This memorandum summarizes the key issues in a lawsuit brought by an environmental activist group ("Activist Group") challenging a state agency's approval of a development permit. The Activist Group alleges the permit violated environmental laws. The memorandum analyzes the causes of action and whether they state valid legal claims. It also discusses the agency's notice requirements and whether the Activist Group satisfied administrative remedies before filing suit. The memorandum concludes the Activist Group likely lacks standing to sue and the second and third causes of action are demurable, but the first cause of action states a valid claim.

1. State of California
Memorandum
Department of Justice
Supervising Attorney
Office of the Attorney General
Public Rights Division
Land Law section
Tracie Groh
Land Law Section
Office of the Attorney General - Los Angeles
Carbon Canyon
FACTS
In the California Coastal Zone of the Santa Monica Mountains lies a 17-acre propertythat has been
designated as ESHA in Carbon Canyon. Activist Group, (“Activist Group”) an unincorporated
association, alleges that when the State Agency (“the State Agency”) approved a permit applicationfor
development on this property it violated various requirements of the California Coastal Act and the
California Environmental Quality Act. (“CEQA”) The hearing for the permit application was held in
Monterey, California on May 9, 2003. Members of Activist Group wrote a letter of opposition on the
project, whichwas faxed to the State Agencyoffice inVentura, California onMay8, 2003. Inaddition,a
member of Activist Group claims to have sent copies of the letter to the location of the hearing in
Monterey, which were to arrive the morning of the May 9, 2003, by overnight carrier. Activist Group
alleges that State Agencystafffailed to notifythe State Agencymembers about the oppositionletter prior
to the hearing and the State Agency’s subsequent approval of the permit. As a result of the State
Agency’s approval and Activist Group’ belief that the opposition letter was not properly considered,
Petitioner filed for a writ of mandate alleging three different causes of action.

2. CAUSES OF ACTION
The first cause of action alleges a violation of the California Coastal Act, Public Resources Code
Section 30000 et. seq. (Pet., p. 7.) This action claims the State Agency violated statutes requiring
protection of views along the ocean areas and sites designated ESHA. (Ibid., pp. 7 and 8.) There is also
mentionofalternative uses ofthe site, withsuggestions ofturningthe area into a recreationalpark or nature
preserve. (Id. at p. 8) Activist Group asks the court to issue a writ of mandate vacating any and all
approvals of the project. (Ibid.)
The second cause of action alleges a violationofCEQA, Public Resources Code Section21000 et.
seq. (Id. at p. 9.)This cause of action focuses on environmental review and once again considers
alternative measures. (Ibid.) Petitioner claims irreparable harmwillbe suffered ifthe project is approved.
(Id. at p. 10.) Petitioner alleges the State Agency is subject to CEQA and has violated it. (Ibid.)
The third cause of action further alleges a violation of the California Coastal Act by failure to follow
mandatorynotice and review requirements. (Ibid.) Activist Group purports that the State Agencyabused
its discretion bynot adheringto the statutoryrequirements ofnotice inthe CoastalAct. (Id. at pp. 10 and
11.) Petitioner maintains the State Agencyfailed to follow allegedlymandatoryrequirements ofnoticeand
failed to obtain a Los Angeles County Environmental Review Board approval for the project. (Id. at p.
11.)
DEMURRER
According to Section 12.8 in the California Administrative Mandamus, you may not use something
from the administrative record for a demurrer in a writ of mandate case. A court may onlyconsider the
contents of the petition and such additional matters as the court may judicially notice when ruling on a
demurrer. (Ibid.) The onlysituation, inwhichthe court mayconsider the administrative record, evenifthe
record has beenfiled withthe court, is ifit was expresslyincorporated byreference inthe petition. (Ibid.)

3. The section cites to case law in support and the following cases are attached to this memo for your
reference: Stanton v. Dumke (1966) Cal.2d 199 and Kleiner v. Garrison (1947) 82 Cal.App.2d 442.
The petitiondoes not appear to expressly incorporate anyofthe administrative record, therefore, wemay
not reference to it in our demurrer.
Additionally, we will not be able to demur to the first cause of action. Sufficient facts are alleged to
support a legal claim in the petition. “In ruling on the sufficiency of the petition for mandate as against a
demurrer, the court will assume to be true all material and issuable facts properly pleaded.” Stanton v.
Dumke Cal.2d 199 at 201. Because Activist Group has properly pleaded materialfacts the court must
assume they are true and allow the claim to go forward. However, we will be able to demur to the
second cause of action. Here the petitioner has referenced CEQA and a myriad of violations the State
Agency has allegedly committed. Activist Group is apparentlyunaware that California Public Resources
Code section21174 (CEQA) clearlystates “no provisionofthis divisionis a limitationor restrictiononthe
power or authority” of the State Agency. The section goes further to say “to the extent of any
inconsistency or conflict between the provision of the California Coastal Act of 1976 (Division 20
(commencing with Section 30000)) and the provisions of this division, the provisions of Division 20
(commencing with Section 30000) shall control.” Therefore, CEQA requirements are not applicableto
the State Agency, and there can not be any violations as such by the State Agency. Consequently,
Petitioner’s second cause of action fails to state a cause ofactionunder California CivilProcedure Code
section 430.10 (e), and as a result, we can successfully demur to it.
Moreover, we will also be able to demur to the third cause ofaction. Insection13106 ofTitle 14 in
the California Code of Regulations “anypersonwho did not have anopportunityto fullyparticipate inthe

4. original permit proceeding by reason of . . . failure to provide adequate public notice . . . may request
revocation of a permit by application to the executive director of the State Agency, specifying, with
particularity, the grounds for revocation.” This is anadministrative remedyofwhichActivist Group hasnot
sought, althoughtheir petitionalleges notice was insufficient. Section3.21 ofthe California Administrative
Mandamus states that “anagencydecisionthat is subject to further administrative review is not regardedas
final within the meaning of CCP § 1094.5(a).” Under the Code of Civil Procedure, section 1094.5(a),
onlya final agencydecisionmaybe reviewed bymandamus. Board of Med. Quality Assur. v. Superior
Court (1977) 73 Cal.App.3d 860. So, until Activist Group has requested a revocation of the permit
issued under section13106 ofTitle 14 whichis thendenied, Activist Group has failed to exhaust available
administrative remedies. (However, this sectiondoes not provide anysort oftime limit regardinghowlong
someone has to request a revocation.)
Finally, we may be able to demur, as to the entire petition, on the grounds that Activist Group lacks
standing to bringthe actionat all. There is a three part test to determine whether or not anunincorporated
association has standing to bring a suit, inwhichallprongs must be satisfied inorder for the associationto
sue. (Brotherhood of Teamsters and Auto Truck Drivers v. Unemployment Insurance Appeals
Board (1987) 190 Cal.App. 3d 1515, 1522.) This case mandates that anassociationcanobtainstanding
if: 1) its members would otherwise have standing to sue in their own right; 2) the interests it seeks to
protect are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief
requested requires the participation of the individual members in the lawsuit. (Ibid.) Because Activist
Group has not exhausted their administrative remedies, as discussed above, they fail the first element of

5. obtaining standing. Additionally, because Activist Group has not alleged anorganizationalpurpose, they
also fail the second element of obtaining standing. The third element is also unsatisfied because Activist
Group has not alleged that its participationinthis actionwilleliminate anyneed ofits individualmembersto
participate. Accordingly, Activist Group does not have standing to bring this action.
ISSUES ON THE MERITS
I. Preservation of Issues
The California Administrative Mandamus section3.3, prohibits a litigant fromraisingarguments inan
administrative mandamus proceeding that were not presented in the first instance to the administrative
agency or hearing officer. Specifically the sectionrequires a partyat anadministrative hearingto “raise all
issues that he or she will want to have judicially reviewed if an adverse decision is rendered.” (Ibid.)
Applied to the facts in this case, Activist Group failed to raise severalissues intheir letter to the State
Agency which were subsequently raised in their petition to the court. First, is the issue of notice in their
third cause ofaction. Inthe petitionActivist Group alleges the propertyowner and State Agencyfailed to
follow several notice requirements. However, in the letter to the State Agency, not only does Activist
Group fail to raise any problems withthe issue ofnotice, but it actually references the notice the members
received several times. It hardlyseems logicalthat theyreceived enoughnotice to build arguments based
on the information in the notice for a letter to the State Agency, yet, in the petition, the notice was not
sufficient.
Second, several times in the petition Activist Group allege that the coastal sage scrub and chaparral
habitat on the project site is ESHA. ESHA is never mentioned in their letter to the State Agency, much
less any specific reference to plant life at risk. In the fourth bulleted paragraph Petitioners claim to be

6. concerned about the effect ofthe gradingrequired. Theyask “How manytrees willbe felled? . . . Willthe
current rough country be turned into lawns?” This is the closest their letter ever gets to raisingthe issue of
the effect of the development on the plant life.
II. Notice
Section13054 ofTitle 14 inthe California Code ofRegulations addresses notice requirements
as they relate to the applicant’s duties. An applicant is to provide the State Agency with a list of the
addresses of all residences located within one hundred feet (not including roads) of the perimeter of the
parcel of real property on which the development is proposed. (Id. at (a).) Additionally, the applicant
must provide the names and addresses ofother interested persons knownto the applicant, includingthose
who testified at or submitted writtencomments for the localhearing. (Ibid.) Therefore, ifActivist Groupis
neither withinthe one hundred foot perimeter, nor amonganyone who testified at a localhearing, it appears
they were not entitled to this type of formal and personal notice. Because Activist Group fails to include
any individual members as parties to this action, this significantly impacts their argument of insufficient
notice in relation to whether or not notice was due to the association itself.
The section also provides that the applicant is to post, at a conspicuous place, where it canbe easily
read by the public and as close to the site of the proposed development as possible, notice that an
application for a permit has been submitted to the State Agency. (Id. at (d).) The notice should have a
general description of the nature of the proposed development and the State Agencyshould provide the
applicant with a standard form to be used for these purposes. (Ibid.) Further, the applicant must signthe
declaration of posting or the executive director “shall refuse” to file the application. (Ibid.) The State
Agency is required to revoke a permit if it determines that the permit was granted without proper notice.

7. (Id. at (e).)
There are two pages in the administrative record which indicate a list of names and addresses were
received by the State Agency from the applicant, however, there is no copy of list to reference. In
volumes one and six there are forms in which someone has indicated the applicant did provide this
information, however on a subsequent form the information is not present. Page three in volume one
shows the list as checked offa series ofitems to be gathered inorder for a complete application, however
the table in which the list is presumably to be located on page 13 is blank. Again, involume sixonpage
321 a document from the State Agency itself indicates the list was received bythe State AgencyonJuly
29, 2002. However, nowhere else inthe administrative record is the actual list found. Again, assuming
that notice was not required for Activist Group itself, this argument may be irrelevant.
Additionally, section13063, subdivision(a) ofTitle 14 inthe California Code ofRegulations requires
the executive director to mail written notice to, among others, all persons specified in the applicant’s
mailing list ten days prior to the application hearing. The notice is required to containallofthe following:
(1) The application’s assigned number, (2) The proposed locationand a descriptionofthe development,
(3) The date, time and place ofthe applicationhearing, (4) The generalprocedure for hearings and action
on applications, (5) That if a person wishes to testify, his or her testimonyshould be related to the issues
covered inthe CoastalAct and (6) A statement regardingthe procedure for issuingstaffreports. (Ibid.) I
was unable to find any reference to such notice in the administrative record.
III. Timing of Opposition
In section 13060 of Title 14 in the California Code of Regulations guidelines for written
communications regardingapplications are stated. Subdivision(b) requires anywrittencommunicationto

8. be received by the executive director in the appropriate district office prior to the dayofthe hearingor in
the hearing room on the day of the public hearing. (Ibid.) So, perhaps intheory, ifActivist Group didn’t
send their letter to the appropriate district office prior to the day of the hearing, then it wasn’t timely.
However, the statute is extremely vague regarding when the written communication is due inthe hearing
room on the day of the public hearing. This likely allows plenty of wiggle room for the Activist Group,
especiallyiftheyhave evidence the materialwas supposed to arrive by overnight carrier by10:30 a.m. the
day of the hearing.
IV. Interpretive Guidelines
Interpretive guidelines appear to carrysome weight incourt, however, it has beenestablished thatthey
are not bindingauthority. Yamaha Corporation of America v. State Board of Equalization (1998) 19
Cal.4th 1. (This case is also attached to this memo.) The court does allow for administrative
interpretations to “constitute a bodyofexperience and informed judgment to whichcourts and litigantsmay
properly resort for guidance.” (Id. at p. 14.) But, the court goes onto find that “the bindingpower ofan
agency’s interpretation of a statute or regulation is contextual.” (Id. at p. 7.)
So, while Activist Group may attempt to refer to the State Agency’s interpretive guidelines as hard
and fast rules, the court is not bound to follow them and may consider the factual context at issue in
determining how much deference such guidelines are due. (Id. at 14.)
V. General Observations Re: the Letter and Administrative Record
Although Activist Group has yet to appeal their case to the State Agency itself and exhaust their
administrative remedies, thereby making this petition ripe for judicial review, there are still a few things I
wanted to note for you generally. Beginning with their letter to the State Agency in their first attempt to

9. object to the project, first, inthe initialparagraphofthe members’ letter theysaythat their lack ofprompt
action on this matter was due to their own personal and professional matters. (I don’t refer to them as
Petitioners because they are not listed as such on the caption page of Activist Group’ complaint.) This
indicates anadmissionbythe members that theydid not act ina timelymanner. Second, there is some sort
ofreference to the view inevery bulleted paragraphoftheir arguments. The first bulleted paragraph: “. . .
this is an absolutely natural, pristine piece of property.” The second bulleted paragraph: “. . . it willturn
what is now a whollynaturalperspective toward the oceaninto just another residentialdevelopment.”The
third bulleted paragraph: “Obviously, this would be huge house that would dominate the vista . . . an
enormous man made mansion would be the first thing one would see from just about any perspective.”
The fourth bulleted paragraph: “We cannot even begin to visualize the devastating effect this scale of
grading would have on what is now a beautiful, wholly natural environment.” And, the fifth bulleted
paragraph: “. . . the developer has opted to build on what is by far the most intrusive spot on the
property.” Then, in closing, after admitting they are concerned about the view lines fromtheir property,
they claim that the previous points show there is more to their concernthanjust the view. It seems that a
closer examination of those previous points shows there isn’t much more to their concern. In the five
bulleted arguments there are only two references to the actual wildlife itself, and one reference to trees.
This letter looks to be little more thana poorlydisguised and poorlyplanned attempt to save the member’s
view. Only in the petition is any specific information offered regarding the environmental issues.
(Paragraph 32.)
Regardingthe petition, the bulk ofit centers around the State Agencyallegedlynot makingthe proper
considerations in its approval of the permit. Paragraph 34 insinuates the permit was approved merelyto

10. avoid a possible takings claim. However, an examination of the administrative record shows there are
simply no logical grounds for such claims. Page 250 of the administrative record addresses the ESHA
issues requiring the permit applicant to provide mitigationfor the impacts to the local wildlife, coastalsage
scrub and chaparral. Page 261 of the administrative record illustrates that while the State Agency is
required to consider a takings issue, it must be balanced together with the policies of the Coastal Act.
Additionally, Section E of the administrative record gets to the heart of what Activist Group is
unhappy about -- the impact of the development on the view. Here the record explains that while the
project site is located withina scenic viewshed area, anyalternative locationfor the project would “require
greater vegetation disturbance and landform alteration.” (AR at p. 266.) Therefore, it appears that in
order to protect the local plant and wild life the State Agency sacrificed the Petitioner’s view as a
necessarymitigationmeasure. (ARat p. 267.) Activist Group’ petitionlectures onthe preservationofthe
naturalbeautyofthe site, yet attacks the State Agencyfor the actions it takes to preserve that verybeauty.
The State Agency even took measures to mitigate the impact on the view, requiring certain colors and
glass to be used in the constructionofthe residence. (Ibid.) Ultimately, the State Agencyfound that “the
project, as conditioned, willnot result ina significant adverse impact to scenic public views or character of
the surrounding area.” (Ibid.)
Regarding Petitioner’s claims of other alternative uses for the property, the State Agency found the
“other allowable uses for the subject site, such as a recreational park or a nature preserve, are not
feasible and would not provide the owner an economic return on the investment.” (AR at 260.) And
while Activist Group claims the project could be sited at another location on the property, the
administrative records show that “the building pad location is the most feasible locationfor the proposed

11. residence in order to minimize landform alteration and habitat disturbance.” (AR at p. 259.)
Insum, anexaminationofthe administrative record, coupled withcloser reviews ofboththe letter and
the petition from Activist Group, reveals a case factually and argumentatively weak.