Modification: Riddick v. City of Malibu

JASON RIDDICK et al.,

Plaintiffs, Cross-Complainants, and Respondents,

v.

CITY OF MALIBU et al.,

Defendants, Cross-Defendants, and Appellants.

No. B323731

(Los Angeles County Super. Ct. No. 21SMCP00655)

California Court of Appeal

Second Appellate District

Division Five

Filed February 22, 2024

ORDER MODIFYING

OPINION AND DENYING

PETITION FOR

REHEARING

[NO CHANGE IN JUDGMENT]

Pursuant to California Rules of Court, rule 8.264(c), it is ordered that the opinion filed on February 1, 2024, is modified as follows:

1. On page 4, section B, in the first sentence of the second paragraph, after "plaintiffs," add the next chronological footnote:

Among other documents in support of their application, plaintiffs submitted a December 7, 2020, letter that attached a copy of an April 21, 2020, memorandum from the executive director of the Coastal Commission regarding implementation of the recent ADU law stating that "the construction or conversion of an ADU . . . directly attached to an existing single-family residence would qualify as an exempt improvement to a single-family residence. (Cal. Code Regs, tit. 14, § 13250(a)(1).) Guest houses and 'self-contained residential units,' i.e., detached residential units, do not qualify as part of a single-family residential structure, and construction of or improvements to them are therefore not exempt development. (Cal. Code Regs, tit. 14, § 13250(a)(2).)" (Emphasis omitted.)

2. On page 6, the second line, at the end of the partial sentence, after "application.", add:

Plaintiffs attached, among other exhibits, two publications from the Coastal Commission: (1) an April 18, 2017, memorandum stating that "[t]o qualify as an exempt improvement to a single-family dwelling, an ADU must be contained within or directly attached to the existing single-family structure;" and (2) the April 21, 2020, memorandum referenced above stating that an ADU "directly attached to an existing single-family residence would qualify as an exempt improvement to a single-family residence."

3. On page 6, at the end of the first full paragraph that begins "On May 10, 2022, . . .", add:

Plaintiffs also acknowledged a January 2022 Coastal Commission publication that reconsidered its position in favor of exemptions for attached ADUs, but maintained that the Commission's new reasoning was flawed and that the interpretation of the City's LCP was a matter of law for the court to determine.

4. On page 13, at the end of the first full paragraph that begins "Finally, the wording . . .", add the next chronological footnote:

The City also advocates deference to the Coastal Commission's January 2022 publication reconsidering its prior position in favor of exemptions for attached ADUs. That guidance, however, contradicted prior Commission publications supporting plaintiffs' application, including the April 21, 2020, memorandum from its executive director. Despite plaintiff's' urging, the City ignored the Commission's prior guidance on the issue during the application process; it was not until this litigation arose that it adopted a more deferential posture towards such agency interpretations. Given the Commission's inconsistent positions on the issue within a relatively short timeframe, we decline the invitation to afford judicial deference to its most recent position on the issue. (See Henning v. Industrial Welfare Com. (1988) 46 Cal.3d 1262, 1278 ["[I]n the abstract, a current administrative interpretation would ordinarily be entitled to great weight. [Citation.] But when . . . the construction in question is not 'a contemporaneous interpretation' of the relevant statute and in fact 'flatly contradicts the position which the agency had enunciated at an earlier date, closer to the enactment of the . . . statute[,]' it cannot command significant deference"].)

The petition for rehearing is denied. There is no change in the judgment.

RUBIN, P. J.

MOOR, J.

KIM, J.