Filed 6/23/22 Trask Properties III v. City of L.A. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

TRASK PROPERTIES III, LLC,

Petitioner and Appellant,

v.

CITY OF LOS ANGELES,

Respondent.

 B309511

 (Los Angeles County

 Super.Ct.No. 19STCP00644)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Mary H. Strobel, Judge. Affirmed.

Jeffer, Mangels, Butler & Mitchell, Benjamin M. Reznik, Lara R. 

Leitner and Matthew D. Hinks for Petitioner and Appellant.

Michael N. Feuer, City Attorney, Terry Kaufmann Macias, Oscar 

Medellin and Patrick Hagan, Deputy City Attorneys, for Respondent.

____________________________

Petitioner Trask Properties III, LLC (Petitioner) is a limited liability 

company that operates a Toyota dealership in Marina Del Rey. It also owns a 
2

plot of land in Marina Del Rey that is zoned as Zone A1-1 (single-family 

dwellings and agricultural uses only) and located in the “Coastal Zone” as 

defined by the California Coastal Commission under the California Coastal 

Act of 1976 (Pub. Resources Code, §§ 30000 et seq.) and Los Angeles 

Municipal Code section 12.20.2.

1

Planning to build a parking lot on the tract, Petitioner applied to 

respondent City of Los Angeles (City) for a conditional use permit (CUP) and 

a coastal development permit (Coastal Permit). The City Zoning 

Administrator (ZA) granted the applications. Opponents of the ZA’s decision 

appealed to the West Los Angeles Area Planning Commission (Commission), 

which reversed the ZA’s grant of the CUP and the Coastal Permit. In sum, 

the Commission determined that the ZA erred in granting the Coastal 

Permit, because the tract contained “wetlands” (Pub. Resources Code,

1 In relevant part, Public Resources Code section 30103, subdivision (a) 

provides: “‘Coastal zone’ means that land and water area of the State of 

California from the Oregon border to the border of the Republic of Mexico, 

specified on the maps identified and set forth in Section 17 of Chapter 1330 of 

the Statutes of 1976. . . . In significant coastal estuarine, habitat, and 

recreational areas it extends inland to the first major ridgeline paralleling 

the sea or five miles from the mean high tide line of the sea, whichever is 

less, and in developed urban areas the zone generally extends inland less 

than 1,000 yards.”

In turn, LAMC section 12.20.2 provides in relevant part: 

“‘Coastal Zone’ “shall mean that land and water area within the City of Los 

Angeles as specified on maps prepared by the California Coastal Commission, 

copies of which are on file with the Department of City Planning and the 

Office of City Engineer. [¶] Such ‘coastal zone’ extends seaward to the City’s 

outer limit of jurisdiction, and generally extends inland 1000 yards from the 

mean high tide line of the sea. In significant coastal estuarine, habitat and 

recreational areas it extends inland to the first major ridgeline paralleling 

the sea or five miles from the mean high tide line of the sea, whichever is 

less, and in developed urban areas the zone extends inland 1000 yards.” 

(LAMC, § 12.20.2, subd. B.) 
3

§ 30121; Cal Code Regs, tit 14, § 13577), and because the proposed 

construction would dike, fill, or dredge wetlands in violation of Public 

Resources Code section 30233. The Commission also reversed the ZA’s 

decision granting the CUP because, inter alia, construction of the proposed 

parking lot would not enhance the built environment or benefit the 

community and would degrade the adjacent properties and wetlands.

Petitioner petitioned the superior court for a writ of administrative 

mandate setting aside the Commission’s decision reversing the ZA. The 

superior court denied the petition, and Petitioner now appeals to this court. 

Petitioner contends: (1) the Commission lost jurisdiction by failing to act on 

the appeal within the requisite time period set forth in Los Angeles 

Municipal Code section 12.24, thereby rendering the ZA’s decision final by 

operation of law; (2) the Commission failed to make the requisite findings to 

support its reversal of the ZA; and (3) substantial evidence does not support 

the Commission’s findings that the Project failed to satisfy the requisite 

criteria for a Coastal Permit and CUP. We disagree with the contentions and 

affirm the superior court’s denial of administrative mandamus.

BACKGROUND

1. Permit Requirements Under the California Coastal Act and the 

Los Angeles Municipal Code

Construction within the Coastal Zone requires a Coastal Permit from 

the City. (Pub. Resources Code, § 30600, subd. (b); Los Angeles Municipal 

Code, § 12.20.2, subd. C.)

2 Moreover, in certain areas, referred to as dual 

2 Undesignated section references shall be to the Public Resources Code. 

The Los Angeles Municipal Code shall be referred to as LAMC.
4

permit jurisdictions, an applicant must also obtain a second permit from the 

California Coastal Commission. (§ 30600, 30601; Cal. Code Regs., tit. 14, 

§ 13301, subd. (a).) Property located within 100 feet of a wetland qualifies as 

a dual jurisdiction zone. (§§ 30601, 30601(2); LAMC, § 2.20.2, subds. C & 

G.1.) Further, when proposed construction on a parcel is “not permitted by 

right” under the controlling zoning classification, the project cannot proceed 

without a CUP granted by the City. (LAMC, § 12.24.) 

2. The Property and the Project

On January 27, 2016, Petitioner filed an application with the City to 

construct a surface parking lot for 308 cars (the Project) on a parcel it owns at

13200 West Mindanao Way in Marina Del Rey (the Property). The Property 

is a long, narrow undeveloped tract (1,862 feet long and 60 feet wide, covering 

110,007 square feet) that borders to the east on the Ballona Wetlands 

Ecological Reserve. Although for zoning purposes Petitioner characterized 

the Project as a “public parking lot,” it was intended to serve as inventory 

storage and employee parking for Petitioner’s nearby Toyota Dealership. 

The Property is zoned as Zone A1 (single-family dwellings and 

agricultural uses only) and is within the Coastal Zone. Therefore, Petitioner 

applied to the City for a CUP pursuant to LAMC section 12.24 and for a 

Coastal Permit under LAMC section 12.20.2, subdivision B. 

3. Zoning Administrator’s Approval of Project

Petitioner’s applications were initially presented to the ZA.3 To satisfy 

its duties under the California Environmental Quality Act (CEQA; §§ 21000 

3 Under the LAMC, the ZA is the initial decision maker for a CUP for a 

parking facility in an A-1 zone. (LAMC, § 12.24, subd. W.) Further, the ZA 
5

et. seq.), the City prepared an Initial Study and Mitigated Negative 

Declaration (MND) dated May 18, 2016. (§ 21092; Cal. Code Regs., tit. 14, 

§ 15072.) In reliance on the report, the MND concluded that the 

environmental impact of the Project would be insignificant or in the 

alternative could be mitigated to a level of insignificance. Using the 

definition “wetlands” under federal law, the MND also concluded that the 

Property “does not contain any federally protected wetlands, wetland 

resources, or other waters of the United States as defined by Section 404 of 

the Clean Water Act.” (Italics added.) 

As we discuss more fully in our Discussion, post, the controlling 

definition of wetlands is that used by the California Coastal Commission, 

which differs significantly from the definition used by federal law. The MND 

did not consider whether wetlands existed on the Property under that 

controlling definition. 

On May 18, 2016, the ZA held a hearing on the Project. At the hearing, 

members of the public objected that Project would, among other things, pave 

over wetlands on the Property, remove mature trees, and threaten sensitive 

species. To allow Petitioner to address those concerns, the ZA took the 

matter under advisement. 

The City later prepared a second MND (which it circulated on August 

31, 2017), expressly citing to submissions by Petitioner’s environmental 

consulting firm.

4 The second MND, like the first, concluded that “[t]he 

has authority to grant a Coastal Permit. (LAMC, § 12.24, subds. C, U, V, W 

& X; § 12.20.2, subd. G.1.) 

4 The first MND stated at the outset of the report that in preparing the 

MND the City relied, inter alia, on submissions by the applicant. The second 

MND expressly cited to reports prepared by Petitioner’s environmental 

consulting firm. Petitioner’s experts utilized the USACE/Clean Water Act 

criteria to conclude that no wetlands existed on the property. 
6

project sites do not contain any federally protected wetlands” under the Clean 

Water Act, and added that “[t]he USACE [United States Army Corp of 

Engineers] has regulatory jurisdiction over traditional navigable waters and 

tributaries with relatively permanent flow.” It declared that “a drainage 

feature on the East Site appears to have been excavated as part of the 

Marina Expressway construction, as opposed to being a natural feature, and 

the drainage features on both project sites appear to only drain the 

surrounding urban areas. . . . As such, the project would not have any effect 

on federally protected wetlands as defined by Section 404 of the Clean Water 

Act.” As before, the second MND did not consider whether any wetlands 

existed under the controlling California definition. 

The next hearing before the ZA was held on January 17, 2018. At the 

hearing, Petitioner’s representative characterized the second MND in 

relevant part as having “evaluated the drainage ditch along the 90 freeway

[the Marina Expressway]” and as having “determined [it not] to be a 

wetland.”

On April 30, 2018, the ZA approved the Project (with conditions not 

relevant here). In granting the Coastal Permit, the ZA determined that the 

Project was in conformity with Chapter 3 of the California Coastal Act, 

section 30233, because “[t]here will be no dredging, filling, or diking of coastal 

waters or wetlands associated with the request, and there are no sensitive 

habitat areas, archaeological, or paleontological resources identified on the 

site.” The ZA further concluded that the property site was within “the single 

permit jurisdiction of the Coastal Zone.”

In granting the CUP, the ZA found the Project would be beneficial to 

the community by improving drainage to the site and by adding security and 

low-level lighting to prevent trespassing and other nuisances on the property. 
7

4. Appeal and Final Determination by the West Los Angeles Area

Planning Commission

On May 15, 2018, two opponents of the project—the Ballona Institute 

and the Villa Napoli Homeowner’s Association (collectively “administrative 

appellants”)—timely appealed the Project to the West Los Angeles Area 

Planning Commission (Commission). The administrative appellants asserted, 

inter alia, that in concluding the project did not encompass any wetlands, 

Petitioner’s consultants and, in turn, the MND and the ZA, erroneously 

applied the narrow definition of wetlands used by the USACE for the Clean 

Water Act, rather than the more expansive definition used by the California 

Coastal Commission. The administrative appellants submitted 

documentation indicating the Coastal Commission considered the site to be 

within the dual jurisdiction zone, due to the existence of wetlands, and a 

survey of the property by local biologist Robert “Roy” Van de Hoek, indicating 

there are wetlands on the property.

On July 27, 2018, the Coastal Commission sent an email to the City’s 

Department of Planning stating that it considers the Property to be within 

the dual zone “because of the presence of a stream/wetland on the propert[y]

which has been referred to as a drainage ditch.” The letter stated that “the 

extent of the wetlands on the sites will need to be determined by a qualified 

ecologist as part of the coastal development permit application process (i.e., 

wetland delineation).” 

On July 30, 2018, Petitioner’s counsel sent a letter to the Commission 

asking for a continuance of the next hearing, scheduled for August 1, 2018, to 

allow petitioner to address the issues raised by the administrative appellants. 

At the hearing on August 1, 2018 Petitioner’s counsel appeared before the 
8

Commission and asked for a continuance “for three months to midNovember.” Counsel stated that the purpose of the continuance was to 

prepare and submit into the record a wetland delineation study under the

criteria used by the California Coastal Commission. Over the objection of the 

administrative appellants, the Commission granted Petitioner’s request and 

continued the hearing to December 5, 2018. 

At the hearing on December 5, 2018, members of the public testified in 

opposition to the Project, including local biologist, and President of the 

Ballona Institute, Van de Hoek, who had twice personally surveyed the site 

and identified fourteen distinct wetlands as defined by the California Coastal 

Act. Van de Hoek also prepared a bound study entitled “The Marina 

Wetlands: An Appeal for a Rational Decision,” that contained photographs 

and other evidence regarding the various wetlands on site. The report 

described in detail where each wetland lies, the type of soils present, and the 

type of fauna supported by those various plants and soils. 

Petitioner provided their own expert report and presented the 

testimony of biologist Dr. Edith Read. Petitioner’s consultants admitted (in 

somewhat contradictory and at times equivocal language) that a small 

portion of the Property includes wetlands, but argued the wetlands were too 

small to be meaningful and/or that the damage to the wetlands could be 

avoided or mitigated.5

5 In this appeal, neither party contends that the appeal before the 

Commission was limited solely to the record presented to the ZA. (See West 

Chandler Boulevard Neighborhood Assn. v. City of Los Angeles (2011) 198 

Cal.App.4th 1506, 1520, 1533 [LAMC requires appeal of a CUP decision to be 

based on the record presented to the ZA].) Thus, we do not address this 

issue, and we consider the additional evidence submitted by the parties to the 

Commission. 
9

After deliberation, the Commission unanimously found that the ZA

erred in approving the Project, because in violation of section 30233, it would 

dike, fill, or dredge wetlands. Based largely on that finding, the Commission 

further found that the project would not serve the community, but was for the 

benefit of Petitioner and its auto dealership. The Commission’s findings and 

the relevant evidence are discussed in more detail in the Discussion portion 

of our opinion, post.

5. Petition for Administrative Mandate

Petitioner petitioned the superior court for a writ of administrative 

mandate pursuant to Code of Civil Procedure section 1094.5 to set aside the 

Commission’s decision. Petitioner raised the same contentions that it now 

raises in this appeal. Following a hearing, the superior court denied the 

petition in a lengthy, well-reasoned opinion. 

DISCUSSION

Petitioner challenges the Commission’s decision to overturn the ZA’s 

grant of the CUP and Coastal Permit on three grounds: (1) the Commission 

lost jurisdiction to reverse the ZA by failing to act on the appeal within the 

period specified by LAMC, section 12.24, subdivision I.2, thereby rendering 

the ZA’s decision final by operation of law; (2) the Commission failed to make 

the requisite findings to support its decision; and (3) substantial evidence 

does not support the Commission’s determination that the Project failed to 

satisfy the requisite criteria for a Coastal Permit and CUP. We discuss and 

reject Petitioners contentions in turn. 

Our standard of review is well settled. Code of Civil Procedure section 

1094.5, the state’s administrative mandamus provision, provides the 
10

procedure for judicial review of adjudicatory decisions rendered by 

administrative agencies. (Topanga Assn. for a Scenic Community v. County of 

Los Angeles (1974) 11 Cal.3d 506, 514 (Topanga I).) “‘The question presented 

by a petition for writ of administrative mandate is whether the agency or 

tribunal that issued the decision being challenged “proceeded without, or in 

excess of, jurisdiction; whether there was a fair trial; and whether there was 

any prejudicial abuse of discretion.”’” (Lateef v. City of Madera (2020) 45 

Cal.App.5th 245, 252 (Lateef).) Under Code of Civil Procedure section 1094.5, 

“‘“[a]buse of discretion is established if the respondent has not proceeded in 

the manner required by law, the order or decision is not supported by the 

findings, or the findings are not supported by the evidence.”’” (Lateef, at p. 

252; see Code Civ. Proc., § 1094.5, subd. (b); see also Gov. Code, § 65010, 

subd. (b) [no erroneous action by public agency will be set aside by court 

unless court finds error was prejudicial].)

Where the administrative decision does not affect a fundamental vested 

right, as here, the substantial evidence standard of review governs the writ 

petition. (See Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317 [applying 

substantial evidence review to land use decisions]; Desmond v. County of 

Contra Costa (1993) 21 Cal.App.4th 330, 334–335.)

I. Jurisdictional Challenges

LAMC section 12.24 allows parties aggrieved by an initial decision of 

the ZA to appeal that decision to the Area Planning Commission within 15 

days of the mailing of that decision. (LAMC, § 12.24, subd. I.2.) That section 

further provides that “[t]he appellate body shall act within 75 days after the 

expiration of the appeal period or within any additional period mutually 

agreed upon by the applicant and the appellate body. The failure of the 
11

appellate body to adopt a resolution within this time period shall be deemed a 

denial of the appeal.” (LAMC, § 12.24, subd. I.4, italics added.) 

In this case, the appeal period expired on May 15, 2018 (on which date 

the administrative appellants timely filed their appeal). Seventy-five days 

after that date was July 29, 2018. The Commission reached its decision on 

December 5, 2018. Therefore, Petitioner contends that the Commission lost 

jurisdiction over the appeal, and the ZA’s decision became final. We conclude 

that, as argued by the City, Petitioner forfeited its right to object on this 

ground to the Commission’s decision.6

“There are essentially two kinds of jurisdictional errors with different 

consequences. ‘“Lack of jurisdiction in its most fundamental or strict sense 

means an entire absence of power to hear or determine the case, an absence 

of authority over the subject matter or the parties.” [Citation.] When a court 

lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and 

“thus vulnerable to direct or collateral attack at any time.”’ [Citation]. 

However, the phrase ‘lack of jurisdiction’ ‘may also “be applied to a case 

where, though the court has jurisdiction over the subject matter and the 

parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act 

except in a particular manner, or to give certain kinds of relief, or to act 

without the occurrence of certain procedural prerequisites.” [Citation.]

6 In rejecting this argument below, the superior court concluded that 

Petitioner and the Commission “mutually agreed” upon the continuance 

within the meaning of LAMC, section 12.24, subdivision I.4. Further, to the 

extent petitioner requested a continuance to “mid-November”—as opposed to 

December 5, 2018, the hearing date—the superior court concluded that 

Petitioner waived any objection by failing to object to the extended date. 

Because we conclude that Petitioner forfeited its right to object at all to any 

delay in the Commission’s decision, we need not decide whether Petitioner 

and the Commission “mutually agreed” to extend the applicable time period 

within the meaning of section 12.24.
12

“‘[W]hen a statute authorizes [a] prescribed procedure, and the court acts

contrary to the authority thus conferred, it has exceeded its jurisdiction.’”

[Citation.] When a court has fundamental jurisdiction, but acts in excess of 

its jurisdiction, its act or judgment is merely voidable.’ [Citation.]” (Mt. 

Holyoke Homes, LP v. California Coastal Com. (2008) 167 Cal.App.4th 830, 

840–841 (Mt. Holyoke Homes), italics added, fn. omitted.) 

A party may be precluded from seeking to set aside an act in excess of 

jurisdiction “because of waiver, estoppel, or the passage of time.” (People v. 

Ford (2015) 61 Cal.4th 282, 287 (Ford); see also People v. Tindall (2000) 24 

Cal.4th 767, 776; see also Saffer v. JP Morgan Chase Bank, N.A. (2014) 225 

Cal.App.4th 1239, 1248.) Here, the administrative appellants timely 

appealed the ZA’s approval of the project, and thus the Planning Commission 

had jurisdiction in the fundamental sense—i.e., authority over the subject 

matter and/or parties before it.7 (Mt. Holyoke Homes, supra, 167 Cal.App.4th 

at p. 841.) As such, the Commission’s failure to render its decision within 75 

days following expiration of the appeal period is, at best, an act in excess of 

jurisdiction.

8 (See Mt. Holyoke Homes, supra, 167 Cal.App.4th at p. 841.)

7 We further note that Los Angeles Municipal Code section 12.24 

provides that “[t]he filing of an appeal stays proceedings in the matter until 

the appellate body has made a decision.” (LAMC, § 12.24, subd. I.2.) This 

further confirms that the Commission had fundamental jurisdiction over this 

matter once appellants filed a timely appeal. 

8 The fact that section 12.24 expressly authorizes a waiver of this time 

limit by mutual consent between the applicant and the Planning 

Commission, further reinforces our conclusion that the expiration of the 75-

day deadline does not divest the Commission of its jurisdiction in the 

fundamental sense. (See Mt. Holyoke Homes, supra, 167 Cal.App.4th at p. 

841, fn. 7 [making same observation in reference to statute requiring 

Commission to hold hearing within specified time, but authorizing waiver of 

time limit by applicant—in light of established case law holding that 
13

In concluding that Petitioner has forfeited its right to resurrect the ZA’s 

decision because the Commission exceeded the 75-day time period specified in 

LAMC section 12.24, subdivision I.4, we find Mt. Holyoke Homes, supra,

instructive. 

In Mt. Holyoke Homes, a home developer argued that the Coastal 

Commission lost jurisdiction of a project opponent’s appeal pursuant to 

section 30621, subdivision (a) either on August 2, 1999, which was 49 days 

from the date the project opponent filed her appeal, or on January 25, 2000, 

which was 49 days from the date the developer provided the city council’s file 

to the Commission. (Mt. Holyoke Homes, supra, 167 Cal.App.4th at p. 842.)

The developer, however, did not object to the Commission’s exercise of 

jurisdiction until June 7, 2003, three and one-half years after the latest date 

on which it contended the Commission lost jurisdiction. (Ibid.) During that 

time, the developer readily provided information to the Commission in 

response to several requests. (Ibid.) The Court of Appeal concluded that the 

developer’s actions over such an extended period of time constituted consent 

to the Commission’s exercise of jurisdiction and thus the doctrines of 

estoppel, waiver, and/or invited error precluded the developer from 

challenging the Commission’s jurisdiction. (Id. at p. 844 [“While [the 

developer] may have believed it was attempting to amicably resolve the 

Commission’s concerns over its proposed three-lot subdivision and facilitate 

approval of its project, it nevertheless had an obligation to contest the 

Commission’s jurisdiction promptly after the date on which it contends the 

Commission lost it”].) 

fundamental jurisdiction cannot be conferred by consent, waiver or estoppel].) 

Indeed, Petitioner in its opening brief argues the Commission’s “belated 

action to grant the appeal occurred in excess of its jurisdiction.” (Italics 

added.) 
14

The same reasoning applies here, but with more force. In proceedings 

before the Commission, petitioner never objected that the 75-day period of 

LAMC, section 12.24, subdivision I.2 expired on July 29, 2018. To the 

contrary, on July 30, 2018, Petitioner’s counsel sent a letter to the 

Commission seeking a continuance of the hearing scheduled for August 1, 

2018, to allow Petitioner to address the issues raised by the administrative 

appellants. At the hearing on August 1, 2018, Petitioner’s counsel asked for a 

continuance “for three months to mid-November.” The purpose was to 

prepare and submit a wetland delineation study under the criteria used by 

the California Coastal Commission. Over the objection of the administrative 

appellants, the Commission granted Petitioner’s request and continued the 

hearing to December 5, 2018. Petitioner appeared without objection at the 

hearing, presented its new evidence to the Commission, and (without 

objection based on LAMC, § 12.24, subd. I.4) lost on the merits. 

Thus, petitioner was not merely silent during the contested period as 

was the developer in Mt. Holyoke. To the contrary, Petitioner encouraged 

and took advantage of the delay until the date of the dispositive hearing. Not 

until Petitioner sought to challenge the Commission’s decision by petition for 

writ of administrative mandate did it, for the first time, object that the 

Commission had lost jurisdiction on July 29, 2018. 

“Such conduct amounts to an unacceptable trifling with a public agency 

and the courts.” (Mt. Holyoke Homes, supra, 167 Cal.App.4th at p. 845; cf. 

People v. Kennedy (2005) 36 Cal.4th 595, 612; disapproved on other grounds 

in People v. Williams (2010) 49 Cal.4th 405, 458–459 [“[T]he forfeiture rule 

ensures that the opposing party is given an opportunity to address the 

objection, and it prevents a party from engaging in gamesmanship by 

choosing not to object, awaiting the outcome, and then claiming error”].)
15

In its briefing before this court, Petitioner cites a string of cases to 

support its loss-of-jurisdiction claim, including Tran v. City of Los Angeles

(2022) 74 Cal.App.5th 154; 1305 Ingraham, LLC v. City of Los Angeles (2019) 

32 Cal.App.5th 1253, 1256; Mumaw v. City of Glendale (1969) 270 Cal.App.2d 

454; Harris v. Alcoholic Bev. etc. Appeals Bd. (1963) 223 Cal.App.2d 563; 

Napa Savings Bank v. Napa County (1911) 17 Cal.App. 545. We first note 

that petitioner presented none of these cases to the superior court. 

Regardless, none of Petitioner’s cases discusses forfeiture of the right to 

challenge administrative decisions made in excess of jurisdiction. Rather, 

they turn on the question whether the challenged deadline identified by 

statute or municipal code is mandatory or discretionary. (See People v. 

Knoller (2007) 41 Cal.4th 139, 155 [“‘“An opinion is not authority for 

propositions not considered”’”].) Moreover, as observed in Mt. Holyoke

Homes, the question whether the right to raise an administrative time limit 

is forfeited does not turn on whether the time limit is mandatory in nature, 

but whether the violation at issue implicates a tribunal’s fundamental 

jurisdiction or is simply an act in excess of that jurisdiction. (See Mt. Holyoke

Homes, supra, 167 Cal.App.4th at p. 841; see also California Correctional 

Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1147 

[“[w]hen the Legislature has specified a time within which an administrative 

board is to render a decision, that time limit may be mandatory in the

obligatory sense, but this ‘does not necessarily mean that a failure to comply 

with its provisions causes a loss of jurisdiction’”]; cf. People v. Allen (2007) 42 

Cal.4th 91, 101–105 [time provision held mandatory but its violation did not 

deprive court of fundamental jurisdiction].) To the extent Petitioner points 

out that LAMC section 12.24 expressly sets forth a consequence for the 

failure to timely act on the appeal (i.e., that the failure to act “shall be 
16

deemed a denial of the appeal,” per subd. I.4), so too did the statute(s) at 

issue in Mt. Holyoke Homes. (Mt. Holyoke Homes, supra, 167 Cal.App.4th at 

pp. 835–836, fn. 4 [noting that pursuant to § 30625, the consequence for 

failure to hold a timely hearing—as required by § 30621—is that the appeal 

“‘shall become final, unless the time limit . . . is waived by the applicant’”].) 

As such, Petitioner's attempt at distinguishing Mt. Holyoke Homes falls short. 

Petitioner also argues that it could not have “knowingly” waived its 

objection to the Commission’s jurisdiction because it was unaware of the 

consequences of that waiver. However, as the court found in Mt. Holyoke 

Homes, “[e]stoppel [to challenge jurisdiction] in this context is more akin to 

acquiescence or a forfeiture, which is ‘a failure to object or to invoke a right,’

not the ‘express relinquishment of a right or privilege.’” (Id. at p. 844, citing 

In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1; cf. Ford, supra, 61 Cal.4th 

at p. 288 [“We have long recognized that a failure to object can constitute 

implied consent to an act in excess of the court’s jurisdiction”]; Harrington v. 

Superior Court (1924) 194 Cal. 185, 188–189 [“if the court has jurisdiction of 

the subject matter, . . . a party may voluntarily submit himself to the 

jurisdiction of the court, or may, by failing to seasonably object thereto, waive 

his right to question jurisdiction”].)

In short, Petitioner never sought to invoke the 75-day deadline in 

proceedings before the Commission, and obtained exactly what it wanted: a 

new hearing date on which to present its new evidence to the Commission. 

Under these circumstances, petitioner should not be heard to complain.

In a related contention, Petitioner argues that the Commission’s 

decision was faulty because it did not take the form of a formal “resolution.”

By its literal terms, section 12.24 of the Los Angeles Municipal Code states 

that “[t]he failure of the appellate body to adopt a resolution within [the 
17

specified 75 day] time period shall be deemed a denial of the appeal.” 

(LAMC, § 12.24, subd. I.4, italics added.) In contrast, as we explain in more 

detail in section II of our Discussion, post, the Commission unanimously 

approved a formal motion by Commissioner Walz-Morocco to grant the appeal 

and incorporated several findings.

The superior court rejected this argument on the ground that the 

Commission did, in fact, act on December 5, 2018, by taking a vote of all 

members of the Commission on the motion to grant the appeal. As the trial 

court pointed out, “Petitioner’s narrow focus on the term ‘resolution’ in LAMC 

section 12.24.I elevates form over substance and ignores the manner in which 

[Planning Commission] decisions are routinely recorded.” We cannot say it 

any better. (See West Los Angeles Area Planning Commission, Rule 9.1, 

describing an “action” of the commission as a motion that is seconded and 

voted upon]; cf. Bel Mar Estates v. California Coastal Com. (1981) 115 

Cal.App.3d 936, 940 [characterizing challenge to lack of “formal vote” on 

continuance by Commission as “frivolous” in light of record demonstrating 

continuance was agreeable to all members of Commission].)9

II. Adequacy of the Commission’s Findings

Petitioner contends that the Planning Commission failed to make 

adequate findings in violation of the relevant provisions of the LAMC and 

Topanga I, supra, 11 Cal.3d 506 and We disagree. 

9 Moreover, Petitioner shows no prejudice from the Commission’s 

procedure of voting on a motion, as opposed to approving a resolution. (Code 

Civ. Proc., § 1094.5, subd. (b); Thornbrough v. Western Placer Unified School 

Dist. (2013) 223 Cal.App.4th 169, 200 [a court will not issue a writ of 

administrative mandate unless the petitioner shows that the agency’s alleged 

error “‘prejudicially affect[ed] the petitioner’s substantial rights’”]; cf. 

Mattison v. City of Signal Hill (1966) 241 Cal.App.2d 576, 584 [“technical 

noncompliance with some of the procedural rules” does not compel reversal 

unless prejudicial].)
18

A. LAMC Requirements

Depending on whether the appeal is of the granting of a CUP or a 

Coastal Permit, the LAMC imposes similar, although slightly different, 

requirements on the appellate body’s decision. In an appeal of a Coastal 

Permit decision, “[a]ction on any appeal shall be in writing, and if the appeal 

is granted, in whole or in part, such decision shall set forth wherein the 

permit granting authority, or the lower appeal body erred in its action on the 

permit under the criteria set forth in Section 12.20.2 G.l(a) through (e).” 

(LAMC, § 12.20.2, subd. H.4.) 

In an appeal of a CUP decision, “the appellate body shall make its 

decision, based on the record, as to whether the initial decision-maker erred 

or abused his or her discretion.” (LAMC, § 12.24., subd. I.3.) The appellate 

body may reverse or modify the decision of the ZA, and “any resolution to 

approve must contain the same findings required to be made by the initial 

decision-maker, supported by facts in the record.” (LAMC, § 12.24, subd. I.5.)

B. Topanga I

In Topanga I, supra, 11 Cal.3d 506, our Supreme Court held that 

“implicit in . . . section 1094.5 is a requirement that the agency which renders 

the challenged decision must set forth findings to bridge the analytic gap 

between the raw evidence and ultimate decision or order.” (Id. at p. 515.) 

The findings must be sufficient “both to enable the parties to determine 

whether and on what basis they should seek review and, in the event of 

review, to apprise a reviewing court of the basis for the [administrative] 

action.” (Id. at p. 514.) However, “[a]dministrative agency findings are 

generally permitted considerable latitude with regard to their precision, 
19

formality, and matters reasonably implied therein.” (Southern Pacific

Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 

954; see also Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421 [An 

agency’s findings “‘do not need to be extensive or detailed’” and “‘are to be 

liberally construed to support rather than defeat the decision under review’”.) 

Accordingly, the agency’s findings may “‘be determined to be sufficient if a 

court has “no trouble under the circumstances discerning ‘the analytic route 

the administrative agency traveled from evidence to action.’” (West Chandler 

Boulevard Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th 

1506, 1521–1522 (West Chandler).) 

C. The Commission’s Findings

At the December 5, 2018 hearing, each member of the Commission 

expressed his or her view on the appeal. Commissioner Waltz Morocco then 

made a formal motion to grant the appeal and proposed several findings that 

explained the errors made by the ZA in granting the Coastal Permit and the 

relevant findings for overturning the ZA’s grant of the CUP. 

As to the Coastal Permit, the errors cited in the motion included that 

the ZA’s decision was (1) “is in violation of the Coastal Act 30233, which 

prohibits diking, filling, or dredging of any wetland”; (2) “in violation of the 

Coastal Act 30240(b) which talks about degrading adjacent sensitive habitats 

and areas, specifically the Ballona Wetlands” and (3) in violation of “Coastal 

Act 30242, which talks about converting land that is suitable for agriculture 

to a nonagricultural use. There’s been no evidence in the materials that I’ve 

seen that an agricultural use is not feasible here.”

With respect to the CUP, Commissioner Waltz Morocco offered the 

following flaws in the ZA’s findings: (1) “the project will not enhance the built 
20

environment in the surrounding neighborhood”; (2) “it will not perform a 

function or provide a service that is essential or beneficial to the community”

because “[t]his parking lot is basically for [the] use of Toyota”; (3) “the 

project’s location, size, height, operations, and other significant features . . . 

will adversely affect or further degrade adjacent properties, surrounding 

neighborhoods, or public health and welfare and safety. Meaning that if you 

build a parking lot and you’re paving over a wetland, you’re going to be 

changing the . . . environment, you’re going to be taking down trees, and that 

will affect the people who live very close to this area”; and (4) “the proposal of 

this project [is] counter to the General Plans, policies.” (LAMC, § 12.24, subd. 

E [necessary findings to grant CUP]; § 12.20.2 [CDP requirements].) The 

motion passed by a unanimous vote. 

As additional findings, the Commission also incorporated the 

Commissioners’ deliberation as reflected in the December 5 hearing 

transcript, (Harris v. City of Costa Mesa (1994) 25 Cal.App.4th 963, 971 [“‘In 

addition to the findings stated in the council’s resolution, we look to the 

transcript of the hearing for statements made by the council members. It is 

proper to look for findings in oral remarks made at a public hearing at which 

both parties were present, which was recorded and of which a written 

transcript could be made’”]; see also Code Civ. Proc., § 1094.6 [contemplating 

a transcript in the record].) 

On December 19, 2018, the Commission issued written minutes from 

the December 5, 2018 meeting that were stamped “Adopted” and signed by 

Commission President, Michael Newhouse. The minutes state that the 

Commission approved Waltz Morocco’s motion, granted the appeal, and 

adopted findings “as stated on the record by the Commission.”
21

D. Adequacy of the Findings

The Commission’s findings certainly satisfied the LAMC requirements. 

As required by LAMC section 12.20.2, subdivision H.4, in reversing the ZA’s 

grant of the Coastal Permit, the Commission’s decision “set forth wherein . . . 

[the ZA] erred in its action on the permit under the criteria set forth in 

Section 12.20.2G.l, [subds.] (a) through (e).” The granting of a coastal Permit 

requires a finding, inter alia, that the proposed development conforms with 

Chapter 3 of the Coastal Act. (LAMC, § 12.20.2, subd. G.1.) The ZA found 

that the Project met this requirement. In the administrative appeal, the 

Commission found that the ZA erred by finding that the Project conforms 

with Chapter 3 of the Coastal Act because the project would: (1) require 

diking, filling, or dredging of wetlands in violation of section 30233, 

(2) degrade the nearby Ballona Wetlands in violation of section 30240, 

subdivision (b), and (3) convert land suitable for agriculture in conflict with 

section 30242. 

Further, as required LAMC section 12.24, subdivision I.5, the 

Commission reversed the ZA’s grant of the CUP by making “the same 

findings required to be made by the initial decision-maker.” Pursuant to 

section 12.24 of the Los Angeles Municipal Code, the ZA lacked discretion to 

approve the conditional use permit unless it could affirmatively find: (1) “that 

the project will enhance the built environment in the surrounding 

neighborhood or will perform a function or provide a service that is essential 

or beneficial to the community, city, or region”; (2) “that the project’s location, 

size, height, operations and other significant features will be compatible with 

and will not adversely affect or further degrade adjacent properties, the 

surrounding neighborhood, or the public health, welfare, and safety”; and (3) 

“that the project substantially conforms with the purpose, intent and 
22

provisions of the General Plan, the applicable community plan, and any 

applicable specific plan.” (LAMC, § 12.24, subd. E.) 

The Commission’s findings tracked these requirements. The 

Commission found that the Project would: (1) not enhance the built 

environment or benefit the community; (2) degrade the adjacent properties 

and nearby Ballona Wetlands; and (3) conflict with the General Plan. 

Similarly, the Commission’s findings were sufficient under Topanga to 

“enable the parties to determine whether and on what basis they should seek 

review.” (Topanga I, supra, 11 Cal.3d at p. 514.) Topanga does not bar an 

agency from stating its findings in the language of the applicable zoning

ordinance, nor oblige the agency to support them with subfindings. (See

Young v. City of Coronado, supra, 10 Cal.App.5th at pp. 421–423; Levi Family 

Partnership, L.P. v. City of Los Angeles (2015) 241 Cal.App.4th 123, 130–133.) 

Nevertheless, relying on our decision in West Chandler, supra, 198 

Cal.App.4th 1506, Petitioner insists that “the [Commission] here made the 

same mistake that the City Council did in West Chandler” by “paying only lip 

service to its standard of review without specifying how the [Zoning 

Administrator] supposedly erred in making his [Coastal Permit] and 

[Conditional Use Permit] findings.” But the findings discussed above explain 

specifically how the ZA erred, and there is no doubt how that error occurred.

In the proceeding before the ZA, Petitioner’s environmental consultants used 

the wrong wetland identification method (the definition of wetlands under 

the federal USACE criteria/Clean Water Act rather than the definition under 

the California Coastal Act) and erroneously concluded that no wetlands 

existed on the site. This, in turn, resulted in the erroneous conclusion of the 

ZA that the Project complied with Chapter Three of the Coastal Act. (Cf. In 

re Charlisse C. (2008) 45 Cal.4th 145, 159 [“a disposition that rests on an 
23

error of law constitutes an abuse of discretion”].) Further, it also formed the 

basis for the Commission’s findings reversing the grant of the CUP. 

This case is a far cry from our decision in West Chandler. In that case, 

the real party in interest applied for a CUP and a parking variance to 

demolish a one-story synagogue and build in its place a 16,100 square-foot 

three-story synagogue. (West Chandler, 198 Cal.App.4th at p. 1510.) The ZA

approved the CUP, but limited the facility to 10,300 square feet and the 

assembly space to 2,400 square feet, and required 40 percent of the square 

footage to be at basement level. (Ibid.) Both the real party in interest and 

the West Chandler Boulevard Neighborhood Association appealed the 

decision to the planning commission, which granted the neighborhood 

association’s appeal and effectively blocked the project. (Id. at pp. 1511–

1512.)

Subsequently, the Los Angeles City Council voted to assert jurisdiction 

over the planning commission’s decision. (West Chandler, supra, 198 

Cal.App.4th at pp. 1511–1512.) At the city council hearing, after the public 

comment portion was closed, one councilmember set forth a new 

“compromise” proposal and circulated it to the other council members, who 

voted to approve it and deny the neighborhood association’s appeal. (Id. at p. 

1511.) The proposal approved by the city council granted a conditional use 

permit to build a 12,000-square-foot building, with 20 percent of the building 

in the basement. (Ibid.) The assembly space was now 3,370 square feet 

instead of 2,400 square feet. (Ibid.) The trial court denied the neighborhood 

association’s petition for writ of mandate, holding that the city council’s 

decision was supported by substantial evidence. (Id. at p. 1512.)

On appeal, we reversed, holding that the city council failed to set forth 

“how the zoning administrator erred” as required by LAMC sections 12.24 
24

and 12.27. (West Chandler, supra, 198 Cal.App.4th at p. 1520.) Instead the 

city council focused on the new “compromise” proposal, with no indication of 

why this “compromise” proposal was necessary to remedy any errors by the 

ZA. (Id. at p. 1522.) We further observed that, “[e]ven if implicit findings of 

error may in some circumstances be sufficient, here the city council made no 

findings of error by the zoning administrator, either explicit or implicit. . . .

[T]he city council did not even mention the zoning administrator’s findings in 

its decision.” (Id. at p. 1521, italics added.) 

Unlike in West Chandler, the Commission here did not adopt a proposal 

different from the one considered by the zoning administrator, nor did it fail 

to address the evidence before the ZA. Instead, the Commission identified 

the relevant factors for each permit, and stated on the record the reasons why 

the ZA erred in its determination, including that the ZA erroneously 

determined that no wetlands existed, which impacted the criteria for both the 

Coastal Permit and the CUP. (See Section III, post.) Accordingly (and as 

further evidenced by our discussion in Section III, post), the Commission’s 

findings demonstrate “the analytic route the [Commission] traveled from 

evidence to action.”

10 (West Chandler, supra, 198 Cal.App.4th at pp. 1521–

1522.)

10 On August 7, 2019, after Petitioner filed its writ petition in the 

superior court, the Planning Commission issued a “Corrected Letter of 

Determination” and “amended” findings on the appeal, memorializing its 

decision on the Coastal and Conditional Use Permits. The superior court 

determined that the August 2019 written findings, “adopted eight months 

after the [Commission] took action . . . are not the operative findings and 

should not be considered by the court,” but found the December 5, 2018 

findings on the hearing transcript compliant with the relevant standards. 

Since we agree that the December 5, 2018 findings, adopted by minute order 

on December 19, 2018, are adequate, we need not consider the August 2019 

letter. 
25

III. Substantial Evidence

Petitioner contends the Planning Commission’s findings denying the 

CUP and Coastal Permit are not supported by substantial evidence. 

Petitioner’s contentions, the bulk of which simply ask us view the record in 

the light most favorable to Petitioner, are meritless. 

“The substantial evidence rule requires the trial court to start with the 

presumption that the record contains evidence to sustain every finding of 

fact” and “[t]he burden is upon the appellant to show there is no substantial 

evidence whatsoever to support the findings.” (Pescosolido v. Smith (1983) 

142 Cal.App.3d 964, 970.) In addition, when an appellant challenges “‘the 

sufficiency of the evidence, all material evidence . . . must be set forth and not 

merely [its] own evidence.’” (Toigo v. Town of Ross, supra, 70 Cal.App.4th at 

p. 317.)

A. The Coastal Permit

The granting of a Coastal Permit requires a finding, inter alia, that the 

proposed development conforms with Chapter 3 of the California Coastal Act. 

(LAMC, § 12.20.2, subd. G.1.) Because the Commission determined that this 

requirement was not met, and because that finding alone is adequate to 

uphold the Commission’s decision, we focus on that finding and need not 

discuss other findings made by the Commission.

1. Wetlands Development

Chapter 3 of the Coastal Act includes section 30233, which provides in 

relevant part: “(a) The diking, filling, or dredging of . . . wetlands . . . shall be 
26

permitted in accordance with other applicable provisions of this division, 

where there is no feasible less environmentally damaging alternative, and 

where feasible mitigation measures have been provided to minimize adverse 

environmental effects, and shall be limited to the following.” The section then 

lists seven types of developments in which the diking, filling, or dredging of 

wetlands is permitted.11 A parking lot, such as that proposed by the Project, 

does not fall under any of the permitted categories.

12 As such, the Coastal 

Act plainly prohibits the type of development proposed by the Project in 

wetlands under any circumstances. (§ 30233, subd. (a); Bolsa Chica Land 

11 Section 30233, subdivision (a), provides in full: 

“The diking, filling, or dredging of open coastal waters, wetlands, estuaries, 

and lakes shall be permitted in accordance with other applicable provisions of 

this division, where there is no feasible less environmentally damaging 

alternative, and where feasible mitigation measures have been provided to 

minimize adverse environmental effects, and shall be limited to the following:

“(1) New or expanded port, energy, and coastal-dependent industrial 

facilities, including commercial fishing facilities.

“(2) Maintaining existing, or restoring previously dredged, depths in existing 

navigational channels, turning basins, vessel berthing and mooring areas, 

and boat launching ramps.

“(3) In open coastal waters, other than wetlands, including streams, 

estuaries, and lakes, new or expanded boating facilities and the placement of 

structural pilings for public recreational piers that provide public access and 

recreational opportunities.

“(4) Incidental public service purposes, including, but not limited to, burying 

cables and pipes or inspection of piers and maintenance of existing intake 

and outfall lines.

“(5) Mineral extraction, including sand for restoring beaches, except in 

environmentally sensitive areas.

“(6) Restoration purposes.

“(7) Nature study, aquaculture, or similar resource-dependent activities.”

(§ 30233, subd. (a).)

12 Petitioner does not claim otherwise. 
27

Trust v. Superior Court (1999) 71 Cal.App.4th 493, 511 (Bolsa Chica), 

disapproved on another ground in Dhillon v. John Muir Health (2017) 2 

Cal.5th 1109, 1116, fn. 2.)

Wetlands are defined in the Coastal Act as “lands within the coastal 

zone which may be covered periodically or permanently with shallow water 

and include saltwater marshes, freshwater marshes, open or closed brackish 

water marshes, swamps, mudflats, and fens.” (§ 30121.) The applicable 

administrative regulations further define a wetland as “land where the water 

table is at, near, or above the land surface long enough to promote . . . the 

growth of hydrophytes.”

13 (Cal. Code Regs., tit. 14, § 13577, subd. (b)(1).) 

There are several methods of identifying wetlands, but only one that is 

permissible in the Coastal Zone. According to the Coastal Commission, a 

wetland must have one or more the following three attributes: (1) at least 

periodically, the land supports predominantly hydrophytes [i.e., wetland 

plants]; (2) the substrate is predominantly undrained hydric soil [i.e., 

wetland soil]; and (3) the substrate is nonsoil and is saturated with water or 

covered by shallow water at some time during the growing season of each 

year [i.e., wetland hydrology]. (Kirkorowicz v. California Coastal Com. (2000) 

83 Cal.App.4th 980, 988 [applying Coastal Commission interpretive 

guidelines] (Kirkorowicz).) 

In other words, the Coastal Commission employs a “one-parameter”

approach, by which the satisfaction of any of these criteria indicates the 

presence of a wetland. This contrasts with the approach employed by federal 

agencies to delineate wetlands (a “three-parameter” approach), in which all 

three criteria must be satisfied. (Kirkorowicz, supra, 83 Cal.App.4th at pp. 

13 “A hydrophyte is ‘a plant growing in water or in soil too waterlogged for 

most plants to survive.’” (Dunn v. County of Santa Barbara (2006) 135 

Cal.App.4th 1281, 1293, fn. 3 (Dunn).) 
28

989, fn. 9 & 990 [“evidence that hydrophytes exist on a property to a degree 

permitting jurisdictional wetland determination renders unnecessary any 

additional evidence of wetland hydrology or hydric soils”].)

Finally, “the Coastal Act by its definition of wetland (§ 30121) does not 

distinguish between wetlands according to their quality. Indeed, section 

30233 limits development in all wetlands without reference to their quality. 

This is so because of the dramatic loss of over 90 percent of historical 

wetlands in California and their critical function in the ecosystem.” 

(Kirkorowicz, supra, 83 Cal.App.4th at p. 994.) 

2. Noncompliance with the California Coastal Act

The evidence amply supports the Commission’s finding that the Project 

does not comply with Chapter 3 of the California Coastal Act, because it 

would dike, fill, or dredge wetlands in violation of section 30233. 

First, the Coastal Commission Planning Supervisor emailed the City’s 

Department of Planning on July 27, 2018, to notify the City that the Coastal 

Commission considers the property to be within the dual zone “because of the 

presence of a stream/wetland on the properties which has been referred to as 

a drainage ditch.” (Italics added.) The letter also informed the City that 

“[t]he extent of the wetlands on the sites will need to be determined by a 

qualified ecologist as part of the coastal development permit application 

process (i.e., wetland delineation).”

Second, biologist Roy Van de Hoek, who personally surveyed the 

Property on June 24, and July 7, 2018, identified 14 distinct wetlands on the 

“East Site” (easterly of Mindanao Way),14 using “the one parameter 

14 This is the area identified in the second MND as “a drainage feature on 

the East Site [that] appears to have been excavated as part of the Marina 
29

determination of preponderance and predominance of wetland vegetation[.]”

15 

He further found that these areas had “greater than 50% predominance—in 

all cases 80-99%.” Van de Hoek’s report was supported by the photographic 

evidence and scientific data, including the GPS coordinates, for every wetland 

he found. 

Citing the Guidelines from the United States Fish and Wildlife Service, 

Van de Hoek defined the five categories of plant species used in wetland 

delineations: Obligate Wetland Plants (OBL), Facultative Wetland Plants 

(FACW); Facultative Plants (FAC); Facultative Upland Plants (FACU); and 

Upland Plants (UPL). He noted that the upland plants “almost never occur 

in wetlands,” while the other four categories range from “clear wetland 

indicator,” i.e., “obligate” to “may occur in wetlands,” i.e., “facultative upland 

plants.” In his survey of the Property, Van de Hoek identified where he 

found the first categories of plants, including obligates and facultative 

wetlands plants, which are strong evidence of the presence of wetland.16 

Expressway construction, as opposed to being a natural feature, and the 

drainage features on both project sites appear to only drain the surrounding 

urban areas. . . . As such, the project would not have any effect on federally 

protected wetlands as defined by Section 404 of the Clean Water Act.” 

Petitioner’s experts also identified this area, characterizing it as the “ditch 

[that] runs the length of the East Site” and “is channelized with defined bed 

and banks.”

15 Several of the wetlands were marked by all three criteria: hydrology 

(standing water), hydric soil, and dominant hydrophytic plant species. 

Notably, Van de Hoek observed several instances of obvious ponded water in 

the soft-bottom swale despite no rain having fallen in the several months 

before his inspection. 

16 Petitioner contends that Van de Hoek lacked sufficient expertise to 

provide any opinion on the issue. The argument is frivolous. Van de Hoek 

has degrees in environmental biology and geography; completed an 
30

Third, despite Petitioner’s contentions to the contrary, the evaluations 

of Petitioner’s own environmental consultants support the conclusion that the

Property contains wetlands. The report prepared by Petitioner’s experts

described the same five categories of plant species as Van de Hoek and 

acknowledged that if the “dominance test” is met, the one-parameter test 

used by the California Coastal Commission for the presence of wetlands is 

satisfied. 

Petitioner’s expert report acknowledged the following: “Native FACW 

species occurring in the ditch include an arroyo willow patch, a few scattered 

individual tentative lovegrass flatsedge, and western goldenrod patches. 

Based on their wetland plant indicator status, these areas may be considered 

wetlands by the CCC [California Coastal Commission]. The arroyo willow 

patch and western goldenrod patches are relatively large and dominate the 

area they cover (i.e., coverage is over 50 percent of their immediate area). 

Based on a one-parameter approach, these areas would be considered 

wetlands by the CCC.” The report further found that: “mule fat occurs in 

uplands in the vicinity of the survey area . . . . [T]he soil test pit containing 

hydric soils was dug in an area dominated by mule fat. Given this 

association, these areas would be considered wetlands by the CCC.” 

Fourth, the MND circulated by the City prior to the December 5, 2018 

hearing before the Planning Commission stated that “the Project will impact 

approximately 0.071 acre of CCC jurisdiction.” The MND proposed to avoid a 

environmental horticultural science certificate; completed post-graduate 

coursework in hydrological sciences and geography; and completed 

coursework in wetlands science. He worked as a wildlife biologist, botanist, 

archeologist, and stream hydrologist for the federal government—the United 

States Interior Department and United States Forest Service—for 10 years. 

He also worked for the County of Los Angeles as Natural Area Supervisor 

and Director for the Nature Center on Catalina Island. 
31

small portion of the wetlands, while transplanting the remainder and 

creating a new wetland habitat. However, this type of mitigation is not 

permitted: the unauthorized destruction of a wetland (i.e., diking, dredging, 

or filling) cannot be mitigated by restoring a wetland elsewhere. (Bolsa 

Chica, supra, 71 Cal.App.4th at p. 513; Kirkorowicz, supra, 83 Cal.App.4th at 

p. 987.)

In short, substantial evidence supports the Commission’s findings that 

the Project does not comply with Chapter 3 of the Coastal Act, because it 

would dike, fill, or dredge wetlands in violation of section 30233. Petitioner’s 

contentions to the contrary amount to no more than requests for this court to 

reweigh the evidence, which we will not do. To the extent Petitioner also 

argues that “the Property is not in fact substantially composed of wetlands,” 

the point is immaterial—the Coastal Commission prohibits the destruction of 

any wetland, regardless of size. (See Kirkorowicz, supra, 83 Cal.App.4th at p. 

994 [prohibiting construction project even though only a small portion of the 

property contained wetlands that would be directly impacted by project]; see 

also Dunn, supra, 135 Cal.App.4th at p. 1285 [denying application to 

subdivide six acres in light of “two artificially created wetlands totaling 

approximately one-fifth of an acre”].) 

B. The CUP

The Commission’s findings denying the CUP are likewise supported by 

substantial evidence. First, it is clear from the Commission’s findings that 

the wetland delineation changed the calculus of the CUP determination as 

well. In initially approving the project, the ZA stated “[t]he project will also 

be beneficial to the community by improving drainage on the site” in that 

“the project will replace an existing soft-sided, soft-bottomed open storm 
32

drain with concrete-lined open storm drain leading to a flow-through 

planter.” Given that the “drainage ditch” was established to contain 

wetlands, the Commission could reasonably conclude that the ZA erred in its 

determination and that there would be no benefit in replacing wetlands with 

a “concrete-lined” storm drain. The Commission could further find that 

paving over wetlands would be incompatible with the surrounding 

community and to the welfare of the environs. To the extent the ZA found 

that the project would be beneficial to the community because it would add 

“security and low level lighting to prevent trespassing, dumping and other 

nuisances on the site,” the Commission could reasonably reject this 

determination, as Petitioner has a duty to ensure its Property does not pose a 

nuisance to its neighbors, regardless of whether the City allows it to build a 

parking lot. Further, the Project was not intended to serve as a public 

parking facility, but as inventory storage and employee parking for 

Petitioner’s Toyota dealership. 

In short, the Commission could reasonably conclude that, unlike 

commercial developments that offer services to the public, the Project merely 

serves the convenience of a single owner and is not “essential or beneficial to 

the community.” 

On appeal, Petitioner argues the Commission’s findings are “directly 

contradicted by the record.” However, Petitioner merely points to the 

evidence it believes supports the ZA’s determination and/or its own position. 

Having examined the administrative record as a whole, and indulging all 

presumptions in favor of the agency’s decision, we conclude the Commission’s 

decision is supported by substantial evidence. (Donley v. Davi (2009) 180 
33

Cal.App.4th 447, 456; Sierra Club v. California Coastal Com. (1993) 12 

Cal.App.4th 602, 610.)17

DISPOSITION

The judgment of the superior court denying the petition for writ of 

administrative mandamus is affirmed. 

The City is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS, J

CURREY, J.

17 Petitioner also challenges the Commission’s alternate finding that that 

the project would require preparation of an Environmental Impact Report 

(EIR) because there is a fair argument it would significantly impact the 

environment. However, as noted by Respondent, Petitioner failed to raise 

this issue before the trial court, and it is therefore deemed forfeited. (See 

World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 

172 Cal.App.4th 1561, 1569.) Petitioner does not contend otherwise in its 

reply brief. (See Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 

90 [concluding appellants made an implicit concession by “failing to respond 

in their reply brief to the [respondent’s] argument on th[at] point”].) 

Moreover, in light of the Commission’s denial of the Project, any CEQArelated finding is no longer relevant. (Las Lomas Land Co., LLC v. City of 

Los Angeles (2009) 177 Cal.App.4th 837, 848 [“CEQA applies only to projects 

that a public agency proposes to carry out or approve, and does not apply to 

projects that the agency rejects or disapproves”], citing § 21080, subds. (a), 

(b)(5).)