Filed 11/15/ 21 ; Certified for Publication 12/1 4 /21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DIST RICT

FRIENDS, ARTISTS AND NEIGHBORS OF ELKHORN SLOUGH et al.,

Plaintiff s and Appellant s ,

v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent;

HERITAGE /WESTERN COMMUNITIES, LTD , et al. , Real Part ies in Interest and Respondent s

. H0 4 8088 , H048409 ( Monterey County Super. Ct. No. 18 CV 001000 )

I. INTRODUC TION Respondents Heritage/Western Communities, Ltd and Heritage Development Corporation (collectively , Heritage) sought to develop property in Monterey County. Heritage obtain ed the requisite government approvals, including a coastal development permit, from Monterey County. Appellant Friends, Artists and Neighbors of Elkhorn Slough (FANS) filed an appeal with respondent California Coastal Commission (Coastal Commission) rega rding Monterey C ounty’s approval of the coastal development permit . C oastal C o mmission staff prepared a report recommending denial of Heritage’s coastal development permit2 application primarily due to the lack of adequate water supply

. At a public hearin g on November 8, 2017 , t he Coastal Commission expressed disagree ment with staff ’s recommendation and approved Heritage’s permit application. Commission staff thereafter prepared written revised findings to support the commission’s action, and th ose revise d findings were later adopted by the commission on September 13, 2018

. Appel lants FANS and LandWatch Monterey County (LandWatch) filed a petition
for writ of mandate in the trial court, contending that the Coastal Commission’s approval
of the coastal de velopment permit to Heritage violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) 1 and the California Coastal Act of 1976 (Coastal Act; § 30000 et seq.) . The court denied the petition and entered judgment against FANS and LandWatch

. On appeal, FANS and LandWatch contend that the trial cou rt erred in denying the petition for writ of mandate and the Coastal Commission’s approval of Heritage’s coastal development permit should be set aside, because the Coastal C omm ission fail ed to complete the requisite environmental review before approving H eritage’s permi t application

. For reasons that we will explain , we determine that the Coastal Commission’s environmental review was incomplete at the time it approved Heritage ’s coastal development permit application on November 8, 2017

. T his failure to complete the requi site environmental review before approving the application requires that the approval be vacated. We will therefore reverse the judgment and direct the trial court (1) to vacate its decision denying the petition for writ of mandate, (2) to enter a new judgment granting the petition against the commission, and (3) to issue a writ of mandate directing the commission to vacate its approval of the coastal developm ent permit.

1 All further statutory references are to the Public Resources Code unless otherwise indicated

.3 I I. OVERVIEW: COASTAL DEVELOPMENT PERMIT S
“The Coastal 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 z one is a distinct and valuable natural resource of vital and enduring interest to all the people ” ; that “ the pe rmanent protection of the state’ s natural and scenic resources is a paramount concern ” ; that “ it is necessary to protect the ecological balance o f 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

. . . .” [Citation.] ’ [Citation.] The Coastal Act is to be ‘ liberally construed to

ac complish its purposes and objectives. ’ [Citation.] ” ( Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 793

- 794 ( Pacific Palisades ) .)
Th e Coastal Act “ requires local governments to develop local coastal programs,

co mprised of a land use plan and a set of implementing ordinances designed to promote
the act ’ s objectives of protecting the coastline and its resources and of maximizing public

a ccess. [ C itation s .] Once the California Coastal Commission certifies a local government ’ s program, and all implementing actions become effective, the commission delegates authority over coastal development permits to the local government. [Citations.] ” ( Pacific Palisades , supra , 55 Cal.4th at p. 794.) In this case, t he record

re flects that Monterey County ’s local coastal program (LCP) was certified in 1988

. The Coastal Act generally requires that a coastal development permit be obtained
for “ any deve lopment in the coastal zone ” in addition to obtaining any other permit required by law . ( § 30600, subd. (a); see Pacific Palisades , supra , 55 Cal.4th at p. 794.) A local government’s action on a coastal development permit application may be appealed to t he Coastal Commission

. ( See § 30603 , subd. (a) ; Pacific Palisades , supra , at p

. 7 94 .) If the Coastal Commission on appeal “ finds that the proposed development is4 in conformity wi th the certified local coastal program ,” a coastal development permit
must b e issued . (§ 30604, subd. (b).)
III. FACTUAL AND PROCEDURAL BACKGROUND
A. Monte rey County’s Approval of Coastal Development Permit
I n August 2000, Heritage/Western Communities, Ltd applied for a combined development permit , including a coastal development permit, from Monterey County for
the “ Rancho Los Robles Subdivision

. ” The pro posed project was located in the northern part of the county and initially included more than 100 residential units and a commercial parcel

. Monterey County prepared an environ mental impact report (EIR) for the project.
The EIR contained several alternat ives to the project, including a n alternative that
reduc ed the number of residential units. In October 2008, the Monterey County Pl anning C ommission recommended denying the pr oject due to water supply and traffic congestion issues and because the project ’s benefits would not outweigh the environmental effects

. The planning
commission’s decision was appealed to the county board of supervisors

. In December 2008, the Monterey County B oard of S upervisors disagreed with the planning commission’s recommenda tion. The board of supervisors approved a combined development permit (which included a coastal development permit) with 102 conditions
for a staff

- proposed, reduced density al ternative to the project, which included only 80
residential units. 2 The board of supervisors also certified the EIR and adopted a

2 The reduced project, as approved by the county, provided for the following: (1) the division of two parcels (33.58 acres total) into 76 lots, consisting of 68 single

family residential parcels, four duplex lot s, a 1.76

- acre mixed

- use parcel, and 9.7 acres of common area parcel which incl uded a 2.5

- acre community recreation area with a small parking lot and two 0.5

- acre miniparks; (2) the development of a commercial parcel and the construction of a four

- unit apa rtment building above the commercial space; (3) the removal of up to 25 coastal oak trees and on

- site relocation of 0.1

- acre of willow trees; (4) the demolition of two single

- family dwellings, two barns, and a garage, and the removal of two mobilehomes ; an d (5) the development on slopes greater than 25 percent.5 statement of overriding considerations regarding significant and unavoidable traffic impacts on State Route 1 and on regiona l groundwater and seawater intrusion

. B. Appeal by FANS to the Coastal Commission In 2009, FANS 3 filed an appeal with the Coastal Commission regarding the county’s approval of the coastal development permit

. 4 A second appeal was filed by two
commissioners from the Coastal Commission. 5
In 2011 , Coastal Commission staff asked Heritag e whether it intended to continue pursuing the development

. Commission staff indicated that they would be recommending denial of a coastal development permit for the project du e to the project’s
inconsistencies with the LCP, including regarding water supp ly and potential adverse impacts to environmentally sensitive habitat areas (ESHA). 6 In 2015, Heritage Western Communities, Ltd

. indicated that it was still interested in purs uing the project , and that i t was revising the project in an attempt to address the
issues raised

. Coastal Commission staff subsequently met with Heritage several times to discuss project issues. By mid

- 2017, Heritage had modified the proposed project ,

3 FANS describes itse lf as “an association of citizens committed to preserving and enhancing the Elkhorn Slough and its watershed through public education, citizen activism and advocacy.”

4 A Coa stal Commission staff report noted that the county’s approval of the project wa s appealable to the Coastal Commissio n because , among other reasons, the proposed development was located within 100 feet of a wetland. (See § 30603 , subd. (a)(2).)

5 An app eal to the Coastal Commission may be filed by an applicant , an aggrieved person , or any two members of the c ommission

. ( § 30625 , subd. (a).)

6 “ ESHA

. . . are ‘ rare or especially valuable ’ habitat areas in the coastal zone, given enhanced protection by the Coastal Act. [Citation.] ” ( Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 936 .)6 i ncluding by : (1) reduc ing the number of residential units from 80 to 5 4 , (2) d edicat ing land for future parks and other facilities, and (3) eliminat ing the commercial space. 7
T he Coastal Commission determined that the appeals raised a substantial issue , and the matter was set for a de novo hearing

. (See § 306 25 , subd. (b)( 2 ).)
1

. Coastal Commission’s De Novo Review and Approval of Permit Application

a. 2017 s taff report recommending denial of coastal development permit In October 2017, Coastal Commission staff issued a report (hereafter 2017 staff report) that recommended denial of the coastal development permit for the project on de novo review by the commission

. Commission staff described the project as being

“ located in the unincorporated co mmunity of Las Lomas in North Monterey County. Las Lomas is a small, rural, mo stly residential community surrounded by North Monterey County’s characteristic rolling hills consisting of open space, agriculture, and very low

density residential development . The project site consists of sloping hills containing
16.5 acres of oak wood land habitat and 11 acres of strawberry row

- crop agricultural production.”

7 The modified project included 50 single

- family residences and four units in duplexes. T wo of the single

- family residences would be reserved as “ Workforce Housing for families earning up to 180% of Monterey County media n income, ” and the duplexes would be designated as affordable rental homes. Heritage would pay the county
a n “ affordable housing in

- lieu fee ” to satisfy remaining affordable ho using requirements. In addition, 3.5 acres of la n d would be dedicated to the c ounty for public park and recreation improvements. Also, approximately 17 acres of land would be dedicated to a to

- be

- formed c ommunity s ervice d istrict. Specific community fac ilities would be identified and built subject to the c ommunity s ervice d istrict securing funding and separate approval by the c ommunity s ervice d istrict in the future. T he proposed commercial space was eliminated from the project

. The revised project als o included the demolition of one single

- family residence and two barns, the rem oval of two mobilehome s, and the construction of roads and related improvements.7 Commission staff indicated that the primary reason for the denial was the lack of adequate water sup ply

. T he project was “inconsistent with the LCP’s water supply and priority la nd use policies,” “because the project proposes to convert existing high

- priority agricultural uses to allow for the construction of a low

- priority 54

- unit residential
subdivisi on within a groundwater basin that is severely overdrafted.” “When such a
comb ination results,” that is, a residential subdivision which is “a low

- LCP

- priority use” in an area “with known water supply deficiencies,” “the LCP affirmatively requires the

pro posed development to be denied.” Commission staff indicated that the project m ust be denied under these policies even if the proposed project would result , as argued by Heritage, in “a ‘no

- net increase’ use of water , . . . including through proposed water offsets and retrofits to make the project ‘water neutral.’ ” Significantly, c ommission staff indicated that even if the project was consistent with the LCP regarding water supply, then the commission would still need additional
information or documenta tion, such as project modifications and design alternatives, from Heritage addr essing issues pertaining to (1) oak woodland, 8 (2) water quality, (3) visual resources and community character, (4) agricultural areas, and (5) traffic. However, because commis sion staff w as recommending “independently denying the project based on the lac k of an adequate water supply,” commission staff indicated that additional information or documentation regarding these other issues was “not warranted
at this time , ” and that a ny additional analysis, modification, or alternatives with respect to
these oth er issues was rendered “moot.”
Commission staff observed that the Coastal Commission was required to determine whether the coastal development permit application was consisten t with CEQA. To that end, commission staff stated that “the proposed project w ould have

8 Regarding oak woodland on a portion of the project site, commission staff determined that suc h oak woodland was an ESHA, and that the proposal to subdivide this area into r esidential lots was “not allowed within this habitat.”8 significant adverse effects on the environment” as detailed in the report’s findings. “[T]o avoid the significant effects on coastal resources,” denial of the project was necessary. Commission staff concluded that, by denying the project, CEQA and its requirements did not apply to the project. (See Cal. Code Regs., tit. 14, §§ 15042, 15270 , subd. (a).) 9 Heritage subsequently sent a letter dated November 7, 2017, to the Coastal
Commission

. The letter was more than 40 pages long and had over 40 0 pages of exhibits. Among other arguments in the letter, Heritage contended that the project was “water positive and will generate no net draw on the aquifer,” and therefore t he project “cannot
cause water to be extracted at a level that exceeds its LCP

- required safe yield amount.” Heritage argued that if commission staff’s “water related recommendations” were adopted, it would “result in a de facto moratorium” on development. Heritage also contended that commission staff had incorrectly interpreted LCP policies to require “complete avoidance of oak woodlands and a buffer around the entire habitat. ” Heritage contended that the policies instead allowed for oak tree removal and development within
oak woodland s

. Heritage further argued that the conditions included with the county’s approval of the project , along with additional special conditions proposed by Heritage , provided sufficient mitigation measures. In response to Her itage’s letter, commission staff issued an addendum dated November 7, 2017, to the staff report

. The addendum reiterated that “it is not enough to have a ‘water neutral’ (or even ‘water positive’) project; rather the groundwater resource itself is require d to be in a safe, long

- term yield condition to be able to support new
resident ial subdivisions in North Monterey County. The LCP simply does not allow approval of residential subdivisions when the basin is in its current state of severe
overdraft.” Rega rding oak woodland, the addendum reiterated that the LCP designated

9 All further undesignated references to regulations are to title 14 of the California Code of Regulations (Regulations ).9 oak woodlan d as ESHA, and that subdivisions were not allowed within ESHA even if
oak tree removal was minimized

. Finally, the addendum reiterated that “while many of the project’s LCP con formance issues could be addressed by project modifications, including with res pect to avoidance of residential subdivision and development within oak woodland ESHA, on prime/productive agricultural soils, and along the ridgeline (albeit with what would mo st likely be a substantially reduced project size), such
modifications are moot because the project is and would remain inconsistent with the LCP’s water supply, groundwater resources, and priority land use policies and
standards.”
b. 2017 Coastal Comm ission de novo hearing
On November 8, 2017, the Coastal Commission held a publ ic hearing in connection with its de novo review of Heritage’s application for a coastal development permit

. At the hearing, c ommission staff made a presentation and recommende d denial
of the permit application. Commission staff emphasiz ed that the proje ct consisted of a “large, suburban

- style residential subdivision in a predominantly rural agricultural area with severe water supply deficiencies and on land comprised of oak wo odland ESHA and productive agricultural soils.” Heritage made a presentation r ecommending approval of the project, contending that its water balance study showed the project would be “water positive ”; that the property was designated medium

- density reside ntial , not agricultural for crop farming; that development was allowed on oak w oodlands; and that the project
was otherwise consistent with the LCP. FANS argued against the project, contending that the project was inconsistent with the LCP as described in the report by commission
staff , and that there were flaws in Heritage’s water balance study

. Other speakers at the hearing includ ed Land W atch 10 which opposed the project, and a Monterey C ounty

10 LandWatch describes itself as nonprofit public benefit corporation with t he following purpose s: “to promote sound land use planning and legislation at the city, County, and regional levels, to combat urban sprawl, and to promote livability in the10 employee who had been involved in the county’s review of the p roject and who expressed “a different perspective” than commission staff regard ing water supply, ESHA, and agriculture

. The Coastal C ommissioner s primarily asked staff about water supply and ESHA
issues

. One of the commissioners expressed disagreement with the staff report regarding whether the relevant policies imposed a “morato rium” on residential development based on the condition of the aquifer, and indicated that he believed the proposed project could be approved based on evidence in the record tha t the project would not have the requisite impact on the aquifer

. The commissi oner also expressed a belief that the policy regarding ESHA and oak woodlands did not contain a “blanket prohibition” on development, and that Heritage’s , not commission staff’s , interpretation of the policy appeared to be correct. Another commissioner re ferred to the needs of “disadvantaged unincorporated communities” and indicated that the developer for this project was “very willing” to provide various amenities, including “b uild a park, fix the streets, [and] do some lighting,” for the community.
At the conclusion of the hearing, the Coastal Commission voted seven to five in favor of approving Heritage’s coastal development permit application.
2. Coastal Commission’s Revi sed Findings

a. 2018 s taff report regarding revised findings In August 2018 , Coastal Commission staff issued a report (hereafter 2018 staff report) containing revised findings in support of the commission’s approval of Heritage’s

re gion’s cities and towns, through public policy development, advocacy, and educa tion,” and “ to preserv [e] economic vitality, high agricultural productivity, and environmental health in Monterey County by encouraging effective public participation in the lan d use planning process.”11 coastal development pe rmit

. 11 Whereas the prior staff report recommended denial of the permit primari ly due to the lack of adequate water supply, th e 2018 staff report determined that water supply was no longer an issue that necessitated denial of the project, and that other LC P policies supported approval of the project. Regarding water , commission sta ff acknowledged that, “in order to both protect groundwater resources and to ensure that scarce water supply remains available for priority uses,” “ the LCP d oes not allow certai n development .” However, “[t] he LCP also includes policies identifying the nee d for affordable housing and other community goods in Las Lomas, specifically identifying Las Lomas as one of only three areas in the entire North County area appropriate for su ch growth given natural resource and public service capacity constraints. In a ddition, the County also has argued that the LCP ’ s water supply and groundwater resources policies should not be read as prohibiting all development in
all cases when an overdra ft condition exists, but rather that certain limited projects that provide need ed (and LCP envisioned) community goods that are undertaken in a manner that will not adversely impact the underlying groundwater basin (i.e., will not generate a
water demand e xceeding or adversely impacting the safe, long

- term yield of the local aquifer) can be found consistent with the LCP ’ s overall framework. The Commission in this case agreed based on the specific facts presented. Specifically, because this project
include d on

- site low and moderate income housing (as well as an in

- lieu fee for
additi onal off

- site affordable housing), parks, and infrastructure improvements within the Las Lomas urban services line called out by the LCP for allowable growth, and because
the [H eritage’s] project

- specific water balance study found the project to have a net

11 By this time , as we set forth below, FANS and LandW atch had f iled their December 7, 2017 petition for writ of mandate in the trial court , challenging the Coastal Commission’s a pproval of Heritage’s project.12 positive effect on the groundwater basin, [ 12 ] the Commission found that the project meets
these LCP goals and requirements. Relying on

. . . groundwater recharge conclusions [f

rom Heritage’s water balance study] , the Commission found the project to be sup plied by a long

- term adequate water supply that would not negatively impact the underlying aquifer. These factors

— the project ’ s proposed community investments (affordable
housi ng, parks, open space, and infrastructure improvements), within a community the
LCP explicitly identifies as appropriate for such investment, and positive groundwater recharge are what differentiate it with other proposed North County residential
subdivisi on projects the Commission has denied. Those projects were located outside of Las Lomas, did not provide the type of community goods proposed here (i.e., they were strictly residential subdivisions), and did not demonstrate positive (or even neutral)

grou ndwater recharge. As such, the project ’ s factset here is unique and specific d ue to what is being proposed and where, and the Commission approved this project as
consistent with the relevant LCP policies considering these specific facts and
circumstances. ”

12 Commission staff indicated that Heritage’s water balance report showed that the project would be “water positive

. ” Specifically, “with proposed stormwater improvements, groundwater infiltration, and water recycling, the project would actually result in a positive groundwa ter recharge of 7.61 [ acre
- feet per year ] (i.e., 7.61 [ acre
- feet per year ] more water would infiltrate the groundwater basin than the development will consume from the basin, based on

. . . water usage of 18.21 [ acre
- feet per year ] and infiltration of 25.8 2 [ acre
- feet per year ]

. . . . [T] he project will have a net positive effect
o n groundwater supplies. ” Further, “ additional recharge associated with the project is expected to improve groundwater health. ” Commission staff also explained that Heritage’s water balance report indicated that the proposed project’s estimated use of 18. 21 acre

- feet per year of water was “slightly less than the current estimated water usage of 23.7 [ acre
- feet per year ] , and further indicates that the project would result in a n et benefit to the aquifer even if the existing water use at the site is not tak en into account

. Thus, based on the Water Balance Report’s findings that the project will improve groundwater aquifer health relative to the project’s water usage, the Commissi on found that the project can be served by a long term, adequate water supply. ” (Fn. omitted.)13 The staff report also addressed the other issues that had been identified a s the basis
for commission staff’s earlier recommendation to deny approval of the permit application. For example, r egarding oak woodland, the staff report explained that “the project minimized disruption and habitat loss, and also included both oak woodl and restoration and preservation via dedication.” 13 Regarding agricultural use, the staff report indicated that the LCP had designated the site for concentrated development, not agricultural use, and that the site was zoned for medium

- density residential u se. Further, “[t]h e C ommission also found the proposed project consistent with other LCP requirements, including with respect to water quality, visual resources, and traffic.” The staff report indicated that project approval was based on certain project parameters relating to road improvements, residential siting and design features , water quality protection measures , and water use audits . Further, the county’s earlier conditi ons of approval would also apply to the project, and those conditions were to b e “adjusted where necessary” and “implemented in a manner consistent with” the parameters of the project as approved by the Coastal Commission. Regarding the coastal developm ent permit application’s consistency with CEQA,
commission staff observed that CEQA prohibit ed project approval if there we re feasible alternatives or feasible mitigation measures that would substantially lessen any significant adverse effect the project m ay have on the environment ( § 21080.5,
subd. (d)(2)(A)). Commission staff stat e d that “ the project as proposed appropriately addresses any potential adverse impacts to . . . coastal resources,” and that “the proposed

13 Regarding the approximately 17 acres of land that would be dedicated to a to

be

- formed community services district o r other appropriate public entity , commi ssion staff explained that the land was for “ recreation and for habitat preserv ation for the remaining undeveloped oak woodland, wetland, and willow habitat areas. [Heritage] would undertake the restoration of these habitat areas and then dedicate the lan d . . . , but the additional specific community facilities would be identified and built subject to the [community services district] securing funding and separate

. . . approval in the future. ”14 project avoids significant adverse eff ects on the environment within the meaning of CEQA. As such, there are no addi tional feasible alternatives or feasible mitigation
measures available which would substantially lessen any significant adverse
environmental effects . . . .”
b. 2018 Coast al Commission hearing regarding revised findings On September 13, 2018, the Co astal Commission held a public hearing to consider revised findings to support the commission’s earlier November 8, 2017 approval of Heritage’s coastal development permit applic ation. At the hearing, Heritage requested
that the commission make modificatio ns to commission staff’s proposed revised findings. Heritage’s proposed modifications, including regarding water, oak woodlands /ESHA , and traffic, were set forth in a September 7, 2018 letter from Heritage to the c ommission. Heritage contended that its p roposed modifications “better reflect[ed]” the commission’s
earlier approval of the permit application

. At the public hearing, Heritage also contended that its project, as prop osed to the commission, “always included” the county’s 102 conditions of approv al , and that commission staff had incorporated certain specifics from those conditions into the description of the project that was contained in the staff report

. At the heari ng, c ommission staff expressed disagreement with the modifications proposed by Heritage. Staff indicated that the proposed revised findings by staff reflected “what was presented to the Commission in November,” and that staff had “tried
to be as accurate as possible in that regard.” S taff explained that “the commission was presente d with . . . a project that would use that amount of water, and because it was using that amount of water, it would have this net positive per [Heritage’s] calculations and [its ] water report. And that’s what we have reflected in the project description a nd also reflected throughout the revised findings in the report.” One commissioner responded , “I don’t know that we drew to a specific standard, we simply said in the aggregate , if it’s neutral or positive, then we can find consistency with the LCP provis ion.” Commission staff agreed that “that was the discussion,” but that staff was15 “trying to reflect what we thought [Heritage] was bringing forward in terms of the project

. . . .” Of the seven commissioners who originally voted in favor of the permit application, three were present at the hearing regarding revised findings. One of those
three commissioners remarked: “ [W]e find ourselves in a situation wher e the interests, generally speaking, of the Commission in terms of the permit itself and that of [Heritage] should be somewhat aligned. So it is in the interest of [Heritage] to strengthen our findings from their perspective, not to weaken them. [¶] It ’ s also in the int erest of the Commission to have the most defensible findings possible here in t he interest of [Heritage] and the Commission should be aligned because the Commission granted the permit. We granted the application. [¶] . . . [P] r ocedurally we neglected t o notice that
we needed to also mention in our motion that we should incorporat e all of the recommended conditions at the time of the hearing. But as [Heritage] points out, based upon the Commission ’ s action, I believe they are inclusive of the County con ditions of approval. ” The commissioner later stated, “I think that generally t he staff’s revised findings accurately reflect the hearing, but I also think that I have no objection to the suggested modifications made by [Heritage] because I think they also in most cases

-- they strengthen and broaden and add to the findings that were made by the majority at that hearing. And so I would personally have no objection to incorporating that.” A
second commissioner who had voted in favor the of the permit state d, “[Heritage’s] revised findings do adequately reflect what my thought process was and why I voted the way I did.” The third commissioner who had voted in favor of the permit stated, “I agree with my colleagues

. . . that the revised findings reflect wha t my thought process was that day as well.”
Those three commissioners , who we re the only commissioners present who were eligible to vote on the revised findings , voted in favor of the staff’s proposed revised findings , as modified by Heritage

.16 After ho lding the public hearing , the Coastal Commission issued its final adopted
findi ngs , which w ere based on the 2018 staff report and the modifications requested by Heritage. The final adopted findings included a statement by the commission that it
“found the project consistent with the LCP . . . .”
The Coastal Commission issued the c oastal development permit for the project on September 18, 2018. The permit indicates that it “was approved by the California Coastal Commission on November 8, 2017,” which was the date of the de novo hearing.
C. FANS and LandWatch ’s Petition for a Writ of Mandate
In the meantime, on December 7, 2017, after the Coastal Commission had approved Heritage’s coastal development permit application but before the 2018 staff report was p repared or the commission held its hearing on revised findings, FANS and
LandWa tch (collectively , FANS) filed a petition for writ of mandate in the trial court , 14 challenging (1) the decision by the Coastal Commission to approve the permit application and ( 2) the decision by Monterey County 15 to certif y the EIR and approv e the project. In the petition, Heritage/Western Communities, Ltd and Heritage Development Corporation were identified as real parties in interest. The petition alleged the following three causes of action: (1) the Coastal
Commission violated the Coastal Act , (2) th e Coastal C ommission and Monterey C ounty violated CEQA , and (3) Monterey C ounty violated planning and zoning requirements

. Based on the alleged violations, FANS sought (1) a pe remptory writ of mandate directing the Coastal Commission and Monterey County t o set aside their approvals of the project
and to comply with the requirements of CEQA , the Coastal Act, and/or planning and

14 The petition was originally filed in Alameda County Super ior Court. Heritage and Monterey County filed a motion for change of venue. T he motion was granted, and the matter was transferred to Monterey County Superior Court.

15 Monterey County is not a party to this appeal.17 zoning provisions , and (2) injunctive relief prevent ing the commission, the county, and Heritage from proceeding with development o f the project pending such compliance. The Coastal Commission and Heritage each answered the petition.
D. Monterey County’s Demurrer and Dismissal from the Action Monterey Cou nty filed a demurrer to the two causes of action alleged against it

— the second cause of action for violation of CEQA and the third cause of action for violation of planning and zoning provisions . Heritage joined the county’s demurrer. The county and Heri tage contended that the Coastal Commission “assumed exclusive jurisdiction over the project application,” and that the commission’s de novo review and subsequent approval of the project “superseded the [c]ounty’s decision by operation of law.” Thus, the c ounty’s “certification of an EIR under CEQA and approval of the project” were “ no longer a proper subject for judicial review.” FANS and the Coastal
Commission opposed the demurrer, each contending that the c ommission did not have jurisdiction over the en tirety of the project, and that the commission’s jurisdiction was
limited to th e coastal development permit.
The trial court concluded that Monterey C ounty’s approval of the project , including subdivision approval and certification of the EIR, was super seded by the Coastal Commission’s de novo review, and thus the county’s decisio ns were no longer
the proper subjects for judicial review. The court sustained the demurrer s to the second and third causes of action against the county without leave to amend

. A judgment of dismissal was entered in favor of the county o n A pril 2, 2019

. E. Denial of Petition for Writ of Mandate
FANS filed an opening brief in support of the petition for writ of mandate regarding the remaining causes of action against the Coastal Commission

. FANS argued that the petition should be granted because the Coast al Commission failed to proceed in a manner required by law. Specifically, (1) the Coastal Commission violated CEQA by failing to conduct the requisite environmental review and make the requisite findings18 before approving the project, and (2) the commissi on’s post

- approval findings failed to state a valid basis for approving the project and constituted improper post hoc
rationalizations

. Both the Coastal Commission and Heritage filed opposition to the writ petition.
After a hearing on the petition , the trial court filed a statement of decision denying the petition for writ of mandate

. In the statement of decision, the court made the following determinations. First, the tri al court disagreed with FANS’s contention that the Coastal
Commission violated CEQA by approving the project without environmental review and prior to mak ing findings. The court determined that the 2017 staff report demonstrated
that the Coastal Commissio n engaged in environmental review before approving the project. The court obse rved that the 2017 staff report included “ around 30 pages of discussion and analyses of the [p] roject’s potential environmental impacts,” including regarding water supply, water quality, ESHA, and agriculture. The court determined that, although the commi ssion “ultimately took an action different than that recommended in the staff report and later adopted revised findings consistent with that decision . . . , this
fact does not mean [the commission] failed to conduct any environmental review in the
first i nstance.” The court also noted that “the change of direction taken by the Commission was not ultimately predicated on new and different evidence relating to the Project’s envir onmental impacts but a different view of how the LCP policies should be interpr eted relative to the evidence that had already been considered.” Second, the trial court rejected FANS’s contention that the Coastal Commission
failed to state a valid basis f or approving the project and that the commission’s revised findings constituted improper post hoc rationalizations. In making this determination, the court found that there was “a lack of clarity” and inadequate analysis regarding portions of FANS’s argum ent, and for that reason, the court “construe[d] [ FANS’s ] challenge as being di rected solely towards the adequacy of the statements made by the commissioners19 at the de novo hearing.” Turning to the merits of the challenge, the court stated: “Taking toget her the requirement that environmental review precede project approval and the requirement that adopted findings ultimately bridge the analytic gap between evidence
and the agency ’s decision to approve or deny a project, the Court acknowledges the
tension that could arise when the Commission utilizes the procedure it employed here
wh ere it adopts revised findings after the hearing to support its decision to approve a project. ” The court found, however, the procedure was authorized by Regulations,
section 1 3096. The court further concluded that “the commissioners stated the basis for their [p]roject approval in sufficient detail at the November 8, 2017 de novo hearing,”
such that the later prepared revised findings did not constitute improper post hoc
ratio nalizations. In particular, the court found that th e commission’s final writte n revised
f

indings regarding (1) water supply and (2) oak woodlands and ESHA were consistent with oral statements made by the commission at the de novo hearing before the
commis sion voted to approve the project.
In March 2020, FANS filed objections to th e trial court’s statement of decision

. In April 2020, FANS filed a notice of appeal regarding the trial court’s statement of
decision

. In June 2020, the trial court filed a j udgment in favor of the Coastal Commission and Heritage on the first cause of a ction for violation of the Coastal Act and the second cause of action for violation of CEQA. The judgment incorporated the court’s written
statement of decision. The Coastal C ommission filed a notice of entry of judgment on July 13, 2020. On September 4 , 2020, FANS filed a second notice of appeal, this time from the judgment. This court ordered the two appeals by FANS to be considered together for purposes of record prepara tion, briefing, oral argument, and disposition.20 IV. DISCUSSION
FANS conten ds that the Coastal Commission “failed to employ the proper procedures required by CEQA when it approved the [project] prior to conducting environmental review pursuant to its r egulatory program.” (Italics and bold omitted.) Before addressing the substan ce of FANS’s contention, we first set forth (1) the standard of review and (2) general legal principles regarding environmental review by a certified regulatory program, such as the Coastal Commission’s program for coastal development permits.
A. Standard of Review
A decision by the Coastal Commission may be challenged by filing a petition for
writ of administrative mandate under Code of Civil Procedure section 1094.5. ( Pub.
Resou rce s Code, § 30801.) “ The inquiry in such a case shall extend to the questions
whether the [commission] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of
discretion is established if the [commission] has not proceeded in the mann er 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) , italics a dded .) 16 Relevant here, “ [i] n determining whether the agency complied with th e required procedures . . . , the trial court and the appellate courts essentially perform identical roles. We review the record de novo and are not bound by the trial court ’ s conclusions. [Citation s .]” ( Environmental Protection Information Center v. Ca lifornia Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 479 ; accord, La Costa Beach Homeowners’ Assn. v. California Coastal Com. (2002) 101 Cal.App.4th 804, 814

- 8 15 ( La Costa Beach ) .)

16 FANS expressly indicates that it is not challenging any factual finding that would implicate the substantial ev idence standard of review.21 “[I]f the manner in which an agency failed to follow the la w is shown to be prejudicial, or is presumptively prejudicial, as when the department or the board fails to comply with mandatory procedures, . . . the decision [must] be set as ide . . . .” ( Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236 ; see Sierra Club v. County of
Fresno (2018) 6 Cal.5th 502, 515 [“ failure to comply with the law subverts the purposes of CEQA” and constitutes prejudicial error “if it omits ma terial necessary to informed decisionmaking and informed public participation” ]

. )
B. General Legal Principles Regarding Environmental Review by Certified Regulatory Programs
1. Certified Regulatory Program Under CEQA, the EIR “is ‘the primary means of achievin g the Legislature ’ s considered declaration that it is the policy of this state to “ take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state. ” [Citation.]’ [Citation.]” ( Sierra Club v. State Bd. of Forestry , supra , 7 Cal.4th at p. 1229.) Generally , “ [w] henever a project may have a sign ificant and adverse physical effect on the environment, an EIR must be prepared and certified. [Citations.]” ( Mountain Lion
Foundation v. Fish & Game Com . (1997) 16 Cal.4th 10 5, 113 (Mountain Lion
Foundation ) .) “An EIR is not required for all projects s ubject to governmental approval, however. The Legislature has provided that the Secretary of the [Natural] Resources Agency may certify a regulatory program of a state agency a s exempt from the requirement of EIR preparation if the program requires that a project be preceded by the preparation of a written report containing certain information on the environmental impacts of the project. (§ 21080.5, subd. (a).)” ( Sierra Club v . State Bd. of Forestry , supra , 7 Cal.4th at pp. 1229

- 1230 ; see Gov. Code, § 12 805, subd. (a) [“Resources Agency” renamed as “Natural Resources Agency”] .) The certified regulatory program “involv[es] essentially the same consideration of environmental iss ues as is provided by22 use of EIRs and negative declarations.” (Regs., § 15002, subd. ( l ).) Thus, the “state agencies, operating under their own regulatory programs, generate a plan or other environmental review document that serves as a functional equiva lent of an EIR. [Citations.]” ( Mountain Lion Foundation , supra , 16 Cal.4th at p. 113.)
To be certified, the regulatory program must meet the statutory criteria set forth in
section 21080.5

. (See , e.g., id. , subd. (d)

. ) Among other requirements, the re gulatory program must adopt rules and regulations that “[r]equire that an activ ity will not be approved or adopted as proposed if there are feasible alternatives or feasible mitigation measures available that would substantially lessen a significant advers e effect that the activity may have on the environment.” ( Id. , subd. (d)(2)(A) .) 17
T he Coastal Commissio n’s regulatory program

— regarding the consideration and granting of coastal development permits under the Coastal Act

— has been certified as meeting th e requirements of section 21080.5 . (Regs., § 15251, subd. (c).) As a result,

17 T he regulatory program must also adopt rules and regulations that: “(B) Include guidelines for the orderly evaluation of proposed activities and the preparation of the plan or other written documentation in a manner consist ent with the environmental protection purposes of the regulatory program. “(C) Require the administering agency to consult with all public agencies that have jurisdiction, by la w, with respect to the proposed activity. “(D) Require that final action on the proposed activity include the written responses of the issuing authority to significant environmental points raised during the evaluation process. “(E) Require the filing of a notice of the decision by the administering agency on the proposed activity wit h the Secretary of the Resources Agency. Those notices shall be available for public inspection, and a list of the notices shall be posted on a weekly basis in the Office of th e Resources Agency. Each list shall remain posted for a period of 30 days. “(F ) Require notice of the filing of the plan or other written documentation to be made to the public and to a person who requests, in writing, notification. The notification shal l be made in a manner that will provide the public or a person requesting notif ication with sufficient time to review and comment on the filing.” (§ 21080.5, subd. (d)(2)( B )

- (F).)23 “[u]nder the terms of section 21080.5, subdivision (c), that certification expressly exempts the [coastal development permit] process from the provisions of chapters 3 and 4
and section 21167 of CEQA. [Citation.] Chapters 3 and 4 deal, in large part, wit h the various requirements of an EIR at both the state level (chapter 3) and the local level (chapter 4). Section 21167 sets forth the time within which an action challenging a public agency’s decision under the provisions of CEQA must be filed. ” ( Sierra Club v. State Bd. of Forestry , supra , 7 Cal.4th at p. 1230.) Although “[a] n agency operating pursuant to a certified regulatory program ” is not required to prepare an EIR, the agency is still required to “ comply with all of CEQA’s other requirements. [C itations. ] ” (Mountain Lion Foundation , supra , 16 Cal.4th at

p. 114 ; see Pub. Resource s Code, § 21080.5, subd. (c) ; Cal. Code Regs., tit. 14, § 15250 .) Further, “ to claim the e xemption from CEQA’s EIR requirements, an agency must demonstrate strict compli ance with its certified regulatory program. [Citations.]” ( Mountain Lion Foundation , supra , 16 Cal.4th at p. 132.)
2. Functional Equivalent Document As stated above, a state age ncy operating a certified regulatory program

“ generate [ s ] a [ n ] . . . environmen tal review document that serves as a functional equivalent of an EIR. [Citations.]” ( Mountain Lion Foundation , supra , 16 Cal.4th at

p. 113.) “The document used as a substitut e for an EIR or negative declaration in a certified program ” must include a “de scription of the proposed activity.” ( Cal. Code Regs., tit. 14, § 15252, subd. (a)(1); see Pub. Resource s Code , § 21080.5,
subd. (d)(3)(A) .) Relevant here, t he document must a lso include either :

“ ( A ) Alternatives to the activity and mitigation measures to avoid or reduce any significant or potentially significant effects that the project might have on the environment, or [¶] (B) A statement that the agency’s review of the pr oject showed that the project would not have any significant or potentially sig nificant effects on the environment and therefore no alternatives or mitigation measures are proposed to avoid24 or reduce any significant effects on the environment. This statem ent shall be supported by a checklist or other documentation to show the possib le effects that the agency examined in reaching this conclusion

. ” ( Cal. Code Regs. , tit 14. , § 15252,
subd. (a)(2) (A) , (B) ; see Pub. Resource s Code , § 21080.5, subd. (d)(3)(A) )

. The functional equivalent EIR must be “available for a reasonable time for r eview and comment by other public agencies and the general public.” (§ 21080.5, subd. (d)(3)(B).) Requiring specific findings about alternatives and mitigation measures “ ensu res there is evidence of the public agency’s actual consideration of alternativ es and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision. [Citations.] Under CEQA, the public agency bears the burden of affirmatively demonstrating that, notwithstanding a project’s im pact on the environment, the agency’s approval of the proposed project followed meaningful consideration of alternatives and mitigation measures. [Citation.]” ( Mountain Lion
F

oundation , supra , 16 Cal.4th at p. 134 ; see POET, LLC v. State Air Resources Bd

. (2013) 218 Cal.App.4th 681, 714 ( POET ) [“environmental review must be completed before project approval”] ; John R. Lawson Rock & Oil, Inc. v. State Air Resources Bd

. (2018) 20 Cal.App.5th 77, 98 [public agency’s “required environmental review was incompl ete at the time of the CEQA project approval” and therefore agency “violated CEQA’s timing requirement”].)
3. Coastal Commission’s De Novo Review of Permit Application
As we set f orth above, a local government’s decision on a coastal development permit appli cation may be appealed to the Coastal Commission. (§ 30603, subd. (a); see Pacific Palisades , supra , 55 Cal.4th at p. 794.) The commission considers the application de novo. ( § 30621, subd. (a) ; Security National Guaranty, Inc. v. California
Coastal Com

. (2008) 159 Cal.App.4th 402, 411 .) “[I]n effect, the Commission hears the application as if no local governmental unit was previously involved, deciding for itself
whether the proposed project satisfies legal standards and requirements. [Citations.]”25 ( Kaczorowski v. Mendocino County Bd. of Supervisors (2001) 88 Cal.App.4th 564, 569.)
The commission must determine whether the proposed development is in conformity
with the cer tified LCP

. ( § 30604, subd. (b) ; see § 30603, subd. (b)(1) .) If it is , the

co mmission must issue a coastal development permi t . ( § 30604, subd. (b). ) The commission’s regulations in effect during the relevant timeframe set forth the following procedur e for reviewing an application. (See Regs., §§ 13115, subd. (b), 13321.)

a. Writt en staff report
Prior to a public hearing , the executive director , who is appointed by the commission ( Pub. Resources Code, § 30335) , must “prepare a written staff report” th at includes the following: (1) a description of the proposed development and t he project site, (2) the significant questions of fact, (3) the applicable policies of the Coastal Act, (4) public comments regarding the application, (5) any legal issues regar ding the application’s compliance with the Coastal Act, (6) a copy or summary o f the EIR as it relates to the issues of concern to the commission, and (7) staff’s recommendation. ( Cal.
Code Regs., tit. 14, § 13057, former subds. (a) & (b), Register 99, No

. 39 (Sept. 20, 1999) ; see id. , § 13057, subd. (a)(1)

- (4) .)
T he staff recomm endation must include: (1) “[s] pecific findings , including a statement of facts, analysis, and legal conclusions as to whether the proposed development conforms to the requirem ents of the Coastal Act ” ; (2) specific findings evaluating the conformity of th e development with the requirements of Pub lic Resource s Code section 21080.5, subdivision (d)(2)(A) , which provides that an activity will “not be approved or adopted as proposed if there are feasible alternatives or feasible mitigation
measures available t hat would substantially lessen a significant adverse effect that the activity may have on the environment” ; (3) responses to significant environmental points raised during the e valuation of the proposed development as required by CEQA ; (4) a
recommendation regarding whether the application should be granted with or without26 conditions, or denied; and (5) if approval with conditions is recommended , the n the specific conditions must be identified, along with a discussion of why the conditions are necessary to ensure the development will be in accordance with the Coastal Act. ( Cal.
Code Regs., tit. 14, § 13057, former subd. (c), Register 99, No. 39 (Sept. 20, 1999) ; see id. , § 13057, subd. (a)(1)

- (4).) The staff report must be distributed to Coastal C ommission members, the applicant, affected cities and counties, and people who have specifically requested it, among others. (Regs., § 13059 .) The staff report must be “distributed wit hin a reasonable time to assure adequate notification prior to the scheduled public hearing.” ( Ibid. ) Written comments regarding the application or the staff report must be received at the appropriate district office . (Regs., § 13060, subd. (b).) T he executive director generally must distribute the text or a summary of the comm unication s to commission members. ( Id. , § 13060 , subd s

. (a) & (c) .) Any person may review the written
communications at the commission office during normal working ours

. ( Id. , § 13060, subd. (d).)
b. Public hearing The matter must be set for a public hear ing. (Regs., § 13062.) “Evidence before the [Coastal] Commission includes, but is not limited to, the record before the local government.” ( Id. , § 13118.) At the public hear ing, the “technical rules relating to
evidence and witnesses ” need not be follo wed, and “[a] ny relevant evidence shall be considered if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs .” ( Id. , § 13065.) Regarding the order of proceedings, the executive director must make a presentation regarding the project and include a summary of the staff recommendation. ( Regs., § 13066 , subd. (a)(1)

. ) The applicant and other p eople supporting or oppos ing the application may also speak at the hearing, and the executive director a nd the applicant27 may respond. ( Id. , § 13066, former subd. (b) (1)

- (3) , Register 99, No. 39 (Sept. 20, 1999) ; see id. , § 13066, subds. (a)(2)

- (4), (b) & (c)

. ) The commissioners may ask questions following any person’s presentation. ( Id. , § 13066, subd. (e )

. ) “At the conclusion of the public testimony portion of the public hearing, the executive director may propose to change the staff recommendation or the commission may propos e to add, delete, or modify the conditions contained in the staff recommendatio n. The applicant and the executive director shall have an opportunity to comment briefly and specifically on any proposed change.” ( Id. , § 13066, subd. (f)

. )

c. Vote by the com mission
The commission must then vote on the permit application. ( Regs

. , § 13 066 , subd. (g).) “[A] motion to grant the permit shall be deemed to include the terms proposed in the project description as modified by the applicant at the hearing and the co nditions and findings proposed in the staff report as modified by staff at the hearing.” ( Id. , § 13092, subd. (a).) “Any commissioner may move to add, delete or modify proposed terms, conditions or findings.” ( Regs., § 13092 , subd. (b).) If “the commi ssion moves to vote on an application with terms different from those proposed by the applicant in the application or conditions different than those proposed by the staff in the staff recommendation, the applicant , appellant, and the executive director sh all have an opportunity to state briefly and specifically their views on the co nditions. ” ( Id. , § 13090 , subd. (d). ) Voting is final upon the chairperson announcing the tally. (Regs., § 13094,
subd. (c).)
d. Written findings supporting the commission’s d ecision

“ All decisions of the commission relating to permit applications shal l be accompanied by written conclusions about the consistency of the application with [the
LCP ] and [CEQA] , and findings of fact and reasoning supporting the decision. The28 find ings shall include all elements identified in section 13057 [, former subdivisio n] (c) ” of the regulations regarding the content of the staff recommendation

. (Regs

. , § 13096, former subd. (a), Register 99, No. 39 (Sept. 20, 1999) ; see id. , § 13096, subd. ( a) .) “The purpose of requiring written findings is to record the grounds on which the decision of the Commission rests and thus render its legality reasonably and conveniently reviewable on appeal. [Citations.] Without appropriate written findings, th e trial court cannot properly perform its function in a proceeding for administ rative mandate and determine whether the agency’s decision is supported by its findings and its findings are supported by the evidence. [Citation.]” ( McAllister v. California Coastal Com . (2008) 169 Cal.App.4th 912, 941. ) Generally, “ an action taken co nsistent with the staff recommendation shall be deemed to have been taken on the basis of, and to have adopted, the reasons, findings and conclusions set forth in the staff repo rt as modified by staff at the hearing. ” ( Regs

. , § 13096, subd. (b).)
Relev ant here, “[ i ] f the commission action is substantially different than that recommended in the staff report , the prevailing commissioners shall state the basis for
their action i n sufficient detail to allow staff to prepare a revised staff report with

propo sed revised findings that reflect the action of the commission.

. . . ” (Regs

. , § 13096, subd. (b) , italics added .) A public hearing must be held regarding the revised findings

. ( Id. , § 13096, subd. (c).) “The public hearing shall solely address whether the proposed revised findings reflect the action of the commission.” ( Ibid .) After the public hearing, a vote must be taken by the commission. Adoption of the revised findin gs “requires a majority vote of the members from the prevailing side present at the meeting of the commission, with at least three of the prevailing members present and voting.” ( Pub. Resources Code, § 30315.1; see Cal. Code Regs., tit. 14, § 13096, subds . (b) & (c).) “[R]evised findings are meant to capture actions, not change the m. [Citations.]” ( San Diego Navy Broadway Complex Coalition v. California Coastal Com . (2019) 4029 Cal.App.5th 563, 577, fn. 8 ; see La Costa Beach , supra , 101 Cal.App.4th at p. 819 [revised findings “reflect[ed] in writing the rationale that the Commission ers and staff
articulated on the record at the . . . public hearing” and were not post hoc rationalizations (italics added) ] .)
C. Analysis
FANS contends that the Coastal Commissio n “failed to employ the proper procedures required by CEQA ” because the commiss ion approved Heritage’s coastal development permit application “prior to conducting environmental review pursuant to [the commission’s] regulatory program

. ” ( Italics & boldface omitted.) FANS argues that a certified regulatory program’s written document regarding environmental review ( the functional equivalent of an EIR ) must (1) contain certain elements , including a discussion of impacts, alternatives, and mitigation measures, and (2) be prepared before a project is approved

. FANS contends that the 2017 staff report, which was prepared prior to the Coastal Commission’s de novo hearing at which the commission approved the project, was inadequate because that report did not disc uss alternatives or mitigation measures despite finding significant impacts

. F ANS argues th at the subsequent 2018 staff report , which contained revised findings, could not constitute the requisite document, because it

was prepared after the Coastal Commis sion had already approved the project

. FANS
contends that the 2018 staff repor t was “an extreme example of post hoc rationalization.”
The Coastal Commission contends that its “ de novo review process is the functional equivalent of an EIR for purposes of CEQA.” A ccording to the commission, the “de novo review process in this case involved two hearings and two versions of a report prepared by staff,” that is, the de novo review and revised findings hearing s , and the staff reports prepared prior to those t wo hearings. The Coastal Commission contends that the final adopted revised fi ndings “memorialize the Commission’s decision at the de novo hearing to approve the application for a coastal development permit, a decision it
made with the benefit of full env ironmental review.”30 Heritage contends that the “functional equivalent documen t was the [Coastal] Commission’s decision, as reflected in its revised findings.” Heritage argues that the Coastal Commission complied with its regulations, and that “[t]here w as no new or different evidence and no new or different environmental analysis or LCP determinations made following the Commission’s vote to approve the [p]roject.” Heritage argues that the revised findings “were not . . . a ‘post

- hoc rationalization,’ bu t rather were informed by the LCP itself, [Heritage’s] analysis and expert evid ence, and the comments of two Coastal Commissioners who took the lead at the de novo hearing in addressing LCP inconsistency and the environmental justice benefits of the [p]roj ect to the Las Lomas community.” Heritage contends that the prevailing commiss ioners at the de novo hearing determined that (1) the LCP did not create a moratorium on development when the groundwater basin is in overdraft, and the project could proceed ba sed on evidence that the project was water neutral or water positive, and (2) t he oak woodlands at the project
site did not constitute ESHA.
We determine that the Coastal Commission ’s environmental review was incomplete at the time it approved Heritage’s coastal development permit application on November 8, 2017 , and that this fail ure to complete the required environmental review before approving the permit application requires that the approval be vacated

. Under CEQA, “ t o claim the exemption from

. . . EIR requirements, [the Coastal Commission] must demonstrate strict compliance with its certified regulatory program. [Citations.]” ( Mountain Lion Foundation , supra , 16 Cal.4th at p. 132.) This includes complying with the requirement “that a project be preceded by the preparation of a written report containing certain information on the environmental impacts of the project. [Citation.])” ( Sierra Club v. State Bd. of Forestry , supra , 7 Cal.4th at p. 1230 , italics
added .) Th is “environmental review docu ment that serves as a functional equivalent of an EIR” ( Mountain Lion Foundatio n , supra , 16 Cal.4th at p. 113) must include “alternatives to the activity, and mitigation measures to minimize any significant adverse31 effect on the environment of the activity ” ( Pub. Resource s Code , § 21080.5,
subd. (d)(3)(A) ; see id. , § 21080.5, subd. ( d)(2)(A); Cal. Code Regs., tit. 14, § 15252,
subd. (a)(2)(A), (B ) ; Pesticide Action Network North America v. Department of Pesticide Regulation (2017) 16 Cal.App.5th 224, 245; S trother v. California Coastal Com. (2009) 173 Cal.App.4th 873, 878; Schoen v. D epartment of Forestry & Fire Protection (1997) 58 Cal.App.4th 556, 572 ).
Consistent with th e s e requirement s of CEQA , the Coastal Commission’s certified regulatory program req uired the staff report to include findings evaluating the conformity
of the dev elopment with the requirements of Public Resources Code section 21080.5, subdivision (d)(2)(A), which provides that an activity will “not be approved or adopted as proposed if t here are feasible alternatives or feasible mitigation measures available that

w ould substantially lessen a significant adverse effect that the activity may have on the
environment.” (See Cal. Code Regs., tit. 14, § 13057, former subd. (c)(2), Register 99, No. 39 (Sept. 20, 1999); i d. , § 13057, subd. (a)(1), (3).) Along these lines, t he staff report was also required to include a discussion of any necessary conditions for the project . ( Id. , § 13057, former subd. (c) (4), (5) , Register 99, No. 39 (Sept. 20, 1999) ; see 

### i d. , § 13057, subd. (a)(3), (4) .)
The se requirements of the Coasta l Commission’s certified regulatory program follow CEQA’s “substantive mandate that public agencies refrain from approving projects for which there are feasible alternatives or mitigation measures ,” and that an agency not approve a project for which signif icant environmental effects have been identified unless the agency makes specific findings about alternatives and mitigation

measures. ( Mountain Lion Foundation , supra , 16 Cal. 4th at p. 134; see § § 21002 , 21081 .) A public agency “is required to carry out [this mandate] even when operating pursuant to its certified regulatory program. [Citations.]” ( Mountain Lion Foundation , supra , at p. 134.)32 A public agency must engage in a “meaningful consideration of alternatives and mitigation measures” before ap proving a project. ( Mountain Lion Foundation , supra , 16 Cal.4th at p. 134; see POET , supra , 218 Cal.App.4th at p. 714 [“environmental review must be completed before project ap proval”].)) Requiring specific findings about alternatives and mitigation meas ures “ensures there is evidence of the public agency’s actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision. [Citations.]” ( Mountain Lion Foundatio n , supra , at p. 134 .) In this case, the 2017 staff report, which was prepared prior to the Coastal
Commission’s approval of the project, acknowledged that “the proposed project would have significant adverse effects on the environment.” The report also a cknowledge d that project modifications and design alternatives were necessary to address issues pertaining to (1) oak woodland, (2) water quality, (3) visual resources and commu nity character, (4) agricultural areas, and (5) traffic. However, neither t he 2017 staff report nor its
addendum contained a complete analysis of mitigation measures or alternatives, as required by CEQA and the Coastal Commission’s regulatory program. ( P ub. Resource s Code , § 21080.5, subd

. (d) (2)(A), (3)(A); Cal. Code Regs., tit. 1 4, §§ 15252,
subd. (a)(2)(A), 13057, former subd. (c)(2), Register 99, No. 39 (Sept. 20, 1999); see Cal.
Code Regs., tit. 14, § 13057, subd. (a)(1), (3); Mountain Lion Foundatio n , supra , 16 Cal.4th at p. 134. ) The 2017 staff report and addendum also did n ot analyze any specific conditions that were necessary for approval of the project. (Regs., § 13057, former
subd. (c)(4), (5), Register 99, No. 39 (Sept. 20, 1999); see id. , § 13057, subd. (a)(3), (4).)
Instead , because the 2017 staff report was recommen ding “independently denying the project based on the lack of an adequate water supply,” the 2017 staff report indicated that additional information or documentation regarding th ese other issues ( e.g., oak woodland, water quality, visual resources and commu nity character, agricultural areas,33 and traffic) was “not warranted at this time,” and that any additional analysis , modification , or alternatives with respect to these other is sues was rendered “moot.” At the November 2017 de novo hearing, the Coastal C ommissioners primarily asked staff about water supply and ESHA /oak woodland issues. One of the commissioners expressed disagreement with staff regarding policy interpretations concerning water supply and ESHA/oak woodland. None of the commissioners made a
statemen t that express ed a view regarding mitigation measures or alternatives , or regarding any conditions that might be necessary to approve the project

. After the project was approved at the November 2017 de novo hearing , Coastal
Commission staff in the 2018 staff report analyze d for the first time various “components” of the project, mitigation measures , and /or conditions for the project

. The 2018 staff report ultimately determined that, after “review[ing] the relevant coastal
resource issues associ ated with the proposed project,” “the project as proposed appropriately addresses any potential adverse impacts to such coastal resources.”
Commission staff further found “that the proposed project avoids significant adverse
effects on the environment wit hin the meaning of CEQA. As such, there are no additional feasible alternatives or feasible mitigation measures available which would substantially lessen any significant adver se environmental effects that approval of the proposed project, as modified, wo uld have on the environment within the meaning of CEQA.” Th is new environmental analysis of various “components,” mitigation measures, and/or conditions for the project that “a ppropriately addresse[d] any potential adverse impacts to . . . coastal resourc es” included the following: First, r egarding habitat resources (previously referred to by commission staff as ESHA), the 2018 staff report contained a new environmental analysi s regarding whether
the proposed residential subdivision within oak woodland, i ncluding the removal of oak trees, was consistent with the LCP. The staff’s new environmental analysis relied on , among other things, recommendations set forth in a forester’s assessment, project34 conditions approved by M onterey County regarding oak woodla nd mitigation, and the anticipated preparation of an oak woodland restoration plan. With these parameters or conditions on the projec t (which affected the lots regarding size, location, siting, design, bulk, and boundaries and also reduced oak tree remova l), commission staff determined that the project “sufficiently minimized the amount of oak tree removal, and included measures to ensure its long

- term maintenance and enhancemen t per the LCP.” Second, r egarding water quality, the 2018 staff report contai ned a new environmental analysis regarding whether the project was consistent with appli c able LCP requirements governing water quality. In its new environmental analysis, commi ssion staff determined that water quality concerns would be sufficiently addres sed by the project’s proposed water quality protection measures during and after construction. 18 Third, r egarding the protection of visual resources and community character, th e 2018 staff report contained a new environmental analysis regarding whether th e project
was consistent with the applicable policies

. In its new environmental analysis, commission staff considered, among other matters, the siting and design of residences, vegetative screening, and the existence of and consistency with the oak woodla nd restoration plan. Based on the measures included in the project, commission staff determined that “the project [ was ] consistent with applicable visual resources and
communit y character protection policies.”

18 Regarding the water quality protection measures, commission staff stat ed: “Specifically, as proposed, the project will include new stormwater infras tructure, including a post

- construction drainage and erosion control system/detention pond designed to capture and infiltrate stormwater. The stormwater control measures will b e sited and designed to the maximum extent feasible: to collect, filter, treat, and direct all site drainage and runoff in a manner designed to protect and enhance coastal resources; to prevent pollutants, including sediments, from entering coastal waters or wetlands; to retain runoff from roofs, driveways, decks, and other imperviou s surfaces onsite; to use low impact development BMPs; and to include maintenance and management procedures applicable for the life of the project (including with respect to any homeowners association agreements as appropriate).”35 Regarding traffic, the 2018 staff report co ntained a new environmental analysis regarding whether the project was consistent with the LCP

. The new environmental analysis included a discussion of “transportation improvem ents designed to mitigate for project traffic impacts.” Commission staff deter mined that “the project’s traffic mitigations [ were ] sufficient to offset its impacts consistent with the LCP . . . .” After the 2018 staff report was issued, Heritage proposed additional policy analysis to be added regarding the project’s consistency wit h the LCP, and the Coastal Commission adopted the proposed language at the hearing on revised findings. The 2018 staff report thus contained new environmental analysis regardi ng components, mitigation measures , and /or conditions for the project , and thos e revised findings (along with modifications proposed by Heritage ) were adopted by the Coastal
Commission at the September 2018 hearing . As we have explained, however, the Coas tal Commission was required to consider project alternatives, mitigation measur es, and
conditions for the project before approving the coastal development permit application at the 2017 de novo hearing. ( Mountain Lion Foundation , supra , 16 Cal.4th at p. 1 34;
POET , supra , 218 Cal.App.4th at p. 714 ; see §§ 21002, 21081 .)
The Coastal Commission’s certified regulatory program does contemplate that the
commission might take an “action . . . substantially different than that recommended in the staff report.” (Regs., § 13096, subd. (b).) Thus, notwithstanding the 2017 staff report

recom mending denial of Heritage’s coastal development permit application, the
commission might properly take a “substantially different

. . . action” and approve the application. ( I

bid. ) To properly take this action, however, the prevailing commissioners

were required to “ state the basis for their action in sufficient detail to allow staff to prepare a revised staff report with proposed revised findings that reflect[ed] the action o f the commission.” ( Ibid. , italics added

. ) In this case, none of the prevaili ng commissioners at the 2017 de novo hearing expressed a view regarding mitigation measures or project alternatives, or regarding any conditions that might be necessary for36 proj ect approval. Indeed, commission staff did not provide a substantive analysis of many “components” of the project, mitigation measures , and /or necessary conditions until the 2018 staff report , which was after the project had been approved by the
commissio n

. Our conclusion that the Co a stal Commission failed to follow the proper pro cedure
is further supported by the prevailing commissioners’ statements at the hearing regarding revised findings in 2018, which was after the commission had approved the projec t and after FANS had filed the petition for writ of mandate in the trial court

. At the
2018 hearing regarding revised findings , the prevailing commissioners discussed whether to adopt Heritage’s proposed modifications to the 2018 staff report regarding re vised findings. One of the commissioners remarked: “[W]e find ourselves in a situation where the interests, generally speaking, of the Commission in terms of the permit itself and that of [Heritage] should be somewhat aligned. So it is in the interest o f [Heritage] to strengthen our findings from their perspective, not to weaken t hem. [¶] It’s also in the interest of the Commission to have the most defensible findings possible here in the interest of [Heritage] and the Commission should be aligned beca use the Commission granted the permit. We granted the application.” The commi ssioner subsequently stated , “I have no objection to the suggested modifications made by [Heritage] because I think they also in most cases

-- they strengthen and broaden and ad d to the findings that were made by the majority at that hearing. And so I wou ld personally have no objection to incorporating that.” (Italics added.) A second commissioner stated, “[Heritage’s] revised findings do adequately reflect what my thought pro cess was and why I voted the way I did.” (Italics added.) A third commissione r stated, “I agree with my colleagues

. . . that the revised findings reflect what my thought process was that day as well.” (Italics added.) These statements by the prevailin g commissioners at the 2018 hearing support the conclusion that the commission’ s revised findings, including the modifications proposed by Heritage, went beyond the limited statements about policy interpretations37 concerning water supply and ESHA /oak woodla nd that were expressed by the prevailing
commissioners at the earlier 2017 de n ovo hearing when the application was approved. In this regard, t he commission’s regulations require that the prevailing
commissioners expressly “ state the basis for their act ion in sufficient detail to allow staff to prepare a revised staff report with proposed revised findings

. ” (Regs., § 13096,
subd. (b) , italics added .) As the trial court in this case observed, this provision “ensure[s]
that the Commission’s environmental review and reasoning occur before any action is taken as it effectively requir es commissioners to set forth the analytic route between the
evidence and the action at the hearing before approval . Put another way, the requirement
that commissioners state t he basis for their action in enough detail that staff can later prepare revised findings reflective of their decision is essentially a requirement that the
commission ers layout the analytic route for their decision before the approval occurs.
Under these circumstances, the revised findings are then not post hoc rationalizations but a mere ‘reflect[ion] in writing’ of the rationale articulated by the Commission at the hearing in which approval is granted. [Citation.] ” (Fn. omitted , italics added .) In thi s
case, the commission’s 2018 revised findings went beyond the limited statemen ts about
LCP policy interpretations concerning water supply and ESHA/oak woodland that were expressed by the prevailing commissioners at the earlier 2017 de novo hearing when th e application was approved, and instead the 2018 staff report and revised findi ngs ultimately adopted by the prevailing commissioners included new environmental analysis regarding project components, mitigations measures , and /or conditions that were

necess ary to address potential adverse impacts to coastal resources.
T he Coastal Co mmission and Heritage rel y on various cases for the general proposition that the commission at the de novo hearing could properly reject staff ’s
recommendation contained in the 2017 staff report. We agree with the general proposition that the Coastal C omm ission may reject a staff recommendation contained in a staff report

. (See Regs., § § 13096, subd. (b) [addressing the circumstance when “the38 commission action is substantially different than tha t recommended in the staff report”] ; 13090, subd. (d) [addres sing the circumstance if “the commission moves to vote on an application with . . . conditions different than those proposed by the staff in the staff recommendation”].) Howeve r, none of the cases cited by the Coastal Commission or Heritage involve s facts similar to this case, where a project with potential adverse impacts to the environment is approved before a complete analysis is conducted regarding alternatives, mitigation m easures, and/ or project conditions. For example, Ocean Harbor House Homeowner s Assn. v. California Coastal Com. (2008) 163 Cal.App.4th 215 ( Ocean Harbor ) , a case cited by Heritage, is factually distinguishable in significant respects from the present cas e . In Ocean Harbor , a homeowners association sought to build a seawall to prot ect the association’s condominium complex from erosion that threatened the complex’s structural integrity. ( Id. at p. 219.) Coastal Commission staff prepared a report recommen ding the grant of a coastal development permit with conditions. ( Id. at pp. 22 0

- 221

. ) Because the seawall would cause an acre of beach to erode, which in turn would cause the loss of lateral access along the beach and the loss of recreational use, the st aff report recommended an
in

- lieu mitigation fee to be used to buy beach proper ty elsewhere for public recreational use. ( Id. at p. 221.) The staff report “ discussed three methods to determine the value of
the acre of beach that would be lost and thus th e amount of the mitigation fee.” ( Ibid. )
The three methods were the sand

- repl acement method, the real estate value method, and
the economic recreational value method. ( Id. at p. 221

- 222.) “Each method considered the loss of beach from a different persp ective.” ( Id. at p. 221.) Although the staff report
recommended the second va luation method , which would result in a $1 million mitigation fee , the commission ultimately voted in favor of the third valuation method , which was estimated to result in a fee of more than $5 million . ( Id. at p. 223

- 224.) The commission later adopted r evised findings to reflect its action. ( Id. at p. 225.)39 The homeowners filed a petition for writ of mandate, contending “the fee was arbitrary and based on post hoc rationaliz ation because the Commission first decided to increase the fee from $1 million to $5 million and then sought a justification for doing so.” ( Ocean Harbor , supra , 163 Cal.App.4th at p. 226.) The trial court denied the petition, and the appellate court aff irmed. ( Id. at p. 220.) The appellate court explained that the staff report “provided detailed analyses of three ways the fee could be determined, each of which took a different perspective on the nature of the loss of beach: the loss of sand; the loss of real estate; and the loss of
recreational value. Staff recommended the sec ond way, which resulted in a fee of $1 million. However, staff admitted that its recommendation provided only partial mitigation and, in light of the economic recreational valu e method, underestimated the impact.” ( Ocean Harbor , supra , 163 Cal.App.4th at p. 245.) A Coastal Commissioner “echoed the staff’s admission,” “objected to the recommendation,” explained the basis for his objection, and “recommended that the Commission a dopt the economic recreational value approach [(the third method)], which was f ully detailed in the report.” ( Ibid. ) The commission thereafter voted to adopt the third method. ( Ibid. ) The appellate court found that “the detailed explanation of the [thi rd method ] and the resulting fee in
the staff report provided an ample factual basis and explanation for the Commission’s decision to reject the staff recommendation and adopt a different methodology and fee.” ( Ibid. ) The appellate court further found th at “revisions” to the staff report “were relatively minor and cannot reasonably be considered a post hoc rationalization for predetermined decision.” ( Ibid. ) In contrast, in this case, the 2017 staff report for the de novo hearin g found that the project had a water supply issue, would have significant adverse effects on the
environ ment , and recommended denying the permit application

. Unlike the staff report
in Ocean Harb o r which contained a “detailed explanation” of three valuation methods for
calculatio n of a mitigation fee ( Ocean Harbor , supra , 163 Cal.App.4th at p. 245), the40 201 7 staff report prepared for the de novo hearing in this case did not include a complete analysis of alternatives, mitigation measures, or conditions that might be necessary for project approval. Moreover, in this case, none of the commissioners at the de novo hearing expressed a view regarding alternatives, mitigation measures, or conditions that might be necessary to address significant adverse effects the project may have on t he
environment , yet a majority of commissioners voted to approve the applicatio n. ( Cf. La
Costa Beach , supra , 101 Cal.App.4th at p. 819 [subsequent revised findings “reflect[ed] in writing the rationale that the Commissioners and staff articulated on the record at the

. . . public hearing” and were not post hoc rationalizations (ita lics added) ].) It was not
until the preparation of the 2018 staff report that an analysis was completed regarding various project components, mitigation measures , and /or condit ions that were determined necessary to avoid potential adverse impacts on coast al resources. This environmental analysis should have been completed before the commission voted to approve the project

. ( See, e.g., Mountain Lion Foundation , supra , 16 Cal.4t h at p. 134; POET , supra , 218 Cal.App.4th at p. 714

. ) We also are not persuade d by Heritage’s characterization of the procedure in this

case

– in which the Coastal Commission “[i]n approving the [p]roject, . . . disagreed with
it s staff, thus requiring th at the matter return to the Commission for adoption of revised findings”

– as “ roughly analogous to when a trial court provides its tentative ruling on a matter at a hearing and only later adopts its written order or findings setting forth its decision, ei ther consistent with or different from the tentative.” When a matter is under submission, a trial court is free to change its tentative ruling, including its reasons and
ultimate decision. T he Coastal Commission, however, must complete the requisite
envi ronmental analysis before the commission decides to approve the project at the de novo hearing, and the prevailing commissioners must state the basis for their action in sufficient detail at th at hearing if the commission’s action is substantially differen t than the staff recommendation. The revised findings issued thereafter should “reflect in41 writing the rationale that the Commissioners . . . articulated on the record at the [de novo] hearing.” ( La Costa Beach , supra , 101 Cal.App.4th at p. 819.) In thi s case, as we have explained , the commission’s environmental analysis was incom plete at the time of the application’s approval at the 2017 de novo hearing , and the subsequent 2018 staff report, which was adopted with modifications by the prevailing commiss ioners, contained new environmental analys e s regarding the project’s components , mitigation measures, and conditions in relation to potential adverse impacts to coastal resources. We are also not persuaded by Heritage’s contention that FANS failed to exh aust its administrative remedies and is barred from raising a claim that the Co astal
Commission did not analyze the p roject’s impac ts regarding visual resources, agricultural resources, and transportation impacts before approving the project

. Heritage arg ues that FANS never raised an issue regarding impacts to these resources in the Coastal Commission proceedings or in the trial court. Heritage primarily relies on
section 21177 19 and Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535

19 Section 21177 states: “(a) An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided b y this division or before the close of the public hearing on the project before the issuance of the notice of determination.

“ (b) A person shall not maintain an action or procee ding unless that person objected to the approval of the project orally or in wr iting during the public comment period provided by this division or before the close of the public hearing on the project before the filing of notice of determination pursuant t o Sections 21108 and 21152.

“ (c) This section does not preclude any organizatio n formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivision (b).

“ (d) This secti on does not apply to the Attorney General.

“ (e) This section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing before the approval of the project, or if the public agency failed to give the notice required by law.”42 [ exact issu e must be presented to the public agency in order to advance exhaustion
doctrin e’s purpose of providing agency with opportunity to act before litigation occurs].) “ ‘ “Exhaustion of administrative remedies is a jurisdictional prerequisite to
maintenance o f a CEQA action.” [Citation.] Subdivision (a) of . . . section 21177 sets
for th the exhaustion requirement . . . .’ ” ( California Native Plant Society v. City of
Rancho Cordova (2009) 172 Cal.App.4th 603, 615

- 616 ( California Native Plant ) .) The require ment is satisfied if “the alleged grounds for noncompliance with [CEQA] were

pr esented to the public agency orally or in writing by any person during the public comment period provided by [CEQA] or before the close of the public hearing on the project befo re the issuance of the notice of determination. ” (§ 21177, subd. (a).) “ ‘The purpose of the rule of exhaustion of administrative remedies is to provide an administrative agency with the opportunity to decide matters in its area of expertise prior to jud icial review. [Citation.] The decisionmaking body “ ‘is entitled to learn the contentions of interested parties before litigation is instituted.’ ” ’ [Citation.] [¶] T o exhaust administrative remedies, ‘[m]ore is obviously required’ than ‘generalized environmental comments at public hearings. ’ [Citation.] ‘On the other hand, l ess specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding. ’ ” ( California Native Plant , supra , 172 Cal.App.4th a t p. 616.) Generally, “ ‘ the exhaustion requirement does not apply when the ad ministrative procedure did not provide for a public hearing or other opportunity for members of the public to raise objections before project approval. [Citation.]’ [Citation. ]” ( Hines v. California Coastal Com . (2010) 186 Cal.App.4th 830, 854 ; see § 21 177, subd. (e ) .) In this case, the 2017 staff report prepared prior to th e de novo hearing did not contain a complete environmental analysis of alternatives, mitigation measure s, and conditions for project approval because commission staff recommended den ial of Heritage’s permit application. Despite the staff recommendation to deny the application,

t h e Coastal Commission instead approved the project at the 2017 de novo hearing.43 Thereafter , and prior to the commission’s hearing regarding revised findings, FANS and
LandWatch in a letter to the Coastal Commission dated September 7, 2018, objected to
the 2018 staff report regarding revised findings, contending that the report conta ined “improper after

- the

- fact rationalizations,” was an “attempt to justify an approval that occurred without any conditions or findings in support of approval,” “serve[d] as a post hoc rationalization for a project that was already approved on November 8, 2017,” and “include[d] after

- the

- fact environmental review in violation of CEQ A.” FANS further contended that the prevailing commissioners at the de novo hearing “failed to provide an adequate basis” for approving the project, including regarding water, ESHA, and agriculture, and that the project was approved “without conditions an d without mitigations.” FANS argued that although the prevailing commissioners apparently disagreed with staff on certain policy issues, the commissioners’ reasoning on those

p olicies was “insufficient” to support approval and the “after

- the

- fact [s]taff [r]eport and revised findings do not cure this defect.” FANS cited to Pub lic Resource s Code
section 21080.5, subdivision (d)(2)(A) [certified regulatory program’s rules must re quire that an activity will not be approved if there are feasible alternatives or mitigation measures that would substantially lessen a significant adverse effect] and California Code
of Regulations, title 14, section 13096, subdivision (b) [if commission action is substantially different than staff recommendation, then prevailing co mmissioners must state the basis for the their action in sufficient detail to allow preparation of proposed revised findings that reflect commission’s action]. Similarly , FANS in its opening brief in support of the petition for writ of mandate
filed in t he trial court reiterated its contentions that the Coastal Commission failed to conduct the requisite environmental review before approving the project , and that the post

- approv al findings constituted improper post hoc rationalizations , again citing Pub lic
Resource s Code section 21080.5, subdivision (d) and California Code of Regulations,
title 14, section 13096, subdivision (b)

. We further observe that Heritage, in opposition44 t o the petition by FANS , argued that the 2018 staff report regarding revised fin dings “fully addressed the environmental impacts of the [p]roject,” and that the report included a “comprehensive review and analysis” of coastal resource issues regarding “wate r supply and groundwater resources,” “habitat resources,” “water quality,” “vis ual resources and community character,” “agriculture,” and “traffic.” On this record, we determine that FANS has preserved the dispositive issue of this appeal , that is, whet her the Coastal Commission fail ed to complete the requisite
environmental revie w before approving Heritage’s permit application at the 2017 de novo hearing (see, e.g., Pub. Resource s Code , § 21080.5, subd

. (d)(2)(A) , (3)(A)) , which
includes the question of whether the prevailing commissioners sufficiently state d the
basis for their a ction at the hearing to properly allow staff to prepare a report regarding
revised findings ( Cal. Code Regs., tit. 14, § 13096, subd

. (b) ).
We observe that FANS on appeal also contends that the 2018 staff report “is not an adequate functional equivalent d ocument in any event” because it “fails to address alternatives,” “it improperly conflates Project features and mitigation measures,” and “it reverses previous conclusions witho ut adequate explanation.” As we have explained, the
Coastal Commission failed to comply with the requirements of CEQA and the commission’s own regulatory program when it approved Heritage’s coastal development permit application without first completing a n analysis of mitigation measures (including conditions on the project) and pro ject alternatives. The 2018 staff report containing revised findings, which was prepared after project approval, does not remedy this defect in procedure. We therefore do not reach these additional issues raised by FANS. Lastly, all the parties raise th e issue of Monterey County’s EIR in relation to the Coastal Commission’s approval of Heritage’s coastal development permit application.
We do not address the issue further, as (1) FANS contends that the commission “did not truly rely on the County’s EIR,” (2) the commission contends that its approval of the permit application was proper “ without the County’s EIR,” and (3) Heritage45 acknowledges that , notwithstanding the existence of the county’s EIR, the commission was required to “reach[] its own conclusio ns on whether and how to approve the project.” (Italics added.) In sum, the record reflects that the Coastal Commission did not complete an analysis of mitigation measures (i ncluding conditions for the project) or alternatives , as required under CEQA an d the commission’s certified regulatory program , until the
2018 staff report was prepared, which was after the project had already been approved. Under these circumstances, we conclude that the commission failed to comply with the requirements of CEQA and the commission’s own regulatory program by approv ing Heritage’s coastal development permit application without first completing an analysis of mitigation measures (including co nditions for the project) and alternatives. Because the commission did not pro ceed in accordance with the procedures mandated by law, the commission abused its discretion in approving the permit application. (Code Civ. Proc., § 1094.5, subd. (b); see Mou ntain Lion Foundation , supra , 16 Cal.4th at p. 137 [“failure to proceed in acco rdance with law presumptively prejudicial when mandatory procedures not followed”], citing Sierra Club v. State Bd. of Forestry , supra , 7 Cal.4th at pp. 1235

- 1237 ; Sierra Club v . County of Fresno , supra , 6 Cal.5th at p. 515 [“failure to comply
with the law subverts the purposes of CEQA” and constitutes prejudicial error “if it omits material necessary to informed decisionmaking and informed public participation”].)
V. DISPOSITIO N The judgment is reversed . On remand, the trial court is directed (1) to vac ate its decision denying the petition for writ of mandate , (2) to enter a new judgment granting the petition against the California Coastal Commission , and (3) to issue a writ o f mandate directing the c ommission to vacate its approval of the coastal develo pment permit application

. Appellants Friends, Artists and Neighbors of Elkhorn Slough and LandWatch Monterey County shall recover their costs on appeal.BAMATTRE

- MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

DANNER, J.

Friends, Artists and Neighbors of Elkhorn Slough v. California Coastal Commission H048088 H048409Filed 12/14/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

FRIENDS, ARTISTS AND NEIGHBORS OF ELKHORN SLOUGH et al., Plaintiffs and Appellants,

v.
CALIFORNIA COASTAL COMMISSION, Defendant and Respondent;
HERITAGE/WESTERN COMMUNITIES, LTD, et al.,

Real Parties in Interest and Respondents. H048088, H048409 (Monterey County Super. Ct. No. 18CV001000)

ORDER CERTIFYING OPINION FOR PUBLICATION

THE COURT: The opinion in the above

- entitled matter filed on November 15, 2021, was not certified for publication in the Official Reports. The Coastal Environmental Rights Foundation; Remy Moose Manley LLP; the Planning and Conservation League, Building
a Better Red ondo, Penny Elia, and the Environmental Defense Center; appellants Friends, Artists and Neighbors of Elkhorn Slough and LandWatch Monterey County; and Citizens Preserving Venice request the opinion be certified for publication. Under California
Rules of Court, rule 8.1105(c), the opinion is ordered published.B AMATTRE

- MANOUKIAN, J.

ELIA, ACTING P.J.

DANNER , J.

Friends, Artists and Neighbors of Elkhorn Slough v. California Coastal Commission H048088 H048409Trial Court: Monterey County Superior Court Superior Court No.: 1 8 CV 001000

Trial Judge: Hon. Lydia Villarreal

Attorney s for Plaintiffs and Appellants : Friends, Artists and Neighbors of Elkhorn Slough ; Landwatch Monterey County William P. Parkin Yuchih Pearl Kan Wittwer Parkin LLP Molly E. Erickson Michael W. Stamp Stamp | Erickson

Attorney s for Defendant and Respondent : California Coastal Commission Rob Bonta Attorney General of California Daniel A. Olivas Senior Assistant Attorney General David G. Alderson Supervising Deputy Attorney General Susan A

. Austin Deputy Attorney General

Attorney s for Real Parties of Interest and Respondent : Heritage/Western Communities Ltd and Heritage Development Corporation Steven Harold Kaufmann Nossaman LLP

Mark A. Blum Horan Lloyd, A Professional Corporation

Friends, Artists and Neighbors of Elkhorn Slough v. California Coastal Commission H048088 H048409