Modification: Sweeney v. San Francisco Bay Conservation

JOHN D. SWEENEY et al.,

Plaintiffs and Respondents,

v.

SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION et al.,

Defendants and Appellants.

No. A153582

(Solano County Super. Ct. No. FCS048136)

California Courts of Appeal

First Appellate District

Division Three

Filed April 14, 2021

ORDER MODIFYING OPINION;

NO CHANGE IN JUDGMENT

BY THE COURT:

It is ordered that the opinion filed herein on February 18, 2021, be further modified as follows:

At page 3, in the final statutory citation in the paragraph that begins on page 2, "66637" is deleted, and "66638" is inserted in its place.

At page 3, in the case citation at the end of the first full paragraph, "see also (Sustainability" is deleted, and "see also Sustainability" is inserted in its place.

At page 7, in the second citation in the first full paragraph, "Pub. Resources Code, § 29601" is deleted, and "Pub. Resources Code, § 29602" is inserted in its place.

At page 9, in the last citation of the paragraph that begins on page 8, "29520" is deleted, and "29501, subd. (b)" is inserted in its place.

At page 9, the second sentence of the first full paragraph is revised to read: "The trial court set aside the BCDC Order because it found Respondents were exempt from the marsh development permit requirement based on the "repair exception" in Public Resources Code section 29508, subdivision (b) (Section 29508(b)) and the exception for work consistent with a site's component of the local protection program in Public Resources Code section 29501.5 (Section 29501.5)."

At page 11, the first full sentence on the page is revised to read: "Under this provision, work undertaken at a site that is consistent with a site's component of the local protection program, or IMP, does not require a marsh development permit."

At page 11, the first sentence of the first full paragraph is revised to read: "The parties agree that the Site's component of the local protection program is the Mason IMP that was certified in 1984."

At page 12, the last sentence of the first full paragraph is revised to read: "Many, if not most, of Sweeney's changes had no reasonable connection to the management contemplated in the Mason IMP, and thus were inconsistent with the Site's component of the local protection program."

At page 13, the fifth sentence of the second full paragraph is revised to read: "BCDC's Enforcement Committee determined that the placement of fill to close each of the tidal breaches of the former levee should be treated as single violation rather than seven and on this basis reduced the proposed penalty to $772,000, which was the penalty ultimately adopted by BCDC."

At page 14, in the first sentence of the second full paragraph, "Mc-Ateer Petris" is deleted, and "McAteer-Petris" is inserted in its place.

At page 16, the fourth sentence of the first full paragraph is revised to read: " "In determining whether the decision is supported, we require findings to 'bridge the analytical gap between the raw evidence and ultimate decision or order.' "

At page 21, in the first citation in the paragraph that begins on page 20, "11332" is deleted, and "11322" is inserted in its place.

At page 24, in the third citation in the third full paragraph, "11227" is deleted, and "11327" is inserted in its place.

At page 25, in the first citation on the page in the paragraph that begins on page 24, "11229" is deleted, and "11329" is inserted in its place.

At page 27, in the paragraph that begins on page 26, the bracketed statement following the citation to Pleasanton, supra, 211 Cal.App.4th at p. 533, is revised to read: "[no authority says "agency decisionmaking body is precluded from soliciting or receiving a written analysis and recommendation from the agency's prosecuting attorney delivered to it as part of a public agenda packet along with the adversary's opposing analysis and recommendation"]"

At page 29, the third sentence in the second full paragraph is revised to read: "There is no requirement that hearings last for any particular amount of time (see Cal. Code Regs., tit. 14, § 11327), and reasonable time limitations are necessary and inevitable."

At page 30, in the first citation on the page in the paragraph that begins on page 29, "11335" is deleted, and "11332" is inserted in its place.

Fujisaki, Acting P.J.