance threshold; it
does not bar all impacts on views, nor does it preclude all landform alteration. Instead,
the Coastal Act requires the Commission to value these considerations and to ensure that
every proposed development makes design choices that give them suitable weight.

The Commission concluded that the Project "as conditioned, will not result in
significant adverse impacts to views of the bluff." It supported that conclusion with a
series of more specific findings: "Revegetation of the bluff with native plants, including
coastal sage scrub, will improve the visual quality of the bluff. Revegetation with coastal
sage scrub will also provide screening to reduce the visual impact of Street `A' from
nearby coastal access routes. After revegetation of the bluff with native shrubs, Street
`A' will be only minimally visible along the coastal routes of Lincoln Boulevard and
Jefferson Boulevard. The views of Street `A' from Lincoln and Jefferson Boulevard
from within the coastal zone, are limited due to distance, location of the access road in
the northeast corner of the property, and bluff orientation." In addition, the Commission
found that existing parcels could have been developed all along the bluff face. The
Project would not build any homes on the bluff face; moreover, it would provide for the
purchase and retirement of development rights for 15 legal lots on the bluff face adjacent
to the Project. Eighty-one percent of the acreage in the coastal zone would remain
ungraded. For these reasons, the Commission found the Project consistent with section
30251.

8

The Commission further concluded that the Project "provide[s] geologic stability
and erosion control in its design consistent with the policies of Section 30253(1) and (2)
of the Coastal Act." It found that the Project incorporates bluff top setbacks sufficient to
eliminate the need for grading the entire bluff face. The Project includes bluff edge
erosion-control grading and a runoff design that would minimize grading of the bluff
face. It also proposes the underground sinking of support structures, or "soldier piles," as
a way of limiting erosion without affecting views.

Substantial evidence in the record supports these conclusions. Photographs of the
region document the visual impact that existing bluff-face development has created.
Photographic simulations, as well as the City's second EIR, indicate that Street A likely
will be invisible from most vantage points. Topographic maps of the property show that
Street A will be sited behind a small ridge that will render it less conspicuous, and will
follow natural contours to a great extent. Those same maps suggest that the placement of
Street A minimizes its visual impact. The Project approval includes a special condition
requiring revegetation of the bluff face.

The Sierra Club contends that construction of Street A will necessarily result in
damage to coastal views. This argument rests, in part, on a staff proposed finding that
Street A's impact on views would be significant. However, other evidence in the record
discussed above contradicts the proposed staff finding. The fact that the staff made a
recommendation that the Commission did not adopt only demonstrates that this decision
is one upon which reasonable minds might differ. For purposes of our review, the
existence of contrary or conflicting evidence, or inferences therefrom, does not preclude
our conclusion that, in light of the whole record, other solid, credible evidence supports
the findings the Commission did adopt. (Pygmy Forest, supra, 12 Cal.App.4th at pp.
610-611.)

The Sierra Club relies on a claimed finding by the City that impacts on views
would be significant. The record does not support this assertion. The 1993 EIR for an
earlier project on the same property concluded that view impacts would be significant, in
part because new homes on the bluff top, outside of the coastal zone, would block the

9

view of existing homes adjacent to the property. In contrast, in the 1998 EIR for the
Project as ultimately approved, Los Angeles concluded that the impact on views, albeit
adverse, would not be significant.3 Terrace drains and pile walls would have only
minimal effects on views. The proposed view trail would not have a significant negative
visual impact. Project replanting of the bluff face would result in enhanced and more
natural views of the bluff face. With respect to Street A, the road would be invisible
from most vantage points. The exception is the view from Hughes Terrace, directly
across Lincoln Boulevard from Street A, but "with the proposed revegetation of the bluff
face and relatively unchanged distant views of this portion of the site[,] these impacts do
not meet the criteria for significance." The City's EIR supports the Commission's
findings.

The Sierra Club relies on the Commission's rejection of a previous incarnation of
the Project that also included Street A as proof that the Project is inconsistent with
section 30251. It argues that the Commission should be bound to reach an identical
conclusion with respect to the amended Project. This argument ignores three points.
First, it presumes that the original denial was correct, and therefore the current approval
must be incorrect. This is not necessarily so; the reverse might be true, and it might be
the original denial that was incorrect. We are not called upon to evaluate the propriety of
the original denial, so we do not decide the point. Second, the amended Project made
several changes that reduced the impact of the Project on views and erosion, including
eliminating the fill of Hastings Canyon in the coastal zone and moving support structures
along the bluff rim below the surface or outside the coastal zone. Based on the evidence

3 The California Environmental Quality Act (CEQA) requires state and local
public agencies to evaluate the significant environmental impacts of their activities.
(Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1371.) A significant effect is
defined as " `a substantial, or potentially substantial, adverse change in the
environment.' " (Laurel Heights Improvement Assn. v. Regents of University of
California (1993) 6 Cal.4th 1112, 1123, quoting Pub. Resources Code, � 21068.) Thus,
an impact may be adverse but insignificant because the impact, although negative, is not
substantial.

10

before it, the Commission was entitled to conclude that these changes were sufficient to
minimize the impact on views. Third, the Commission is vested with a certain amount of
discretion in deciding whether a given project conforms to Coastal Act policies. (See
Pygmy Forest, supra, 12 Cal.App.4th at pp. 609-611 [decision to issue permit may be
reviewed only for abuse of discretion].) A record may contain substantial evidence
sufficient to support either a conclusion of conformity with the Coastal Act or a
conclusion of inconsistency with the Coastal Act, and reasonable minds might differ.
With such a record, it is not unlawful for an agency to reach one conclusion and then
change its mind one year later when presented with responsive changes: if the evidence
would support either conclusion, then the decision is reserved to the agency's discretion,
and we would not reverse either choice. Here, our task is to determine only whether the
decision reached by the Commission in the year 2000, on the Project as presented to it the
second time, is supported by substantial evidence. We conclude that it is.

Fundamentally, the Sierra Club's argument appears to rest on the idea that the
Coastal Act imposes a zero tolerance threshold for impacts on views and landform
alteration. It does not. The Coastal Act treats coastal views as a resource to be
"considered and protected." (� 30251.) As a means to that end, projects must be "sited
and designed" to "protect views" and "minimize the alteration of natural land forms."
(Ibid.) The evidence before the Commission allowed it to conclude that the development
in the coastal zone had been sited and designed to eliminate any significant effect on
views and to minimize the impact on the bluff face.
2.
Discrepancies in the Project Description Do Not
Support Issuance of a Writ

In the alternative, the Sierra Club contends that the Commission permit approvals
rest on a misdescription of the Project. The staff findings refer to soldier piles that will
be buried to reinforce the edge of the bluff top; the Sierra Club contends that in fact the
Project will involve exposed retaining walls inside the coastal zone. The staff findings
also describe the cut into the bluff face for Street A as lowering that section of the bluff
face by 10 to 56 feet rather than the 10 to 73 feet all sides agree will actually occur.

11

There is no contradiction in the Commission's finding that the soldier piles will be
"buried atop the bluff . . . above and outside of the erosional gullies." Various maps and
engineering plans in the record reveal a common-sense interpretation. The soldier piles
will be located at the apex of the bluff face, where the bluff face meets the bluff top,
approximately 145 feet above sea level. They will be placed so as not to block existing
erosional gullies. Nevertheless, they will be buried--that is, installed beneath the surface
of the ground. Consequently, the Commission's finding that the soldier piles will have
no significant impact on views or erosion is supported by substantial evidence.

In contrast, the misstatement of the height of the bluff face cut is in fact an error in
the original findings, but it does not affect the validity of the Commission's conclusions.
The original findings described the cut as "approximately" 10 to 56 feet. The error was
corrected in an amendment to the findings before the final findings were approved; the
final findings thus include a correct description of the Project. The Commission was
aware of the intended design for Street A. In light of the evidence before it that correctly
described the Project, we have no basis for concluding that the initial mistake had any
impact on the Commission's deliberations or decision, and we conclude there was no
prejudicial abuse of discretion.
C.
The Commission's Decision Complies with Coastal Policies
Governing ESHAs

The Sierra Club argues that the record does not support the finding that the Project
is consistent with section 30240, which calls for the protection of ESHAs. Section 30240
requires that ESHAs be protected against habitat disruption, and requires development in
adjacent areas to be designed to prevent degradation of the habitat and compatible with
continuance of the habitat area. We conclude that the Commission did not err.

12

1.
Substantial Evidence Supports the Conclusion that the
Project Will Not Significantly Affect Any ESHA

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.) The Commission found that the Project area was not an ESHA. Substantial
evidence supports that finding.

The Commission relied in part on the City's 1998 EIR, which analyzed in depth
the plant and animal habitat resources in the area. The EIR concluded, "The project site
generally contains very low habitat resource values and none of the sensitive species
found in the adjacent Ballona Wetlands are dependent on resources found exclusively on
the project site . . . . [T]he scattered patches of coastal sage scrub do not represent
sufficient habitat to support the wildlife typically found in this habitat type . . . . Those
mammals observed on-site are comprised of common and relatively disturbance-tolerant
species and no sensitive species were observed or are expected." The EIR reviewed
several surveys of the Project area conducted in 1989-90 and updated in 1997 and found
no sensitive mammals, birds, reptiles, or invertebrates present. It concluded that the
Project would not have significant environmental habitat impacts.

As the Sierra Club correctly points out, the EIR identifies one significant plant
species on the site--Diegan sage scrub. To qualify as an ESHA, an area must contain
habitat that is "rare or especially valuable." (� 30107.5.) The Department of Fish and
Game concluded 20 years ago that the habitat was not especially valuable, because
development outside the coastal zone and outside the control of the Commission would
make it impossible to manage the habitat as an ESHA. A 1989-90 field survey found
limited habitat value because of low soil nutrient content, erosion and habitat disturbance.
The City EIR confirmed that by 1997, only isolated stands of scrub were left, and they
were disturbed by ongoing disking of the bluff top, outside the coastal zone. The
Commission's biologist concluded that no ESHA existed because the sage scrub habitat
on the site is scattered, severely degraded, and therefore of little value. A Catellus

13

biologist agreed. Based on this evidence, the Commission could conclude that no ESHA
existed.

The Sierra Club contends that the Commission could not consider the condition of
the habitat in determining whether it was especially valuable, and thus an ESHA. We
cannot reconcile this view with the plain language of section 30107.5 or with Bolsa
Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493 (Bolsa Chica). Section
30107.5 and section 30240 are intended to ensure preservation of "rare or especially
valuable habitat" from degradation. (� 30107.5.) If habitat has been degraded already
and is not viable, there is nothing left to protect, and preservation of unviable habitat will
do little to promote the policies underlying the Coastal Act. Bolsa Chica recognizes this
point explicitly: "We 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, supra, 71 Cal.App.4th at p. 508.) The Department
of Fish and Game concluded in 1984 that the sage scrub habitat on the bluff face,
positioned as it was near existing and probable development, would not be viable.
Re-evaluating the habitat in 2000, the Commission could consider the evidence showing
that the existing habitat was not viable and of little value and find that the habitat was not
an ESHA.

The Sierra Club disregards the recommendations of the Commission and Catellus
biologists and the survey contained in the EIR and instead points to other evidence in the
record that it contends shows the Project area is an ESHA, relying primarily on its expert,
Dr. Travis Longcore. The Sierra Club's evidence on this point establishes only that
reasonable minds might differ. For purposes of our review, the existence of contrary or
conflicting evidence, or inferences therefrom, does not preclude our conclusion that, in
light of the whole record, other evidence supports the findings that the Commission did
adopt. (Pygmy Forest, supra, 12 Cal.App.4th at p. 610.)

14

2.
ESHA Protections Do Not Apply to Areas Which Are
Not Now ESHAs

The Sierra Club contends further that the Project is inconsistent with the Coastal
Act's habitat protection requirements because Catellus's revegetation of the bluff face
will create an ESHA in the future. The Sierra Club argues that the Coastal Act's
language and underlying intent require planned future ESHAs to be subject to ESHA
protections in the present. This is an issue of first impression. We conclude that both the
language and intent of the Coastal Act dictate the opposite conclusion: ESHA
protections do not apply unless an area is currently an ESHA.

Under section 30240, "[e]nvironmentally sensitive habitat areas 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).) Under the plain
meaning of this provision, environmental protections flow from recognition that an area
is currently an ESHA. Nothing in the statute suggests that these protections should apply
before an area becomes an ESHA, or should continue to apply if it is no longer an ESHA.

Accepting the Sierra Club's invitation to consider the underlying purposes of the
Coastal Act, we reach the same conclusion. Catellus's restoration of habitat along the
bluff face is an environmental benefit, and is consistent with the Coastal Act's goal of
protecting coastal environmental resources. (� 30240.) It creates valuable habitat where
none now exists. If we were to adopt the Sierra Club's interpretation, we would create
disincentives for any future developer to engage in habitat restoration as part of a
development. We decline to interpret section 30240 in this manner.

Consequently, nothing in the Commission's approval of the Project is inconsistent
with these protections. The bluff face is not now an ESHA. The Commission can
authorize development along the bluff face without violating section 30240, subdivision
(a). Catellus may construct Street A, and then restore the surrounding areas. If its
restoration results in creation of an ESHA, only then will the protections of section 30240
apply.

15

3.
The Commission Does Not Have Jurisdiction to
Consider the Impact of Development Outside the
Coastal Zone

Finally, the Sierra Club argues that the Commission failed to consider the impact
of the Project on adjacent ESHAs. We conclude that the Commission gave sufficient
consideration to the impact of those portions of the Project subject to its jurisdiction.
Section
30240,
subdivision (b) provides: "Development in areas adjacent to
environmentally sensitive habitat areas . . . shall be sited and designed to prevent impacts
which would significantly degrade those areas, and shall be compatible with the
continuance of those habitat . . . areas." The Project is adjacent to the Ballona wetlands,
an ESHA inside the coastal zone. The EIR and Commission staff considered the impact
of the development inside the coastal zone, Street A, on the Ballona wetlands and
determined that that development would not be incompatible with and would not
significantly degrade the wetlands. The Commission considered these reports and
concluded that approval of development in the coastal zone was consistent with section
30240, subdivision (b). The reports constitute substantial evidence sufficient to support
the Commission's decision.

However, the Sierra Club contends that the Commission erred as a matter of law
by failing to consider the impact of the portion of the Project outside the coastal zone on
the Ballona wetlands. According to the Sierra Club, because development inside the
coastal zone (Street A) will support development outside the coastal zone (housing atop
the bluff), the Commission has jurisdiction--and, indeed, is statutorily obligated--to
consider and reject the development inside the coastal zone because that portion of the
project outside the coastal zone impacts an ESHA.

The Sierra Club's argument raises a previously unresolved issue. When a project
straddles the coastal zone border, does the Commission have jurisdiction to evaluate the
impacts emanating from the portion of the project outside the coastal zone before issuing
a coastal development permit? For the reasons that follow, we hold that it does not. The

16

Commission may not consider the environmental impacts of development outside the
coastal zone when deciding whether to approve development inside the coastal zone.

As both sides agree, resolution of this issue hinges on the construction of a pair of
statutes, section 30200 and section 30604, subdivision (d). Section 30200 provides in
relevant part, "All public agencies carrying out or supporting activities outside the coastal
zone that could have a direct impact on resources within the coastal zone shall consider
the effect of such actions on coastal zone resources in order to assure that [the policies of
the Coastal Act] are achieved." According to the Sierra Club, the portion of the Project
inside the coastal zone will "support" the portion of the Project outside the coastal zone;
therefore, the Commission must base its permit decision on the effect of out-of-zone
portions of the Project. In other words, the Sierra Club argues that notwithstanding the
fact that only a portion of Street A is within the coastal zone, the Commission must
consider the impact of the entire expanse of Street A and the housing development
because that portion of Street A that is within the coastal zone supports or enables the
Project.

However, section 30604, subdivision (d) provides: "No development or any
portion thereof which is outside the coastal zone shall be subject to the coastal
development permit requirements of this division, nor shall anything in this division
authorize the denial of a coastal permit by the commission on the grounds the proposed
development within the coastal zone will have an adverse environmental effect outside
the coastal zone." According to the Commission, under section 30604, subdivision (d),
the portion of the Project outside the coastal zone is exempt from Commission regulatory
authority, including any authority to consider that portion's adverse impacts inside the
coastal zone.

In interpreting section 30604, subdivision (d), the legislative history is instructive.
Until 1978, section 30604, subdivision (d) read as follows: "Nothing in this division shall
authorize denial of a coastal development permit on grounds that a portion of the
proposed development not within the coastal zone will have adverse environmental
effects outside the coastal zone; provided however, that the portion of the proposed

17

development within the coastal zone shall meet the requirements of this chapter." This
former version of section 30604, subdivision (d) addressed only the two simplest
scenarios. Under former section 30604, subdivision (d), impacts outside the zone from
development outside the zone could not be considered, while impacts inside the zone
from development inside the zone had to be considered. As for the two more
complicated scenarios--impacts inside the zone from development outside the zone, and
impacts outside the zone from development inside the zone--former section 30604,
subdivision (d) was silent or at best ambiguous.

In 1978, the Legislature addressed this ambiguity and amended section 30604,
subdivision (d) to clarify the scope of the Commission's jurisdiction over development
that raised either of these two more complicated scenarios. The second clause of section
30604, subdivision (d) now expressly addresses impacts outside the zone from
development inside the zone: "[Nothing] in this division [shall] authorize the denial of a
coastal permit by the commission on the grounds the proposed development within the
coastal zone will have an adverse environmental effect outside the coastal zone." Thus,
the Legislature elected not to extend jurisdiction over such effects to the Commission. In
turn, the first clause of section 30604, subdivision (d) addresses development outside the
coastal zone: "No development or any portion thereof which is outside the coastal zone
shall be subject to the coastal development permit requirements of this division . . . ."
For these portions of a development, the Commission has no jurisdiction to require
permits.

The legislative history illuminates the intent behind the 1978 amendment. The
Senate Natural Resources and Wildlife Committee summary of Senate Bill No. 1873,
which amended section 30604, subdivision (d), explained that the amendment was
intended to resolve doubts over treatment of parcels straddling the coastal zone boundary.
It cited an Attorney General opinion letter that concluded that if the coastal zone bisected
a parcel, the Commission could look at the entire parcel in making its permitting

18

decision.4 The proposed amendment rejected that position. (Sen. Com. on Natural
Resources and Wildlife, Analysis of Sen. Bill No. 1873 (1977-1978 Reg. Sess.) as
introduced March 22, 1978, p. 3.) As the Assembly Resources, Land Use and Energy
Committee summary similarly explained, the measure was needed to "clarify that when a
development project is partially within and partially without the coastal zone, only that
portion of the project within the coastal zone is subject to commission jurisdiction . . . ."
(Assem. Com. on Resources, Land Use and Energy, Analysis of Sen. Bill No. 1873
(1977-1978 Reg. Sess.) as amended August 7, 1978, p. 3; see also California Coastal
Commission, Enrolled Bill Rep. on Sen. Bill No. 1873 (1977-1978 Reg. Sess.) Sept. 13,
1978, p. 2 [amendment "makes clear the Coastal Commissions have no jurisdiction over
portions of projects lying outside the coastal zone"].)

The history confirms that the Legislature intended to reject the notion that
Commission jurisdiction over part of a project could be leveraged into jurisdiction over
the entire project. If the Commission has no jurisdiction over the portion of a project
outside the coastal zone, it follows that the Commission has no jurisdiction to evaluate
that portion of the project to determine whether its effects are consistent with Coastal Act
policies. Furthermore, if the Commission cannot make findings that the portion of a
project outside the coastal zone is inconsistent with Coastal Act policies, it cannot use
any such findings as a basis for denying a permit for the portion of the project inside the
coastal zone. Thus, we conclude that the first clause of section 30604, subdivision (d)
prevents the Commission from denying in-zone permits based on environmental impacts
originating outside the coastal zone. In this case, the Commission cannot deny the permit
for that portion of Street A within the coastal zone based on the environmental effects of
the 114 houses outside the zone.

4 No published Attorney General Opinion spells out this position. At oral
argument, counsel for the Commission explained that before the 1978 amendment, the
Commission had received an informal opinion letter advising it that it could exercise
jurisdiction over the entirety of any project that partially overlapped the coastal zone.

19

The Sierra Club argues that the first clause of section 30604, subdivision (d) only
limits the Commission's permitting jurisdiction, and does not preclude the Commission
from considering the effects of development outside the coastal zone. The Sierra Club
further contends that the Commission is required to consider these effects under section
30200, because its permit approval of Street A supports the building of homes along the
bluff top, outside the coastal zone, and the Commission should refuse a permit for Street
A if those homes would have adverse environmental impacts. (See � 30200 ["All public
agencies carrying out or supporting activities outside the coastal zone that could have a
direct impact on resources within the coastal zone shall consider the effect of such actions
on coastal zone resources in order to assure that [the policies of the Coastal Act] are
achieved."].)

The argument does not withstand scrutiny because it founders on a logical
inconsistency. If, on the one hand, the construction of Street A is unrelated to the
building of homes on the bluff top, then the construction of Street A cannot be said to
support development outside the coastal zone under section 30200. There would be no
nexus between the decision to deny a permit for Street A and the goal of reducing
environmental impacts from an entirely unrelated portion of the Project. If, on the other
hand, the building of Street A is essential to the construction of homes on the bluff top,
such that without Street A some smaller number of homes would have to be built, then
the Commission would be able to ensure a reduced development on the bluff top, outside
the coastal zone, by denying a permit for Street A. But this is precisely what the 1978
amendments to section 30604, subdivision (d) sought to prevent when they placed all
portions of projects outside the coastal zone beyond the reach of Commission
jurisdiction. We decline to interpret section 30604, subdivision (d) and section 30200 so
as to allow the Commission to accomplish through the back door what the Legislature has
told it it may not accomplish through the front door.5

5 Nor, we should note, has the Commission asked us to do so. At oral argument,
counsel for the Commission candidly acknowledged that the Commission is usually more

20

The Sierra Club argues that such an interpretation of section 30604, subdivision
(d) would work an impermissible implied repeal of section 30200. " `[T]he law shuns
repeals by implication . . . .' [Citation.] . . . Thus, to avoid repeals by implication `we are
bound to harmonize . . . provisions' that are claimed to stand in conflict." (Kennedy
Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 249-250.) However,
this argument hinges on a misapplication of the doctrine disfavoring implied repeals. The
doctrine provides that " `where two statutes treat the same subject, one being special and
the other general, unless they are irreconcilably inconsistent, the latter, although latest in
date, will not be held to have repealed the former, but the special act will prevail in its
application to the subject matter as far as coming within its particular provisions. . . .' "
(Wolfe v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 135.) It applies when a
later general statute follows an earlier specific statute. Here, however, the Legislature
passed a later specific statute, the amended version of section 30604, subdivision (d), two
years after an earlier general statute, section 30200.

Instead, we apply the following canons of construction in reaching our
interpretation. A more recent provision is typically more persuasive than an older one.
(See Schmidt v. Superior Court (1989) 48 Cal.3d 370, 383; Schmidt v. Southern Cal.
Rapid Transit Dist. (1993) 14 Cal.App.4th 23, 27.) Section 30604, subdivision (d) is the
more recent provision. We give effect to a specific statute relating to a particular subject
in preference to a general statute. (Murillo v. Fleetwood Enterprises, Inc. (1998)
17 Cal.4th 985, 992.) Section 30604, subdivision (d) deals specifically with the
geographic scope of the Commission's jurisdiction in issuing permits for projects that
straddle the coastal zone; section 30200 deals generally with any agency's actions, and
does not define the phrases "supporting activities," which on its face may or may not
extend to the issuance of permits inside the coastal zone. Whenever possible we seek "to

than willing to seek to expand its jurisdiction; this case represents the rare instance in
which it is not seeking to do so, in recognition of legislatively imposed limits on that
jurisdiction.

21

achieve harmony between conflicting laws [citation] and avoid an interpretation which
would require that one statute be ignored." (Schmidt v. Southern Cal. Rapid Transit
Dist., supra, 14 Cal.App.4th at p. 27; see Broughton v. Cigna Healthplans (1999) 21
Cal.4th 1066, 1086 ["[O]ur duty is to harmonize [statutes] if reasonably possible"].) We
cannot adopt the Sierra Club's interpretation of section 30200 without largely ignoring
section 30604, subdivision (d). The reverse does not hold true; if we interpret section
30604, subdivision (d) as governing the Commission's jurisdiction, section 30200 still
controls the responsibility of other agencies (such as the City) to consider the impact of
their actions (such as approval of development on the bluff top) on coastal resources.

The Sierra Club also turns to the federal Coastal Zone Management Act (CZMA),
in support of its interpretation of section 30604, subdivision (d). (16 U.S.C. �� 1451-
1465.) Under the CZMA, an entity conducting an activity that affects coastal zone
resources must seek a federal permit, and must include in its application a certification
that its activity complies with state coastal zone policies. (16 U.S.C. � 1456, subd.
(C)(3)(A).) The state's coastal agency must notify the federal permitting agency (here,
the Army Corps of Engineers) whether it concurs in the certification. (Ibid.) Catellus
sought and obtained such a permit here. According to the Sierra Club, the CZMA
expands the Commission's jurisdiction and authorizes it to review all aspects of the
Project, whether inside or outside the coastal zone.

We need not address the thorny federalism questions raised by the Sierra Club's
contention. The Sierra Club has not challenged the Army Corps of Engineers' decision
to issue Catellus a permit, nor has it challenged the Commission's role in the issuance of
that permit. The only issue before us is whether the Commission acted properly in
issuing state development permits. With respect to those permits, we believe the
Legislature expressed its intent when it amended section 30604, subdivision (d) in 1978.
The Sierra Club cites two cases that involve the courts' obligation to reconcile multiple
state statutes addressing a single subject, but those cases have no bearing when a state
statute and a federal statute, each addressing a different permitting decision, are at issue.
(See DeVita v. County of Napa (1995) 9 Cal.4th 763, 778 [reconciling Election Code and

22

Government Code provisions]; People v. Andrade (2002) 100 Cal.App.4th 351, 357
[harmonizing Penal Code sections].) The provisions of the CZMA, a federal law, offer
us no reason to arrive at a different interpretation of section 30604, subdivision (d).

Our holding that the Commission is barred from considering environmental
impacts emanating from outside the coastal zone will not result in those impacts being
ignored, nor will it leave the environment unprotected. The Legislature has seen fit to
spread the responsibility for coastal protection between state and local agencies. (See
� 30004.) Local government still has a vital role: "[t]o achieve maximum responsiveness
to local conditions, accountability and public accessibility, it is necessary to rely heavily
on local government and local land use planning procedures and enforcement."
(� 30004, subd. (a).) Consideration of environmental impacts originating outside the
coastal zone is the responsibility of the local agency with authority over their point of
origin--here, the City. It is not the responsibility of the Commission.

The Commission's conclusion that the portions of the Project inside the coastal
zone are consistent with the environmental policies of the Coastal Act is supported by
substantial evidence. In confining its analysis to these portions of the Project, the
Commission respected the boundaries on its power set out for it by the Legislature. The
trial court properly denied the Sierra Club's petition for a writ of mandate on this basis.
D.
The Commission Was Permitted to Adopt Formal Written Findings
After Its Approval of the Project

Before the August 7, 2000, hearing on the Project, the Commission's staff
prepared a detailed report addressing the Project and its consistency with the Coastal Act
and California Environmental Quality Act (CEQA). The Staff Report recommended
approval of the Project, subject to elimination of Street A, and included findings
supporting its recommendation.

The Commission adopted the staff recommendations and approved the Project,
with one notable change; it approved the Project with Street A. Because the draft
findings did not address the consistency of this version of the Project with the Coastal

23

Act and CEQA, the Commission directed its staff to prepare revised findings. At a
December 11, 2000, meeting, the Commission approved these revised findings.

The Sierra Club contends that this procedure was improper. It argues that the
Coastal Act prohibits the Commission from approving a project first and issuing revised
written findings later. In our previous decision, we expressly reserved opinion on
whether it was proper for the Coastal Commission to adopt written findings after it had
issued a permit. We now conclude that post-hearing revised written findings are lawful
under the circumstances presented here.

The Coastal Act requires that Commission decisions be supported by findings.
(� 30604, subds. (a)-(c).) Code of Civil Procedure section 1094.5, the basis for the Sierra
Club's petition, imposes a similar requirement. "[I]mplicit in section 1094.5 is a
requirement that the agency which renders the challenged decision must set forth findings
to bridge the analytic gap between the raw evidence and ultimate decision or order."
(Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,
515 (Topanga).) Section 1094.5 thus requires an agency to reveal the route it took from
evidence to action. (Ibid.) We agree with the Sierra Club's contention that the reasoning
from evidence to action must precede the decision to act; post-hoc rationalizations arrived
at only after an agency has made up its mind are of no benefit to a court attempting to
evaluate an agency's action under section 1094.5, and they do not satisfy Topanga's
requirement that the agency reveal the analytical route actually taken.

However, it is one thing to say that the agency's reasoning must precede its
decision. It is quite another to say, as the Sierra Club argues, that the written findings
which manifest the agency's reasoning must precede the decision. There is no such
requirement in the Coastal Act or in Code of Civil Procedure section 1094.5. By
analogy, it is commonplace for trial courts to first indicate their views on a matter at a
hearing and only later adopt a written order or set of findings spelling out their decision.
This does not mean that the written order consists only of post-hoc rationalizations;
instead, it means that the process of documenting the reasoning leading up to a decision
may follow the actual rendering of that decision. The Sierra Club offers no statutory

24

authority to support the argument that the Legislature intended to preclude agencies such
as the Commission from proceeding in a similar fashion and announcing decisions prior
to the preparation and approval of formal findings.

Regulations adopted under the Coastal Act authorize the procedure followed by
the Commission in this case. California Code of Regulations, title 14, section 13096,
subdivision (a) provides: "All decisions of the commission relating to permit applications
shall be accompanied by written conclusions about the consistency of the application
with [the Public Resources Code] and findings of fact and reasoning supporting the
decision." The regulations recognize that decisions of the commission will sometimes be
"different than those proposed by the staff in the staff recommendation . . . ." (Cal. Code
Regs., tit. 14, � 13090, subd. (d).) When that occurs, the prevailing commissioners must
"state the basis for their action in sufficient detail to allow staff to prepare a revised report
with proposed revised findings that reflect the action of the commission." (Id. � 13096,
subd. (b).) The commissioners must then approve the revised findings at a public
hearing. "The public hearing shall solely address whether the proposed revised findings
reflect the action of the commission." (Id. � 13096, subd. (c).) We see no inconsistency
between the procedure permitted by these regulations and any statutory requirements;
notably, neither Public Resources Code section 30604 nor Code of Civil Procedure
section 1094.5 specifies when the required findings must be made.

Our conclusion is consistent with that of the Second District, which recently
upheld the issuance of post-decision revised findings. (La Costa Beach Homeowners'
Assn. v. California Coastal Com. (2002) 101 Cal.App.4th 804, 819 (La Costa).) In La
Costa, three homeowners sought approval of a plan to demolish the existing homes on
their seaside lots and construct new residences. The Commission approved their permits,
including an oral modification to certain conditions imposed on the permits. Because of
this modification, the Commission staff issued revised proposed findings six weeks after
the approval hearing. These revised findings reflected the actions actually taken by the
Commission at the approval hearing and included an expanded justification for the

25

approval. (Id. at p. 812 & fn. 5.) The Commission adopted the revised findings two
months after the approval hearing. (Id. at p. 813.)

Neighbors petitioned to overturn the Commission's actions. They argued that the
post-hearing revised findings were "post hoc rationalizations of a decision that was not
otherwise supported." (La Costa, supra, 101 Cal.App.4th at p. 819.) The Second District
disagreed. It upheld the post-approval revised findings as simply "reflect[ing] in writing
the rationale that the Commissioners and staff articulated on the record at the [approval]
hearing." (Ibid.) Implicit in La Costa is the recognition that the Commission may--
indeed, must--issue revised findings when the decision it reaches departs in one or more
particulars from the recommendation supplied by staff. We agree with that conclusion.

The Sierra Club expresses concern that the formal findings were adopted after
litigation had ensued. This posed no obstacle in La Costa, where findings were likewise
adopted after a petition had been filed, and it poses no obstacle here. We decline to adopt
a rule that would preclude an agency from spelling out its reasoning once a petition for a
writ of mandate has been filed. We also decline to adopt a rule specifying just how
promptly written findings must be made. It is always easier to be certain that an agency's
stated reasoning is bona fide when findings are issued before a decision is reached, and
the longer an agency waits to explain its decision, the more one might question whether
the approved findings reflect the actual reasoning. On the other hand, the Commission's
role is not to serve as a rubber stamp for its staff's recommendations. If the Commission
affords a meaningful hearing to the parties before it and reaches conclusions significantly
different from those proposed by staff, a longer revision period may be necessary.
Ultimately, procedural objections to whether findings are sufficient must be decided on a
case-by-case basis, according to the standard spelled out by Topanga: Has the agency
revealed its actual, pre-decision reasoning in sufficient detail to allow judicial review? If
so, then from a procedural standpoint, the agency's findings are sufficient.

This rule does not mean that post-approval findings will always be acceptable. An
agency must reason first, and reach its decision second. Written findings may come
before or after, so long as they reflect the reasoning actually engaged in before the

26

decision has been reached. In Bam, Inc. v. Board of Police Comrs. (1992) 7 Cal.App.4th
1343 (Bam), for example, an agency-appointed hearing examiner prepared detailed
factual findings concerning an adult motion picture arcade's operations and
recommended that the agency deny a pending application to suspend the arcade's license.
After a hearing, the agency rejected the examiner's recommendation with "nary a word of
explanation." (Id. at p. 1348.) Revised findings were apparently prepared, but never
adopted. (Id. at p. 1349, fn. 4.) The court of appeal properly directed the trial court to
issue a writ of mandate vacating the license suspension and requiring the agency to issue
findings before it made a new decision. It did so because the record left it "at a loss to
understand why the Board did what it did." (Id. at p. 1346.)

This case resembles La Costa, not Bam. The record reveals why the Commission
acted as it did, and the revised findings adopted in December 2000 reflect the
Commission's actual reasoning, rather than a post-hoc rationalization. For all subjects
other than Street A, the revised findings mirror the proposed findings prepared before the
August 7, 2000, hearing. With respect to Street A, those commissioners voting to allow
Street A explained their reasoning at the August 7 hearing, citing its limited visibility and
the corresponding Project benefits, including the prevention of future bluff-face
development. The revised findings on Street A track these reasons. Consequently, the
record reveals the analytical route the Commission took in reaching its conclusions, in
accord with Topanga.
III.
The Commission's Decision Complies with CEQA

The Sierra Club contends that the Commission abused its discretion because it
approved permits for the Project rather than requiring the developer to pursue one or
more feasible alternatives that would reduce environmental impacts. We conclude that
the Commission complied with CEQA because substantial evidence supports the
Commission's determination that the Project, as approved, had no significant
environmental impacts.

27

The purpose of CEQA is to require government agencies to look before they leap
and consider the environmental consequences of their actions before taking those actions.
It "generally requires a state or local public agency to prepare an EIR [environmental
impact report] on any activity it undertakes or approves which may have a significant
effect on the environment." (Gentry v. City of Murrieta, supra, 36 Cal.App.4th at
p. 1371; see � 21151, subd. (a).) A significant effect is defined as " `a substantial, or
potentially substantial, adverse change in the environment.' " (Laurel Heights
Improvement Assn. v. Regents of University of California, supra, 6 Cal.4th at p. 1123,
quoting � 21068.)

Public Resources Code section 21080.5 exempts the Commission from preparing a
formal EIR. The statute provides that "in specified areas of activity, when an agency has
an approved regulatory program requiring information essentially duplicative of that
which would be included in an EIR, written documentation of compliance with such
regulatory program may be submitted in lieu of the EIR for the covered activity."
(Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture (1986) 187
Cal.App.3d 1575, 1584.) The Commission's coastal development permit program is such
an approved regulatory program. (Cal. Code Regs., tit. 14, � 15251, subd. (c).)

This exemption does not mean that the Commission may ignore significant
environmental impacts; the Commission must still comply with CEQA's "policy of
avoiding significant adverse effects on the environment where feasible." (Cal. Code
Regs., tit. 14, � 15250.) The statement of findings in the Commission's staff report,
which serves as a substitute for a formal EIR, must either show that there are no
significant environmental impacts or address alternatives or mitigation measures which
might reduce or eliminate those impacts. (Id. � 15252, subd. (b)(1) & (2).) A
development permit may not be approved "if there are feasible alternatives or feasible
mitigation measures available that would substantially lessen any significant adverse
effect that the activity may have on the environment." (Pub. Resources Code, � 21080.5,
subd. (d)(2)(A).)

28

CEQA gives an agency four ways of deciding that its requirements have been met.
First, an agency may determine that a project has no significant environmental impacts.
(� 21080, subd. (c).) Second, the agency may determine that mitigation measures are
sufficient to reduce any impacts to insignificance. (� 21081, subd. (a)(1).) Third, the
agency may determine that there are feasible alternatives that would eliminate all
significant impacts. (� 21081, subd. (a)(1).) Finally, even if significant impacts have not
been eliminated, the agency may determine that overriding benefits from a project
outweigh those impacts. (� 21081, subd. (b).)

Here, the Commission concluded that all significant impacts on views resulting
from construction of Street A would be mitigated by revegetation of the property, grading
of a ridge in front of Street A, and the purchase and retirement of development rights for
15 parcels on the bluff face. For the reasons discussed in part II.B., ante, this conclusion
was supported by substantial evidence. It also determined that there would be no
significant impacts on habitat. For the reasons discussed in part II.C, ante, that
determination also was supported by substantial evidence.

Because all significant impacts are to be mitigated, the Commission was not
required by CEQA to adopt potentially feasible alternatives. "CEQA does not require
that an agency select the alternative course most protective of the environmental status
quo." (San Franciscans Upholding the Downtown Plan v. City and County of San
Francisco (2002) 102 Cal.App.4th 656, 695.) Once the Commission determined that
various required features of the Project and agreed-upon mitigation would reduce
environmental impacts below the threshold significance level, it was not required to
evaluate or select an alternative that might have fewer de minimis effects. Consequently,
we need not address the correctness of the Commission's conclusions that a "No Street
A" alternative and a "more southerly Street A" alternative are infeasible.

The Sierra Club argues that the Commission waived this argument because one of
its attorneys, in response to a question during oral argument before the trial court, agreed
that "[i]f the City had found that a road outside of the coastal zone was a feasible
alternative and we approved the project with the road in the coastal zone, then, yes, I

29

think that would have been an incorrect decision." However, both before the trial court
and this court, the Commission has phrased its argument in the alternative: the
Commission satisfied CEQA either because all significant adverse environmental impacts
were mitigated, or because proposed alternatives were infeasible. The trial court's
questioning focused only on the second of these two alternative prongs, whether the
determination that proposed alternatives were infeasible was correct. As counsel
elsewhere explained when discussing the presence of significant impacts, "the
Commission or the public agency is only required to adopt an alternative if it would
substantially lessen any significant adverse effect. So this assumes that Street A has
significant adverse effects. And when the Commission looked at it, it determined that
they were not significant; that visually it did not have that much impact because there
was going to be landscaping, the way the topography is. It was hidden behind a ridge, et
cetera. [�] And then that, balanced with sort of the public benefits that the Commission
found from it, parking within the coastal zone, access to the Bluff Top Trail, that on [the]
whole it was not a significant adverse effect." The Commission did not waive the
separate argument that various features of the Project eliminated any significant
environmental impacts. Because the Commission's determination that the Project had no
significant environmental impacts is supported by substantial evidence, its approval of
the Project's development permits complied with CEQA.

DISPOSITION

The judgment is affirmed. The stay issued October 10, 2002, is dissolved.

_________________________
GEMELLO,
J.

We concur:
_________________________
STEVENS, ACTING P.J.
_________________________
SIMONS, J.

30

Trial Court:
San Francisco County Superior Court
Trial Judge:
Hon. James A. Robertson
Counsel for appellants:
Law Offices of Frank P. Angel
Frank P. Angel
Curtis M. Horton
Counsel for respondent California Coastal
Bill Lockyer, Attorney General
Commission:
J. Matthew Patterson, Senior Assistant
Attorney General
Jamee Jordan Patterson, Supervising
Deputy Attorney General
Hayley Peterson, Deputy Attorney General
Counsel for real party in interest and
Latham & Watkins
respondent Catellus Residential Group:
Robert D. Crockett
Kathryn M. Davis
James R. Repking

Sierra Club v. California Coastal Commission (A100194)

31