Opposition Brief — Layne v. County of San Mateo

Suprome Court, US

FILED

DEC 22 1989

JOSEPH F. SPANIOL, JR

CLERK :

No. 89-823 ; hen

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

DONALD M. LAYNE AND LAURA J. LAYNE,

Petitioners,

VS.

COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND

CALIFORNIA COASTAL COMMISSION

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN K. VAN DE KAMP

Attorney General

N. GREGORY TAYLOR

Assistant Attorney General

*DENNIS M. EAGAN

MARJORIE E. COX

Deputy Attorneys General

455 Golden Gate Avenue

San Francisco, California 94102

Telephone: (415) 557-0918

Attorneys for Respondents

State of California and

* Counsel of Record California Coastal Commission

i

QUESTIONS PRESENTED

(1) Whether petitioners’ just compensation claim

was properly dismissed on ripeness grounds, given their

failure to submit even one meaningful application for the

development of their property.

(2) Whether, in rejecting petitioners’ claim that

the state statute generally describing the inland boundaries

of the California Coastal Zone is unconstitutionally vague,

the court below properly concluded that any ambiguity in

the statute was eliminated by the Legislature’s

incorporation by reference of maps precisely defining the

location of this boundary.

(3) Whether petitioners’ equal protection

challenge to Measure A was properly dismissed on

ripeness grounds, given the trial court’s discretionary

authority to refuse to consider applications for declaratory

relief when a declaration is not "necessary or proper at

the time under all the circumstances" (Cal. Code Civ. Pro.

§ 1061).

ii

TABLE OF CONTENTS

Table of Authorities

QUESTIONS PRESENTED

— se < @

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. Proceedings Below

B. Statement of Facts

1. The Regulatory Framework

2. Measure A

3. Petitioners’ Property

(a) Description

ow Oo CO NHN FS FSF NY N WN

(b) Permit History

REASONS WHY THE PETITION

SHOULD BE DENIED

—

_—

I. PETITIONERS’ JUST COMPENSATION

CLAIM DOES NOT PRESENT A

SUBSTANTIAL FEDERAL QUESTION:

THE COURT BELOW CORRECTLY

APPLIED SETTLED FEDERAL

PRECEDENT IN REJECTING THIS

CLAIM ON RIPENESS GROUNDS 11

F<

II.

Il.

PETITIONERS’ VAGUENESS

CHALLENGE ALSO FAILS AS A

SUBSTANTIAL FEDERAL QUESTION:

ANY AMBIGUITY IN THE STATUTE

GENERALLY DESCRIBING THE

BOUNDARIES OF THE COASTAL

ZONE WAS CURED BY THE

INCORPORATION OF MAPS

SHOWING ITS PRECISE LOCATION

PETITIONERS’ EQUAL PROTECTION

CHALLENGE TO MEASURE A WAS

PROPERLY REJECTED AS UNRIPE

CONCLUSION

16

22

iv

TABLE OF AUTHORITIES

Agins v. Tiburon,

447 US. 255 (1979)

Alameda Conservation Ass’n v. Alameda,

264 Cal.App.2d 284 (1968)

Banks v. Civil Service Commission,

10 Cal.2d 435 (1937)

Barnett v. Delta Lines, Inc.,

137 Cal.App.3d 674 (1982)

Building Industry Ass’n v. City of Camarillo,

41 Cal.3d 810 (1986)

City of Napa v. Easterby,

76 Cal. 222 (1888)

Collins v. Riley,

24 Cal.2d 912 (1944)

Cullincini v. Deming,

53 Cal.App.3d 908 (1975)

First English Evangelical Lutheran

Church of Glendale v. Los Angeles County,

482 U.S. 304 (1987)

Fry v. City of Hayward,

701 F.Supp. 179 (N.D. Cal. 1988)

Grayned v. City of Rockford,

408 U.S. 104 (1972)

:

18, 19

rN

&

11

26

18

In re Burke,

190 Cal. 326 (1923) 18

Keniston v. American Nat'l Ins. Co.,

31 Cal.App.3d 803 (1973) 3

Keystone Bituminous Coal Ass’n. v. DeBenedictis,

480 U.S.470 (1987) 12

Kinzli v. City of Santa Cruz, supra,

818 F.2d at 1453 14, 15

Lake Nacimiento Ranch v.

San Luis Obispo County

830 F.2d 977 (9th Cir. 1987) Passim

MacDonald, Sommer & Frates v. Yolo County

477 U.S. 340 (1986) 11, 12, 14

Martino v. Santa Clara Valley Water District

703 F.2d 1141 (9th Cir.),

cert. denied, 464 U.S. 847 (1983) 12

Pacific Legal Foundation,

33 Cal.3d 158 (1982) 26

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978) 13, 14

People v. Smith,

35 Cal.3d 798 (1984) 24

People v. Anderson,

29 Cal.App.3d 551, 561 (1972) ; 24

People v. Weidert,

39 Cal.3d 836 (1985) 23

v.

Paulding County Board of Commissioners,

349 S.E.2d 536 (Ga. App. 1986)

Rich v. State Board of Optometry,

235 Cal.App.2d 591 (1965)

Rowe v. Wells Fargo Realty,

166 Cal.App.3d 310 (1985)

Sonoma County Board of Education v.

Public Employment Relations Board,

102 Cal.App.3d 689 (1980)

Sparks v. City of Compton,

64 Cal.App.3d 592 (1976)

Williamson County Regional

Planning Commission v. Hamilton Bank,

473 U.S. 172 (1985) (hereafter Williamson)

Ybarra v. City of Los Altos Hills,

503 F.2d 250 (9th Cir. 1974)

Constitutions

U.S. Constitution

Sth & 14th Amendments

California Constitution

Art. I, § 19

Codes and Statutes

28 U.S.C. § 1257 (a) (formerly § 1257(3)

28 U.S.C. § 1257 (2) (3)

18

20

Passim

13

California Civil Code

§ 3534 22

California Public Resources Code

§ 30000 et seq. 4

§ 30001 3

§ 30103

§ 30103(a)

§§ 30103, 30150

§ 30108.6

§ 30150

§§ 30150, 30156

§ 30500(a)

§§ 30600 (a) & (d)

§ 30604 (b)

ca.

~

Miscellaneous Authorities

1988 U.S. Code Cong. and Admin. News, p. 766 1

82 Am. Jur. 2d § 56 (1976) 18

California Assem. Journal (1975-1976 Reg. Sess.)

August 13, 1976, p. 19057

58 Cal.Jur.3d, Statutes §§ 49, 109 (1980) 22, 25

63 Ops.Cal.Atty.Gen. 107 (1980) 20

1

No. 89-823

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

DONALD M. LAYNE AND LAURA J. LAYNE,

Petitioners,

VS.

COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND

CALIFORNIA COASTAL COMMISSION

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents State of California and California Coastal

Commission respectfully request that this Court deny the

petition for writ of certiorari seeking review of the

California Court of Appeal’s unpublished opinion in Layne

v. County of San Mateo, No. A041769.

JURISDICTION

Petitioners invoke the jurisdiction of this Court under

28 U.S.C. $1257 (2) and (3). Jurisdiction exists, if at all,

however, only under 28 U.S.C. §$1257(a) (formerly

§1257(3)), pertaining to writs of certiorari, the old section

authorizing appeal (former § 1257(2)), having been

eliminated by the Supreme Court Case Selections Act

(Public Law 100-352), which took effect on September 25,

1988. 1988 U.S. Code Cong. and Admin. News, p. 766.

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

In addition to the Fifth and Fourteenth Amendments

to the United States Constitution, sections 17 and 30103

of the California Coastal Act of 1976, and the local

initiative ordinance known as Measure A, all of which are

cited by petitioners, this case involves the Planned

Agricultural District or "PAD" zoning ordinance enacted

by the County of San Mateo in furtherance of the Coastal

Act. The key provisions of this ordinance are reprinted in

the Appendix to this brief.

STATEMENT OF THE CASE

A. Proceedings Below

The complaint filed by petitioners Donald M. and

Laura J. Layne, on July 29, 1987, against respondents,

County of San Mateo (County), State of California, and

the California Coastal Commission (Commission) includes

three claims. The first, a claim for damages in inverse

condemnation, alleges that the regulations governing

development in the San Mateo coastal zone so restrict

petitioners’ ability to develop their property as to

accomplish a taking in violation of the "Just

Compensation” Clause (see U.S. Const. Sth & 14th

Amends.; Cal. Const., art. I, § 19). (CT 1-3.4+/) The

second seeks a declaration that the Laynes’ property is

not located in the coastal zone and so is not subject to

the challenged regulations. (CT 3-5.) The third, also for

1. The initials "CT" refer to the "Joint Appendix In Lieu of

Clerk’s Transcript” filed in the Court of Appeal.

3

declaratory relief; contains a conclusory allegation

challenging the constitutionality of the entirety of both the

San Mateo Local Coastal Plan and Measure A on

vagueness grounds and further alleges that Measure A

violates a number of other statutory and constitutional

provisions. (CT 6-8). 2/

On March 4, 1988, the superior court granted a

summary judgment in favor of respondents, dismissing

petitioners’ first and third causes of action on ripeness

grounds, and the second on the merits, which judgment

the petitioners promptly appealed. (CT 528, 565, 589.)

In an unpublished opinion filed May 30, 1989, the

Court of Appeal for the First Appellate District, Division

Three concluded that "[t]he trial court properly granted

respondents’ motion[s] for summary judgment on all three

causes of action" and affirmed the judgment in its

entirety. (Pet.App. at 31.) The court denied a timely

petition for rehearing on June 29, 1989. Thereafter, on

August 23, 1989, the Supreme Court of California denied

a petition for review and, on November 21, 1989,

petitioners timely filed their petition for writ of certiorari

in this Court.

2. Petitioners’ equal protection challenge to Measure A has

been treated as if were included in their third cause of action,

although it is not. This claim was raised for the first time in the

trial court in their opposition to respondents’ motions for summary

judgment. (See CT 214.) Under California law, a court is entirely

justified in refusing to entertain such a delayed claim. See, e.g.,

Cullincini v. Deming, 53 Cal.App.3d 908, 915 at n. 5 (1975);

Keniston v. American Nat'l Ins. Co., 31 Cal.App.3d 803, 812 (1973),

Alameda Conservation Ass'n v. Alameda, 264 Cal.App.2d 284, 289

(1968).

4

—: Statement Of Facts

1, The Regulatory Framework

The Coastal Act of 1976 (Cal. Pub. Resources Code, §

30000 et seq.) 2/ was enacted by the Legislature as a

comprehensive scheme to govern land use planning along

the entirety of the California coastal zone. Recognizing

that the coastal zone “is a distinct and valuable natural

resource," the protection of which is of "paramount

concern" to both the "state and the nation," the

Legislature concluded that it was necessary to enact

legislation that would "prevent its deterioration and

destruction" but at the same time allow that further

"carefully planned" development so "essential to the

economic and social well-being of the people of this

state." (§ 30001.) _ :

Both local land use planning and enforcement as well

as the continuing oversight of the California Coastal

Commission are relied upon to achieve these goals. All

local governments lying in whole or in part within the

coastal zone must prepare and submit to the Commission

a local coastal plan (LCP) (§ 30500 (a)). The LCP

includes the government’s land use plan, implementing

zoning ordinances, and zoning district maps for that

portion of the coastal zone within its bounds (§ 30108.6).

Once certified by the Commission, it provides the

framework for—regulating development within this area

(see §§ 30600 (a) & (d); 30604 (b)).

San Mateo’s LCP was certified by the Commission in

3. Unless otherwise indicated, all further statutory references

are to the California Public Resources Code.

saotitisna a

5

October 1980 and went into effect in April 1981 (CT 105-

106). The land use policies relevant to plaintiffs’ property

are set forth in the agriculture component of the LUP.

The zoning regulations which implement those policies are

contained in the county’s Planned Agricultural District

(PAD) ordinance. (CT 58, 93, 336.) +/

Under the county’s program, development of

agricultural lands is regulated through controls on both

the nature and density of allowable uses. The uses

allowed, as of right or pursuant to permit, on land

classified as prime agricultural land include: (1)

agriculture; (2) non-residential development customarily

considered accessory to agricultural uses, such as barns,

sheds, stables, and the like; (3) greenhouses and nurseries;

(4) repairs and additions to existing single family

residences; (5) single family residences; (6) farm labor

housing; (7) public recreation (i.e., shoreline access trails);

and (8) on-shore oil and gas exploration, production and

minimum necessary related storage. (CT 107-108; LUP

Policy No. 5.5; PAD §§ 6352, 6353.)

On land classified as merely suitable for agriculture,

the uses allowed include, in addition: (9) commercial

recreation, such as country inns, stables, and riding

academies; (10) wineries; (11) multi-family residences, if

for affordable housing; (12) schools; (13) fire stations; (14)

aquaculture activities; (15) timber harvesting and

commercial wood lots; (16) agriculture processing plants;

4. For the full text of the Agricultural Component of the

LUP and of the PAD ordinance, see CT 144-153 and CT 154-170.

The provisions of PAD ordinance cited herein are reprinted

verbatim in the Appendix.

6

(17) dog kennels and breeding facilities; (18) dairies; and

(19) uses ancillary to agriculture. (CT 107-108; LUP Policy

No. 5.6; PAD §§ 6352, 6353.)

The maximum density of residential or non-agricultural

development permissible on a given owner’s property is

primarily a function of the maximum number of separate

legal parcels into which his property may be further

divided. (CT 109; PAD §§ 6351.J, 6356.) This, in turn,

is a function of the number of density credits attributable

to the property, each density credit being the equivalent

of one new parcel. (Ibid.) 2/

A sliding scale density analysis -- which takes into

account such things as the amount of prime agricultural

soils, the land’s location relative to all weather roads, fault

zones and the like, its slope, and its susceptibility to land

slides -- is used to determine the total number of density

credits attributable to any given property. (PAD § 6356.)

As a general rule, the greater the number and severity of

these constraints, the lower the development potential (CT

109). However, all legal parcels -- no matter how small

-are entitled to at least one such credit, and larger

parcels may accumulate anywhere from one credit per 40

acres to one credit per 160 acres (CT 109; PAD § 6356).

For example, the owner of a 160 acre parcel would be

entitled to at least one and possibly as many as 4 density

5. There are two exceptions to these rules: (1) farm labor

housing is allowed without limit upon a showing of need; and (2) a

property owner may build up to four dwellings intended for low to

moderate income persons or families, without regard to the number

of density credits attributable to his property. (CT 109; LUP

Policy No. 3.26; PAD § 6356.)

7

credits, and, since each credit equals a new parcel on

which, for example, a new single family residence may be

built, this means that he could build between one and

four new single family residences on his land (CT 109).

And owners like petitioners, who have both a 160 acre

parcel and a contiguous 112 acre parcel, could build

between two and seven new single family dwellings.

2. Measure A

Measure A is an initiative ordinance adopted by

County voters in November 1986 (CT 77-78) which

contains 48 minor and 5 major amendments to the land

use portion of the County’s LCP.

The major amendments provide for: (1) allowance of

additional land uses in rural areas; (2) bonus density

credits for the creation of new agricultural water storage

improvements; (3) transfer of density credits for parcels

whose only developable area is completely covered by

prime agricultural land; (4) voter approval of amendments

to certain identified policies, where the effect of the

proposed amendment would be to make the policy less

restrictive; and (5) extension of the existing policy on on-

shore energy facilities to prohibit the development on-

shore of facilities to serve off-shore gas, as well as oil,

facilities. (See Request for Judicial Notice On Appeal,

Item 1, pp. 2-3.) £/

The minor amendments generally consist of non-

substantive editorial changes to existing land use policies

and/or a revision identifying the policy as one to which

6. The Court of Appeal issued an order granting this request

(hereafter "Request for Judicial Notice) on November 8, 1988.

8

the major amendment concerning voter approval would

apply. (Request for Judicial Notice, Item 2, at p. 2.) 2

The County submitted the measure to the Commission

for certification soon after its enactment (see § 30514),

but because of a noticing defect, it was not formally filed

until March of 1987 (CT 248). At its December, 1987

meeting, the Commission approved both the 48 minor

amendments and the major amendment generally

prohibiting development of on-shore facilities to serve off-

shore gas development but rejected the four remaining

major amendments. The measure was then returned to

the County along with suggested modifications to the

rejected amendments which, "if adopted and transmitted"

to the Commission, could lead to their certification.

(Request for Judicial Notice, Item 4, pp. 1-3; § 30512(b).)

Following hearings held on January 19 and February

2, 1988, the County decided to accept the Commission’s

certification of the 48 minor amendments and one major

amendment approved as submitted, and to accept two of

the four remaining major amendments as modified, but

resolved to send the other two -- i.e., the bonus density

and density transfer amendments -- back to the

Commission with a request that they be approved in the

form originally submitted (Request for Judicial Notice,

Items 2; 3; and 4, p. 2.).

This was done on February 8, 1988. (Request for

Judicial Notice, Item 3.) The Commission heard the

matter at its March 22, 1988 meeting, and, by a split vote,

7. For the full text of Measure A, see CT 79-88. Measure A

is also reprinted in Petitioners’ Appendix, at pages 32-92.

) 9

granted the County’s request. (Request for Judicial

Notice, Item 5.)

Certification of Measure A by the Coastal Commission

thus was not completed until some 18 days after the trial

court granted summary judgment in this case.

3. Petitioners’ Property

The undisputed, material facts regarding petitioners’

property may be summarized as follows.

(a) Description

During the last quarter of 1978, petitioners purchased

approximately 272 acres of land lying along Purissima

Creek Road in San Mateo County (CT 1, 334-335). Their

lands are located between 1-1/2 to 2 miles inland from the

sea (CT 1, 321), and lie within the coastal zone, as that

zone is depicted on the maps adopted by reference by the

Legislature (CT 4, 335).

None of petitioners’ lands are "significant estuarine,

habitat, or recreational areas" and all lie "inland" of "the

first major ridgeline paralleling the sea" (CT 4)’ Finally,

their property is "ideal" for residential use (CT 321).

8. Defendants stipulated to the truth of these allegations

solely for purposes of their summary judgment motions (CT 231;

Reporters Transcript for January 6, 1988 Hearing on Defendants’

Motions for Summary Judgment, p. 2 et seq.). Although

petitioners have suggested otherwise, this is an entirely proper

procedure under California law. (See, e.g., Rowe v. Wells Fargo

Realty 166 Cal.App.3d 310 (1985); Barnett v. Delta Lines, Inc. 137

Cal.App.3d 674, 682 (1982); Sparks v. City of Compton 64

Cal.App.3d 592 (1976)).

=

10

(b) Permit History

Petitioners have applied for only one coastal

development permit since they bought their property (CT

336, 337). This occurred in 1978 when they applied for a

permit to place a mobile home on their property to house

farm labor (CT 336). The regional Coastal Commission

granted their application and issued the permit (76, 94,

336). It has since been renewed by the County, most

recently on October 15, 1987 (CT 94). In addition,

leaseholders of 27.8 acres of petitioners’ property applied,

in 1981, for a coastal development and stable permit to

locate a commercial horse training operation on their

acreage. The County approved their application in 1982

and granted an extension on the permit in 1983 (CT 76-

77, 336).

In 1984, petitioners asked the County to determine the

number of existing legal parcels contained within their 272

acres (CT 77, 337). The County informed them that their

property presently consists of only two such parcels, one

containing approximately 160 acres and one containing

approximately 112 acres. The County explained that they

might be able to subdivide their property but that a

density analysis would be required to determine the exact

number of potential parcels and enclosed with the letter

"an application, fee schedule, and a copy of the PAD

ordinance explaining how density is determined on large

parcels." (CT 77, 101-102.)

Despite this invitation, petitioners did not apply for a

density credit determination until December 20, 1987,

almost 5 months after this action was filed. (CT 320.)

The County did not complete the analysis until after

defendants motions for summary judgment were heard.

——e

11

(See Reporters Transcript for March 1, 1988 Hearing on

Plaintiffs’ Motion to Vacate, p. 2 (hereafter "RT").)

However, the results of its analysis were reported to the

court befcre judgment was entered (RT 2; CT 565). The

County concluded that their property was entitled to no

more than four density credits. (RT 2, 4; CT 556.) "The

number of density credits" attributable to their property

can, however, still be decreased "depending on site

specific factors." (CT 323.)

REASONS WHY THE PETITION SHOULD BE DENIED

I.

PETITIONERS’ JUST COMPENSATION

CLAIM DOES NOT PRESENT A

SUBSTANTIAL FEDERAL QUESTION:

THE COURT BELOW CORRECTLY

APPLIED SETTLED FEDERAL

PRECEDENT IN REJECTING THIS

CLAIM ON RIPENESS GROUNDS

Petitioners’ just compensation claim constitutes a

misguided attempt to take advantage of the United States

Supreme Court’s holding, in First English Evangelical

Lutheran Church of Glendale v. Los Angeles County, 482

U.S. 304 (1987), that a regulatory taking requires payment

of just compensation, even if the taking is temporary.

Unfortunately, in their rush to the courthouse, petitioners

failed to stop and consider whether they had a ripe claim.

As the court below correctly recognized, settled federal

precedent establishes that they do not.

12

This Court has confronted questions concerning the

ripeness of regulatory taking claims on several occasions

in recent years, and its decisions in those cases precisely

define the circumstances that must be present before a

court may properly entertain such a claim. See Agins v.

Tiburon, 447 U S. 255 (1979) (hereafter Agins (U.S.);

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 US. 172 (1985) (hereafter

Williamson); MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340 (1986) (hereafter MacDonald).

As this Court has explained on numerous occasions, the

central question posed by such claims is whether the

regulation at issue goes “too far." However, as a general

rule a court cannot know just how far a regulation goes

until it has been applied; that is, until the appropriate

planning authorities have made a final and authoritative

decision regarding “the type and intensity of development

legally permitted on the subject property." Consequently,

a regulatory taking claim brought in advance of such

decision is ordinarily premature. MacDonald, supra, 477

U.S. at 348 (emphasis added); accord Williamson, supra,

473 US. at 187; Agins(U.S.), supra, 447 US. at 260.

The sole exception to this rule occurs in those rare

cases where it is evident on a regulation’s face that it goes

"too far"; that is, where there is no possibility that the

regulation can be constitutionally applied. Agins (U.S.),

supra, 447 U.S. at 260; Lake Nacimiento Ranch v. San

Luis Obispo County 830 F.2d 977, 981-982 (9th Cir.), mod.

841 F.2d 872 (9th Cir. 1987); Martino v. Santa Clara

Valley Water Dist. 703 F.2d 1141, 1146-1147 (9th Cir.),

cert. denied, 464 U.S. 847 (1983). Claimants, however,

face an “uphill battle in making a facial attack on [a

13

regulation] as a taking." Keystone Bituminous Coal Ass’n.

v. DeBenedictis, 480 U.S.470 (1987). In this case, the

court below correctly concluded that this hill was fatally

steep.

The test to be applied in considering a facial challenge

is straightforward. A statute regulating the uses that can

be made of property effects a taking only if it does not

substantially advance legitimate state interests or denies an

owner all economically viable use of his land. Agins (U.S.),

supra, 447 US. at 260.

The regulations in issue easily survive scrutiny under this

test. That the regulations substantially advance legitimate

governmental goals is clear. They are designed to protect

the coastal zone -- a distinct and valuable natural resource

of importance to both the people of this state and to the

nation ($ 30001) -- from the ill effects of unplanned

urbanization. Such governmental purpose has long been

recognized as legitimate. See Agins (U.S.), supra, 447 U.S.

at 260-262 (approving scenic zoning); Penn Central

Transp. Co. v. New York City, 438 U.S. 104, 129 (1978)

[approving landmark preservation]; Ybarra v. City of Los

Altos Hills 503 F.2d 250 (9th Cir. 1974) (approving

preservation of the rural environment).

Moreover, petitioners’ own declarations establish that

the regulations at issue do not prevent beneficial use of

their land. They concede that their lands "are ideal for

residential development" (CT 321). Given this and the

fact that the regulations on their face permit them to

build between two and seven new residences on their

property, as well as some 18 other possible uses, it quickly

becomes evident that they have not been denied all

“economically viable use" of their land. (See Agins (U.S.),

14

supra, 447 U.S. at 260; Lake Nacimiento Ranch v. San

Luis Obispo County, supra, 830 F.2d at 981.)

Since the regulations in issue are not facially invalid,

plaintiffs inverse claim can be maintained, if at all, only

as an “as applied" challenge. As a result, in order to

obtain a summary judgment dismissing this claim on

ripeness grounds, all respondents had to demonstrate was

that the requisite final decision regarding the “type and

intensity" of development permissible on their property

had not been made. Applying settled precedent to the

unique facts of this case, the court below correctly

concluded that this was no obstacle at all.

To establish such a final decision, a claimant must be

able to show: (1) that a development plan he submitted

was rejected; and (2) that his subsequent request for a

variance was denied. (Williamson, supra, 473 U.S. at 188;

Kinzli v. City of Santa Cruz, supra, 818 F.2d at 1453; Lake

Nacimiento Ranch Co. v. County of San Luis Obispo, supra,

830 F.2d 977.) Even this will not suffice if the rejected

plan was "exceedingly grandiose," since the "[r]ejection of

[such a] plan does not logically imply that less ambitious

plans will receive similarly unfavorable reviews."

MacDonald, supra, 477 U. S. at 353, n.9; see also Penn

Central Transp. Co. v. City of New York, 438 US. 104,

136-137 (1978).

No extended discussion is required to establish that

petitioners have not and can not meet these requirements.

No allegation of rejected development plans appears in

their complaint, and the undisputed facts establish that

there have been none. To the contrary, the only two

development proposals submitted for their property were

both approved and the necessary permits issued. Thus

15

they cannot show that the requisite final decision as to the

type of development permissible on their property has

been made.

Nor can they establish the necessary final decision as

to the intensity of development permissible. Their

belated request for a density analysis does not establish

this even though they obtained the results prior to entry

of the summary judgment. As the declaration of their

own witness, the very man "responsible for the

introduction of the concept of density analysis into [the]

County([’s} planning law," reveals, the density analysis

which plaintiffs obtained does not constitute a final

decision regarding the intensity of development that will

actually be permitted on their property: rather "[t]he

number of density credits can [still] be decreased

depending on site specific factors" (CT 323). Petitioners

thus remain very nearly as far from a final determination

regarding the intensity of development permissible on

their property as they were on the day they filed this suit.

Finally, although petitioners’ argued otherwise, the court

below, again applying settled federal precedent, properly

concluded that petitioners cannot escape their ripeness

dilemma by resort to the futility doctrine. This refuge is

denied those who, like they, have not filed even one

meaningful application for a development project. (Kinzli

v. City of Santa Cruz, supra, 818 F.2d at 1454-1455; Lake

Nacimiento Ranch Company v. County of San Luis Obispo,

supra, 830 F.2d 977, 980.)

16

Il

PETITIONERS’ VAGUENESS

CHALLENGE ALSO FAILS AS A

SUBSTANTIAL FEDERAL QUESTION:

ANY AMBIGUITY IN THE STATUTE

GENERALLY DESCRIBING THE

BOUNDARIES OF THE COASTAL

ZONE WAS CURED BY THE

INCORPORATION OF MAPS

SHOWING ITS PRECISE LOCATION.

Subdivision (a) of section 30103 defines the coastal zone

as follows:

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 that

chapter of the Statutes of 1975-1976 Regular

Session enacting this division, extending

seaward to the state’s outer limit of

jurisdiction...and extending inland generally

1,000 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 generally extends inland less than

1,000 yards. . . . (Emphasis added.)

17

Section 17 of chapter 1330 of the Statutes of 1976, as

amended by section 29 of chapter 1331 of the Statutes of

1976 (hereafter "Section 17"), in turn provides:

The coastal zone, as generally defined in

Section 30103. . . shall include the land

and water areas as shown on the map

prepared by the California Coastal Zone

Conservation Commission _ titled

"California Coastal Zone" dated August

11, 1976, and on file with the Secretary of

State. (Emphasis added.

While petitioners’ concede that their property lies within

the coastal zone as it is depicted on these maps, they

contend that it is not within the coastal zone as it is

otherwise, more generally described in section 30103.

Accordingly, in a vain attempt to escape the strictures of

the regulations in issue, petitioners sought below to have

the maps declared invalid under state law or, failing this,

a declaration that the alleged conflict between the

language of the statute and the boundary shown on the

maps renders section 30103 unconstitutionally ~ vague.

The lower courts properly rejected both these challenges.

Understandably, only the latter challenge is repeated here.

As will be seen, however, settled precedent establishes

that it is wholly without merit and thus is equally

underserving of this Court’s attention.

Petitioners’ own declarations reveal that their allegation

that there is a conflict between the general language of

section 30103 and the coastal zone boundary shown on

the maps for San Mateo County rests on nothing more

than their lay opinion that their property itself is not a

significant estuarine, habitat, or recreational area and that

18

a 120’ and an 800’ ridgeline lie seaward of their property

(See CT 32.)

In truth the only question these facts pose is: whose

opinion on the question whether a 120’ or an 800’

ridgeline is a "major ridgeline" within the meaning of the

statute and on the question whether their property lies "in

[a] significant estuarine, habitat, or recreational area" is

the dispositive one? The Legislature’s or petitioners’?

The answer seems evident: it is the Legislature’s. It was

the legislature that adopted the maps specifically fixing the

boundary inland of plaintiffs’ property and beyond the

1,000 yard line and it may be presumed that the

Legislature had evidence before it that would warrant its

action. See generally 58 Cal.Jur.3d, Statutes § 49 (1980).

Accordingly, in the absence of any fatal ambiguity in the

statute, it seems clear that plaintiffs must do as others

have done and take their case for relief there.

Unfortunately for petitioners, no such ambiguity is

present here. While certain of the terms used in section

30103 -- such as "first major ridgeline" -- are amenable to

more than one interpretation, they are no more

ambiguous than many other terms upheld in the face of

such challenges

True, due process requires that an enactment be

declared void for vagueness if its provisions and

requirements are not clearly defined. Grayned v. City of

Rockford, 408 U.S. 104, 108-109 (1972). But, it is equally

true that statutes must be upheld unless their

unconstitutionality clearly, positively, and unmistakably

appears. See, e.g. Collins v. Riley, 24 Cal.2d 912, 915

(1944). For this reason, vagueness challenges are rejected

out of hand unless "men of common intelligence must

19

necessarily guess at [a statute’s] meaning and differ as to

[its] application." People v. Smith, 35 Cal.3d 798, 809

(1984). Reasonable certainty is all that is required; mere

difficulty in determining a statute’s meaning will not

render it nugatory. People v. Anderson, 29 Cal.App.3d

551, 561 (1972).

Section 30103 easily passes muster under this standard.

Indeed, the requisite "reasonable certainty" necessary to

sustain it is provided by its reference to the maps. This

reference effectively tells the reader that, in order to

understand precisely what the general terms mean, he

need only look there.

That this is what the Legislature intended can hardly be

disputed. In a formal opinion issued nearly seven years

ago, the California Attorney General concluded that the

Legislature meant the landward boundary of the coastal

zone depicted on the maps to prevail over the generalized

description set forth in that section. 63 Ops.Cal.Atty.Gen.

107 (1980). After examining the express language of

section 30103 and section 17, the Attorney General found

that the language in the former section to the effect that

the coastal zone extends generally 1,000 yards from the

mean high tide line, or in certain areas five miles from

that line or to the first major ridgeline paralleling the sea

is "merely descriptive of the rationale used by the

Legislature in drawing the particular line on the maps."

Id., at 109.

As the opinion notes this conclusion finds support in

various other provisions in the Coastal Act concerning the

location of the boundary. Subsequent to its approval of

the original maps, the Legislature has made several

changes in the landward boundaries of the coastal zone.

20

For example, sections 30150 through 30176 all concern

amendments to the inland boundary of the coastal zone

at various points along the coast. In each of these

instances, the Legislature amended the coastal zone

boundary by amending the maps it had previously

adopted, not by amending the general description of the

coastal zone.

The Legislature’s intent to define the coastal zone by

its adopted maps -- even where those maps show an

interior boundary that is arguably further inland than the

boundary that would result from application of the general

language set forth in section 30103 -- is further confirmed

by its repeated rejection of legislation aimed at moving

the inland boundary in the Santa Monica Mountains area

seaward to what some contended was the “first major

ridgeline paralleling the sea." (See CT 392.)

Principles of statutory construction also suggest that the

boundary shown on the maps be the boundary that

prevails in cases of conflict with the language of section

30103. The maps describe the boundary more specifically

than the descriptive language and, as a general rule, the

Legislature’s more particularized expressions on a subject

prevail over its more general ones. Civ. Code, § 3534;

see generally 58 Cal.Jur.3d, supra, § 109, at pp. 488-491.

Finally, there no doubt but that giving effect to the maps

accords with the legislative intent in this very case.

Indeed, petitioners’ claim that the Legislature intended to

fix the boundary of the coastal zone at the 1,000 yard line

in San Mateo County demonstrates only that they have

not bothered to review the legislative history of the Act.

21

One of the more interesting things this history reveals is

that, in the final days leading up to the adoption of the

Act, the Assembly specifically rejected a proposed

amendment to the Act that would have fixed the boundary

of the San Mateo coastal zone at the 1,000 yard line.

The amendment -- proposed on the floor of the

Assembly on August 13, 1976 by Mr. Arnett -- would have

changed section 30103 (a) as it now reads by adding at

the end of that section the following sentence:

"Notwithstanding the foregoing provisions of this section,

the coastal zone in San Mateo County shall not extend

more than 1,000 yards inland from the mean high tide

line of the sea." Assem. Journal (1975-1976 Reg. Sess.)

August 13, 1976, p. 19057. However, the amendment was

rejected immediately after being read, by a vote of 36 to

29. Ibid.

The post-enactment history of the Act is equally

instructive. The Legislature amended various segments

of the coastal zone boundary in 1979, deleting areas

previously incorporated in some instances and adding

areas previously excluded in others. See §$ 30150

(adopting by reference maps showing these adjustments).

Although San Mateo County was one of the counties

affected by these amendments, it the only change the

Legislature made the County’s coastal zone boundary was

to move it "seaward to the five-mile limit" in the area of

the Butano Creek watershed. See Pub. §§ 30150, 30156.

Suffice it to say that the fact that the Legislature has

twice refused to avail itself of an opportunity to move the

San Mateo boundary seaward to the 1,000 yard line

strongly suggests that that is not where it wishes the

boundary located. See People v. Weidert, 39 Cal.3d 836,

22

846-847 (1985); Rich v. State Board of Optometry, 235

Cal.App.2d 591, 607 (1965).

Il

PETITIONERS’ EQUAL PROTECTION

CHALLENGE TO MEASURE A WAS

PROPERLY REJECTED AS UNRIPE.

In their third cause of action, the petitioners’ challenged

the constitutionality of the entirety of both the County’s

LCP and Measure A on vagueness grounds and the

validity of Measure A alone on sundry other grounds. To

these claims, they later added yet another constitutional

challenge to Measure A founded on the equal protection

clause. (See supra, fn. 2.) The Court of Appeal affirmed

the trial court’s dismissal of all of these claims as unripe;

it did not reach the merits of any of them, including the

equal protection challenge. (See Pet.App., at 29-30.)

This result is entirely proper. As the Court of Appeal

noted, "[cjertification of Measure A by the Coastal

Commission was not completed until March 22, 1988, 18

days after the trial court granted summary judgment. The

lack of ripeness under these circumstances is obvious."

(Pet.App. at 29.)

23

IV

CONCLUSION

For these reasons, respondents respectfully request that

the petition for a writ of certiorari be denied.

DATED: December 21, 1989

Respectfully submitted,

JOHN K. VAN DE KAMP

Attorney General

of the State of California

N. GREGORY TAYLOR

Assistant Attorney General

*DENNIS M. EAGAN

MARJORIE E. COX

Deputy Attorneys General

Attorneys for Respondents

*Counsel of Record State of California and

Culifornia Coastal Commission

(Appendices follow)

APPENDIX A

[APTER 21A. "PAD" (PLANNED AGRICULTURAL DISTRICT).

§ 6351.J. Density Credits

The maximum number of land divisions permitted for a

parce] computed in accordance with Section 6356. For

Public and Commercial Recreation uses, each density

credit equals 630 gallons per day of water. For all other

uses, each density credit equals 315 gallons per day of

water. Credits may be combined for uses on a single

parcel if the number of land divisions permitted is

reduced accordingly; however, only one credit shall be

assigned to an agricultural parcel. Only one dwelling unit

or non-agricultural use shall be permitted per parcel.

§ 6352. USES PERMITTED

The following uses are permitted in the PAD:

A. On Prime Agricultural Lands

1. Agriculture.

2. Non-residential development customarily

considered accessory to agricultural uses.

3. Soil dependent greenhouses and nurseries .

provided that a soil management plan is prepared showing

how open prime soils on the site will be preserved and

how soils will be returned to their original condition when

operations cease.

4. Repairs, alterations, and additions to existing

single-family residences. _

A-2

B. On Land Suitable for Agriculture and Other Lands

1. Agriculture.

2. Non-residential development customarily

considered accessory to agricultural uses.

3. Dairies.

4. Greenhouses and nurseries.

5. Repairs, alterations, and additions to existing

single-family residences.

§ 6353. USES PERMITTED SUBJECT OT THE

ISSUANCE OF A PLANNED

AGRICULTURAL PERMIT.

The following uses are permitted in the PAD

subject to the issuance of a Planned Agricultural Permit,

which shall be issued in accordance with the criteria set

forth in Section 6355 of this Ordinance.

Applications for Planned Agricultural Permits shall

be made to the County Planning Commission and shall be

considered in accordance with the procedures prescribed

by the San Mateo County Zoning Ordinance for the

issuance of use permits and shall be subject to the same

fees prescribed therefore.

A. Qn Prime Agricultural Lands

1. Single-family residences.

2. Farm labor housing

3. Public recreation/shoreline access trail (see

Section 6355.D.3 and 4.).

4. Non-soil dependent greenhouses and nurseries

if no alternative building site on the parcel exists.

5. Onshore oi] and gas exploration, production,

and minimum necessary related storage subject tot he

A-3

issuance of an oil well permit, except that no wells shall

be located on prime soils.

2. Farm labor housing.

3. Multi-family residences if for affordable

housing.

4. Public recreation/shoreline access trail (see

Section 6355.D.3 and 4.)

5. Schools.

6. Fire stations.

7. Commercial recreation.

8. Aquacultural activities.

9. Wineries: provided that the annual storage

capacity shall not exceed 10,000 gallons, the annual

fermentation capacity shall not exceed 5,000 gallons, and

the annual bottling shall not exceed 2,500 cases of wine;

the only retail sales permitted will be those of wines

produced on the premises.

10. Timber harvesting and commercial wood lots

subject to the issuance of a timber harvesting permit.

11. Onshore oil and gas exploration, production,a

nd storage subject to the issuance of an oil well permit.

12. Agricultural processing plants.

13. Uses ancillary to agriculture.

14. Dog kennels and breeding facilities.

15. Scientific/technical research and test

facilities,d provided a Planned Agricultural Permit shall

only be issued for this use upon the following findings:

a. That the use is of a low-intensity nature

with minimum of permanent construction required, no

permanent on-site personnel or permanent on-site

eee. a.m

A-4

vehicles.

b. That the nature of the operation

requires an open, isolated, and radio frequency

interference-free environment.

c. That no manufacturing or industrial

activities are involved.

d. That the size, location and design of

any proposed facility as well as level of activity on the site

are compatible with the policies of the Local Coastal Plan.

e. That the proposed use does not impair

existing or potential agricultural uses on the site or on

surrounding properties. The applicant shall demonstrate

how agriculture will not be impaired, including provisions

for leasing portions of the site for agricultural uses.

f. That the proposed use or facility does

not create a potential for any health or safety hazard.

g. That the applicant for such a facility

shall describe the manner in which other users might be

accommodated in sharing the proposed facility so as to

avoid the duplication of such facilities in the future.

h. That the applicant demonstrate that no

feasible sites exist in the RM, RM/CZ, TPZ, or TPZ/CZ

zones for the proposed facility.

§ 6355. SUBSTANTIVE CRITERIA FOR ISSUANCE

OF A PLANNED AGRICULTURAL PERMIT.

It shall be the responsibility of an applicant for a

Planned Agricultural Permit to provide factual evidence

which demonstrates that any proposed land division or

conversion of land from an agricultural use will result in

uses which are consistent with the purpose of the Planned

A-5

Agricultural District; as set forth in Section 6350. In

addition, each application for a division or conversion of

land shall be approved only if found consistent with the

following criteria:

A. General Criteria

1. The encroachment of all development upon

land which is suitable for agricultural use shall be

2. All development permitted on a site shall be

clustered.

3. Every project shall conform to the

Development Review Criteria contained in Chapter 20A.2

of the San Mateo County Ordinance Code.

B. Water Supply Criteria

1. The existing availability of a potable and

adequate on-site well water source for all non-agricultural

uses is demonstrated.

2. Adequate and sufficient water supplies needed

for agricultural production and sensitive habitat protection

in the watershed are not diminished.

3. All new non-agricultural parcels are severed

from land bordering a stream and their deeds prohibit the

transfer of riparian rights.

C. Criteria for the Division of Prime Agricultural Land

1. Prime Agricultural Land which covers an

entire parcel shall not be divided.

2. Prime Agricultural Land within a parcel shall

not be divided unless it can be demonstrated that existing

or potential agricultural productivity of all resulting parcels

would not be diminished.

3. Prime Agricultural Land within a parcel will

not be divided when the only building site would be on

A-6

such Prime Agricultural Land.

D. Criteria for the Conversion of Prime Agricultural

Lands

Prime Agricultural Land within a parcel shall not

be converted to uses permitted by a Planned Agricultural

Permit unless it can be demonstrated that no alternative

building site exists on a parcel for:

1. A single-family residence.

2. Farm labor housing.

3. A recreation facility on land owned by a

public agency before the effective date of this Ordinance,

and

a. The agency, as a condition of approval

of the Planned Agricultural Permit, executes a recordable

agreement with the County that all prime agricultural land

and other land suitable for agricultural which is not

needed for recreational development or for the protection

and vital functioning of a sensitive habitat will be

permanently protected.

b. The agency, whenever legally feasible,

agrees to lease the maximum amount of agricultural land

to active farm operators on terms compatible with the

primary recreational and habitat use.

4. A shoreline access trail.

5. Permissible onshore oil and gas exploration,

production, and storage facilities.

E. Criteria for the Division of Lands Suitable for

Agriculture and Other Lands

Lands suitable for ‘agriculture and other lands

shall not be divided unless it can be demonstrated that __

existing or potential agricultural productivity of any

resulting agricultural parcel would not be diminished.

A-7

F. Criteria for the Conversion of Lands Suitable for

Agriculture and Other Lands

All lands suitable for agriculture and other lands

within a parcel shall not be converted to uses permitted

by a Planned Agricultural Permit unless all of the

following criteria are met: :

1. All agriculturally unsuitable lands on the

parce] have been developed or determined to be

undevelopable, and

2. Continued or renewed agricultural use of the

soils is not capable of being accomplished in a successful

manner within a reasonable period of time, taking into

account economic, environmental, social, and technological

factors (Section 30108 of the Coastal Act), and.

3. Clearly defined buffer areas are developed

between agricultural and non-agricultural uses, and

4. The productivity of any adjacent agricultural

lands is not diminished, including the ability of the land to

sustain dry farming or animal grazing, and

5. Public service and facility expansions and

permitted uses do not impair agricultural viability, either

through increased assessment costs or degraded air and

water quality, and

6. In addition, for parcels adjacent to urban

areas, the viability of agricultural uses is severely limited

by conflicts with urban uses, and the conversion of land

would complete a logical and viable neighborhood and

contribute to the establishment of a stable limit to urban

development.

§ 6356. MAXIMUM DENSITY OF DEVELOPMENT.

A-8

In the Planned Agricultural District, for purposes

of determining the maximum total number of density

credits accumulated on any parcel, the following system

shall be used:

The total parcel shall be compared against the

criteria of this Section in the order listed. Any segment

of a parcel to which a criterion first applies shall be

allowed a maximum accumulation of that density. Once

considered under a criterion, a segment of the parcel shall

not be considered under subsequent criteria. When the

applicable criteria have been determined for each of the

areas, any portion of the parcel which has not yet been

assigned a maximum density accumulation shall be

assigned a density of 1 density credit per 40 acres.

The sum of densities accrued under all applicable

categories shall constitute the maximum density of

development permissible under this Section. If the

fractional portion of the number of density credits allowed

is equal to or greater than .5, the total number of density

credits allowed shall be rounded up to the next whole

density credit. If the fraction is less than .5, the fractional

unit shall be deleted. All legal parcels shall accumulate at

least 1 density credit.

In order to equate the density accrued for

different uses permitted in the PAD, one density credit

shall equal 630 gallons/day of water for Public and

Commercial Recreation uses, and 315 gallons/day of water

for all other uses. Any uses requiring more than 630 or

315 gallons/day of water shall consume the number of

additional whole credits needed. When a Master Land

Division Plan is approved, more than one density credit

may be assigned to a new non-agricultural parcel if the

a

A-9

number of permitted divisions is reduced accordingly;

however, only one credit may be assigned to a new

agricultural parcel.

The provisions of this Section will not apply to

agriculture, farm labor housing, or affordable housing as

defined in Policy 3.26 of the Local Coastal Program, or

other structures considered to be accessory to agriculture

under the same ownership.

A. Prime Agricultural Lands

One density credit for that portion of a parcel

which is Prime Agricultural Land as defined in Section

6351. For parcels with less than 160 acres of such land,

density accumulation is proportioned on the basis of 1

credit per 160 acres.

B. Lands with Landslide Susceptibility

One density credit for that portion of a parcel

which lies within any of the three least stable categories

(categories V, VI, and L) as shown on the US.

Geological Survey Map MF 360, "Landslide Susceptibility

in San Mateo County." For parcels with less than 160

acres of such land, density accumulation is proportioned

on the basis of 1 credit per 160 acres.

C. Land with Slope 50% o

One density credit for that portion of a parcel

which has a slope 50% or greater. For parcels with less

than 160 acres of such land, density accumulation is

proportioned on the basis of 1 credit per 160 acres.

D. Remote Lands

One density credit per 160 acres for that portion

of a parcel over 1/2 mile from an existing, all-weather,

through public road which was in existence before the

effective date of this Ordinance.

A-10

E. Land With Slope 30% But Less Than 50%

One density credit per 80 acres for that portion of

a parcel which has a slope in excess of 30% but less than

50%.

F. Lands Within Rift Zones or Active Faults

One density credit per 80 acres for that portion of

a parcel which is located within the rift zone or zone of

fractured rock of an active fault as defined by the U.S.

Geological Survey and mapped on USGS Map MF 355,

"Active faults, probably active faults, and associated

fracture zones in San Mateo County."

G. Lands Within Floor Hazard Areas

One density credit per 60 acres for that portion of

a parcel falling within a Flood Hazard Area in accordance

with the provisions of Chapter 35.5 of this Part and using

the documents identified in Section 6824.2 of that

Chapter, as appropriate. Where previous actions have

eliminated such flood areas, the provisions of this

subsection shall not apply.

H. Land With Slope 15% But Less Than 30%

One density credit per 60 acres for that

portion of a parcel with a slope in excess of 15% but less

than 30%.

I. Land Within Agricultural Preserves or Exclusive

Agricultural Districts

~ One density credit per 60 acres for that portion of

a parcel within agricultural preserves or the exclusive

Agricultural Districts as defined in the adopted Resource

Conservation Area Density Matrix policy.

J. All Other Lands

One density credit per 40 acres for that portion of

a parcel not within the above areas.

PROOF OF SERVICE BY MAIL

State of California

County of San Francisco

I am a citizen of the United States and a resident of

or employed in the City of San Francisco, County of San

Francisco; I am over the age of 18 years and not a party

to the within action; my business address is 455 Golden

Gate Avenue, San Francisco, California 94102.

On December 21, 1989, I served the within

Respondents’ Brief in Opposition on all parties by placing

three true copies thereof enclosed in sealed envelopes,

with postage thereon fully prepaid, in the United States

Post Office mail box at San Francisco, California,

addressed as follows:

DONALD M. LAYNE MICHAEL B. MURPHY

200 Clock Tower Place Deputy County Counsel

Suite B-103 401 Marshall Street

Carmel, California 93923 Redwood City, CA 94063

Counsel for Petitioners Counsel for Respondent

County of San Mateo

All parties required to be served have been served.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on December 21, 1989, at San Francisco,

California.

a oo

SUSIE FON (