Failure Of Timely Notification, That Does Not Result In Prejudice Against The Applicant, Does Not Nullify A California Coastal Commission Action

In North Pacifica LLC v. California Coastal Commission, (— Cal.Rptr.3d —, 2008 WL 4277394, Sept. 19, 2008), a California Court of Appeal considered a developer’s effort to have the denial of its development plan by the California Coastal Commission (“Commission”) voided on the grounds that the Commission did not provide it with the required 10-day advance notice of a hearing on the matter. The court found that because the Commission substantially complied with public notice requirements, and the developer was not prejudiced by a technical noncompliance, the Commission’s decision need not be voided.


In 2002, the City of Pacifica (“City”) issued a development permit to North Pacifica LLC (“Developer”) for a residential development on coastal property. A city resident appealed the decision to the Commission. On December 20, 2005, the Commission sent notice that it would hold a hearing on the appeal on January 11, 2006. Developer’s counsel later complained this notice was sent to a post office box address that was not regularly checked and was therefore not received until shortly before the hearing.

The Commission provided additional information on its website on December 28, and again on December 30. On January 3, it mailed out formal notice of the hearing. The format of the hearing consisted of a staff recommendation that the Commission find a “substantial issue” existed which would lay the groundwork for additional hearings on the merits. A substantial issue would be deemed to exist unless three Commission members sought a hearing on that question. If not, no public input would be taken until the later hearing on the merits.

On January 10, Developer’s counsel filed objections to the hearing on the grounds that the January 3 notification was not 10 days in advance of the January 11 hearing. On January 11, no commissioners requested additional hearings on the substantial issue question. A hearing on the merits of the appeal was set for May 11, 2006.

In March 2006, Developer filed suit seeking to vacate the Commission’s actions of January 11, and prohibiting the May 11 hearing, on the grounds of inadequate notice of the January 11 hearing. On May 11, the Commission held its hearing on the merits of the appeal. Developer did not attend or submit any materials in support of its position. The Commission denied Developer’s application.

In January 2007, the trial court denied Developer’s petition, and Developer appealed.


In Regents of University of California v. Superior Court (1989) 20 Cal.4th 509, the California Supreme Court ruled that Government Code Section 11130.3 allows for the nullification of an action taken by a state body for violating public notice requirements, but only if the action is not in substantial compliance with the requirements, the court said. Here, the Commission sent out multiple notices and posted information on its website more than 10 days before its hearing, before mailing its final notice eight days before the hearing. The court found when the Commission’s public notice efforts are viewed in aggregate, they substantially comply with the public notice requirements and do not justify nullification of the Commission’s action.

Additionally, Developer failed to show that it was harmed, or prejudiced, by the timely notice failure, the court said. The Commission did not hear public input at the January 11 hearing because no members requested additional hearings on the significant issue question and no amount of advance notice could have helped Developer prepare for the hearing, the court said. Further, no amount of preparation by Developer could have led to a different outcome and it was therefore not prejudiced by not receiving formal notice of the meeting 10 days in advance, the court ruled.

Since the Commission “substantially complied” with open meeting laws, and since Developer was not prejudiced by the failure to meet the 10-day advance requirement, there were no grounds to void the Commission’s findings and its denial of Developer’s application. The trial court ruling, upholding the Commission’s actions, was affirmed.