Metropolitan News-Enterprise


Thursday, July 24, 2003


Page 1


High Court to Consider West Bluffs Development Plan


By a MetNews Staff Writer


The state Supreme Court yesterday agreed to hear a challenge to the Coastal Commission’s approval of a controversial development plan in the Westchester-Playa del Rey area.

Justices voted 5-1 to review the First District Court of Appeal’s decision in Sierra Club v. California Coastal Commission (Catellus Residential Group) (2003) 107 Cal.App.4th 1030. Justice Marvin Baxter was the lone holdout, with Justice Janice Rogers Brown absent from the court’s weekly conference.

Among the issues to be considered by the high court is whether the commission was correct in declining to consider non-coastal zone impacts when it approved the issuance of a development permit for the parcel adjacent to the Ballona Wetlands. The Sierra Club and two other groups have been fighting development of the West Bluffs area for more than a decade.

Catellus Residential Group, which acquired the property after Magure Thomas Partners pulled out of the project several years ago, originally proposed a development of 119 single family homes on the 44.69-acre parcel. Environmentalists and nearby residents opposed the project, saying the land was unique and should remain open space, and the Coastal Commission denied a coastal development permit in 1999.

The developer then came back with a revised plan that reduced the number of homes to 114, eliminated coastal zone filling of Hastings Canyon, expanded the amount of revegetation of coastal scrub, and retired development rights in order to limit future development along the bluff face.

As with the original plan, residential development was confined to the bluff top, outside the coastal zone.

After the City of Los Angeles again completed an environmental impact report concluding that there would be no significant environmental impacts, the commission issued a coastal development permit in 2000.

The Sierra Club, Spirit of the Sage Council, and Ballona Ecosystem Education Project—also known as B.E.E.P.—challenged the permit in San Francisco Superior Court. Judge James Robertson denied the groups’ petition for writ of administrative mandate, saying the decision complied with the Coastal Act of 1976.

The Court of Appeal’s Div. Five agreed in an opinion by Justice Linda Gemello.

The justice rejected the contention that the plan violates the act’s requirement that environmentally sensitive habitat areas, or ESHAs, be protected. There was substantial evidence before the commission that the project area is not an ESHA, Gemello said.

The act defines an ESHA as “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.”

Previous studies, Gemello noted, found that there was only one significant plant species on the site, Diegian sage scrub, and that the area was of limited habitat value. Those findings were consistent with expert testimony before the commission, which was not required to adopt the contrary viewpoint of the challengers’ expert, the justice said.

The jurist went on to say that the commission correctly ruled that it lacked jurisdiction to consider the impact of the project on adjacent ESHAs that are outside the coastal zone.

A 1978 amendment to the act, Gemello noted, clarified that the act does not authorize the denial of a permit “on the grounds the proposed development within the coastal zone will have an adverse environmental effect outside the coastal zone.”

The effect of the amendment, the justice explained, was to reject an informal attorney general’s opinion letter informing the commission that it could exercise jurisdiction over the entirety of a project that partially overlapped the coastal zone.

In other action at yesterday’s conference, the justices:

•Agreed, with Baxter’s the only negative vote, to decide whether individual officials of a corporate employer may be held liable for knowing and willful violations of state wage and hour laws. Div. Two of this district’s Court of Appeal held in Reynolds v. Bement (2003) 107 Cal.App.4th 738 that only the corporation can be held liable.

The suit was brought by employees of the Earl Scheib auto painting companies, who allege in a proposed class action that managers and assistant managers were wrongfully classified as exempt from overtime pay requirements. They also claim they were improperly docked for returned checks and other business losses, and that the company attempted to justify the deductions by requiring them to sign preprinted forms admitting to willful misconduct.

The Court of Appeal ruled that individual corporate officers who knowingly violate wage and hour laws are subject to criminal and civil penalties, but not to liability in a private action.

The Davis administration and a number of labor organizations urged the high court to take the case, while the California Employment Law Council backed Earl Scheib.

•Depublished the ruling of the Third District Court of Appeal in People v. Spence (2003) 107 Cal.App.4th 1131. The panel had held that a probation search of the defendant’s residence for drugs was unreasonable under the Fourth Amendment, because the search clause of the probation order authorized only searches “for stolen property,î and that the good-faith exception to the exclusionary rule did not apply.

The high court had sent the case back to the Third District for review in light of a ruling last year dealing with the applicability of the good-faith exception to a putative parole search, based on erroneous information suggesting the subject was on parole. But the Court of Appeal held for the second time that the search was unlawful, and the Supreme Court unanimously decided to allow that ruling to stand but eliminate its value as precedent.


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