Opinion
In recent decades, the People of California have become painfully aware of the deterioration in the quality and availability of recreational opportunities along the California coastline due to the combined factors of an increasing demand for its use and the simultaneous decreasing supply of accessible land in the coastal zone. Growing public consciousness of the finite quantity and fragile nature of the coastal environment led to the 1972 passage of Proposition 20, an initiative measure entitled the California Coastal Zone Conservation Act (the 1972 Coastal Act). (Former Pub. Resources Code, §§ 27000-27650.)
The 1972 Coastal Act created the California Coastal Zone Conservation Commission and directed it to oversee the orderly process of planning for the future development of the California coastline. The 1972 Coastal Act paralleled earlier legislation establishing state-supervised regional planning agencies for the protection of San Francisco Bay (Gov. Code, § 66600 et seq.) and Lake Tahoe (Gov. Code, § 67000 et seq.).
One of the stated purposes of the 1972 Coastal Act was to increase public access to the coast. 1 The 1972 Coastal Act was an interim measure, destined by its own terms to expire at the beginning of 1977. It authorized the interim coastal commission to prepare a study summarizing the progress of planning in the coastal zone and delineating goals and recommendations for the future of California’s shoreline for the guidance of the Legislature. The study, labeled *163 the California Coastal Plan, was completed in December 1975 and submitted to the Legislature, which used it as a guide when drafting the California Coastal Act of 1976 (the Coastal Act). (Pub. Resources Code, § 30000 et seq.) The Coastal Act created the California Coastal Commission (the Commission) to succeed the California Coastal Zone Conservation Commission. One of the objectives of the 1976 version of the Coastal Act was to preserve existing public rights of access to the shoreline and to expand public access for the future. The coastal commission was directed to prepare a set of guidelines explaining its interpretation of the public access provisions of the Coastal Act. (Pub. Resources Code, § 30620, subd. (a)(3).) 2
Since the passage of the 1972 Coastal Act, both coastal commissions have adhered to a policy of requiring potential developers to dedicate easements through their property as a precondition to obtaining permit approval for proposed developments. Predictably, property owners have opposed the imposition of such conditions, occasionally resorting to litigation to express their dissatisfaction with the Commission’s access policies. The present proceeding derives from two suits filed against the current Commission; one is an action filed by the Pacific Legal Foundation and a group of coastal property owners seeking a declaratory judgment, an injunction, and a writ of mandamus to correct the asserted facial invalidity of the Commission’s public access guidelines; the other is an action for administrative mandamus filed by two property owners (Jackson and Hunter) seeking to compel the Commission to strike a specific permit condition.
Pacific Legal Foundation’s suit did not challenge any individual permit condition; rather, it attacked the general access policies of the Commission. When the guidelines were adopted, the Pacific Legal Foundation amended its complaint to challenge the policies embodied therein. The apparent goal of the suit was to severely restrict the use of dedication conditions as a mechanism for fulfilling the Commission’s obligation to maximize public access to the coast. The court denied the relief requested, and entered summary judgment for the Commission.
The action filed by Jackson and Hunter, in contrast, arose out of a disagreement with the Commission over the proper application of the Coastal Act’s ac *164 cess provisions to a particular permit application. The two named plaintiffs were coowners of a parcel of land abutting on the Pacific Ocean, in the Mussel Shoals area of Ventura County. The western boundary of the property is the line of mean high tide. From that line, for a distance of approximately 100 to 140 feet in an easterly direction, the parcel consists of a sandy beach. At the edge of the beach there is a subsurface revetment or seawall, adjacent to a single-family residence.
During unusually severe winter storms in early 1978, high waves threatened to damage the residence. To protect their property, the owners improved the existing seawall by adding armour rock below the sandy surface. Subsequently, the Commission notified them that a permit was required for the repairs that had been made. The owners ultimately applied for a permit, which was granted on condition that they dedicate a lateral easement for public access across the entire sandy beach from the line of mean high tide to the toe of the seawall.
The property owners challenged the permit condition by petitioning for a writ of administrative mandamus in the superior court. (See Pub. Resources Code, § 30801; Code Civ. Proc., § 1094.5.) The court granted the writ, finding that the improved seawall was necessary to protect the residence from the ocean. It also found that the area where the improvements were made was stable because the beach was accreting, i.e., accumulating sand as it advanced seaward. The seawall had no adverse impact on the supply of sand to the beach, and it did not interfere in any way with the natural processes in the shorezone. Finally, the court found the evidence insufficient to support the Commission’s finding that the seawall improvement adversely affected public access to or across the beach. Legal support for the court’s grant of mandamus is found in Public Resources Code section 30235, which specifically allows the construction of seawalls to protect existing structures, and in Public Resources Code section 30212, subdivision (b), which provides exemptions from the access requirements of the Coastal Act for repairs and improvements that do not adversely impact on public access.
The Commission appealed from the ruling, but then moved for a dismissal with prejudice after the completion of briefing (see Cal. Rules of Court, rule 19(b)) and admitted in a letter to the Court of Appeal that “the evidence, in that record was not, upon further reflection, sufficient to support the imposition of such [an access] condition given [the Commission’s] present interpretation of the public access requirements of the Coastal Act.”
Attorneys for the Pacific Legal Foundation, which was representing Jackson and Hunter as their appellate counsel, stated in a letter to the Court of Appeal that they would not oppose the dismissal; however, they explained that they intended to file a post-dismissal motion for attorney fees under Code of Civil Pro *165 cedure section 1021.5. The appeal was dismissed and the remittitur issued. The Court of Appeal later recalled the remittitur, consolidated the motion for attorney fees in Jackson with the pending appeal in Pacific Legal Foundation, and issued a single opinion disposing of the motion for fees and the merits of Pacific Legal Foundation. We then granted a hearing to examine the validity of the Commission’s access guidelines.
I.
Jackson v. California Coastal Commission
Before proceeding to the merits, it is necessary to discuss at'the outset whether the motion for attorney fees was properly before the Court of Appeal. Pacific Legal Foundation first requested attorney fees under section 1021.5 on November 11, 1981, in its letter responding to the Commission’s motion to dismiss the appeal. Dismissal was ordered on December 16, 1981, and the remittitur issued on December 24. On January 1, 1982, Pacific Legal Foundation submitted a formal motion for fees but was informed by the clerk that the remittitur had already issued. The following day, the remittitur was recalled and the motion was filed. Subsequently, the Jackson case was consolidated with Pacific Legal Foundation. 3
The legal principles applicable to the recall of remittiturs are fairly well settled. “Other than for the correction of clerical errors, the recall may be ordered on the ground of fraud, mistake or inadvertence. The recall may not be granted to correct judicial error. ... [A] decision is inadvertent if it is the result of oversight, neglect or accident, as distinguished from judicial error.”
(Southwestern Inv. Corp.
v.
City of L.A.
(1952)
The Commission does not dispute that the remittitur was properly recalled, but instead argues that the dismissal of the appeal divested the Court of Appeal of jurisdiction over the cause, preventing it from ruling on the motion for attorney fees. However, the recall of the remittitur had the effect of reinstating the court’s jurisdiction over the appeal, rendering disposition of the motion appropriate. The situation is analogous to an appellate court’s retention of jurisdiction over the question of attorney fees after the final disposition of the merits of an appeal.
(Serrano
v.
Priest
(1976)
We next address the question whether plaintiffs are entitled to an award of appellate attorney fees under the “private attorney general” theory codified in Code of Civil Procedure section 1021.5. That section allows a court to award fees to a party if (1) the action “has resulted in the enforcement of an important right affecting the public interest”; (2) “a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons”; (3) “the necessity and financial burden of private enforcement are such as to make the award appropriate”; and (4) “such fees should not in the interest of justice be paid out of the recovery, if any.” We first applied section 1021.5 in
Woodland Hills Residents Assn., Inc.
v.
City Council
(1979)
In the case at bar, the dismissal of the Commission’s appeal obviated the need for any further action on the merits of Jackson by the Court of Appeal. That court’s sole substantive ruling was that Pacific Legal Foundation should *167 recover the value of its services as appellate counsel. Trial counsel had requested fees only under Government Code section 800, however, and the trial court therefore made no findings on the existence of the criteria of section 1021.5. Yet, because the present record establishes as a matter of law that plaintiffs are not entitled to attorney fees under the latter statute, there is no need to prolong this proceeding by remanding it to the trial court for a factual ruling on the availability of such fees.
The record demonstrates that the primary effect of the judgment was to invalidate the particular permit condition imposed in light of the limited facts of Jackson. The court granted a writ of administrative mandamus because the findings of the Commission forming the basis for the exaction in question were not supported by substantial evidence. Specifically, the court found that evidence was lacking to support the Commission’s finding that the installation of armour rock in front of the plaintiffs’ seawall would either adversely impact on public access along the beach or affect the natural shoreline processes in the area; it was clear that the boundary between land and sea was located a substantial distance from the revetment in question. The court also concluded, on the basis of the absence of evidence to support the Commission’s factual determinations, that the permit condition effected an unconstitutional taking of an interest in plaintiffs’ property.
Although we have no doubt that the right to ‘be free from the deprivation of private property interests in an arbitrary manner may rise to the level of an “important right affecting the public interest,” it is equally plain that the grant of administrative mandamus under the limited factual circumstances shown here did not result in conferring a “significant benefit” on a “large class of persons.” The decision vindicated only the rights of the owners of a single parcel of property. It in no way represents, for example, a ringing declaration of the rights of all or most landowners in the coastal zone, nor will it “certainly lead to the Commission’s abandoning its prior unconstitutional practices of conditioning statutorily authorized permits upon an individual’s surrender of his private property,” as the plaintiffs contend. It is more likely that the Commission will heed the decision simply by striking conditions imposed under similar factual circumstances. We conclude that plaintiffs are not entitled to appellate attorney fees under section 1021.5.
II.
Pacific Legal Foundation v. California Coastal Commission
The parties differ sharply in their views on the meaning and validity of the guidelines, but they both urge us to reach the merits of this proceeding. Referring to the facts of several pending cases challenging particular permit conditions, plaintiffs contend that the continuing application of the policies em *168 bodied in the guidelines is in issue; alternatively, they argue that their facial challenge to the validity of the guidelines is by itself a sufficient “actual controversy” admitting of declaratory relief. The Commission adopts the position that although declaratory relief is unavailable because no actual controversy exists, administrative mandamus is nonetheless an appropriate remedy. As will appear, neither of these positions is wholly acceptable.
Initially, we may dispose of the Commission’s argument that administrative mandamus is an appropriate remedy for testing the validity of administrative regulations in the abstract. The Legislature obviously intended that a wide range of persons be able to enforce the provisions of the Coastal Act through the mechanism of petitioning for a writ of administrative mandamus. Public Resources Code section 30801 creates broad standing to bring such actions, expressly referring to Code of Civil Procedure section 1094.5. Section 30801 provides in pertinent part: “Any aggrieved person shall have a right to judicial review of any decision or action of the commission ... by filing a petition for a writ of mandate in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure . . . . [t] For purposes of this section . . ., an ‘aggrieved person’ means any person who, in person or through a representative, appeared at a public hearing of the commission ... in connection with the decision or action appealed, or who, by other appropriate means prior to a hearing, informed the commission ... of the nature of his concerns . . . .”
The Commission maintains that its adoption of the guidelines was a “decision or action” within the meaning of section 30801, and is thus reviewable under section 1094.5. This contention overlooks the well-settled rule that administrative mandamus is not available to review quasi-legislative actions of administrative agencies. (E.g.,
Strumsky v. San Diego County Employees Retirement Assn.
(1974)
The action under consideration—adoption of guidelines interpreting the Coastal Act’s access provisions—unquestionably falls within the category of quasi-legislative agency action, as opposed to quasi-judicial or adjudicatory proceedings. (See generally
Horn
v.
County of Ventura
(1979)
In any event, a basic prerequisite to judicial review of administrative acts is the existence of a ripe controversy. Plaintiffs have attempted to meet this requirement by referring to the facts of a number of other cases now pending in the superior courts and Courts of Appeal of this state. One case has even resulted in a published opinion.
(Georgia-Pacific Corp.
v.
California Coastal Com.
(1982)
Although it did not identify the issue as such, the trial court grappled with the problem of ripeness and eventually concluded that it could not decide the validity of the guidelines except when faced with a specific exaction. 6 The parties appear anxious to have us ignore it, but the ripeness problem remains. In order to reach the merits of plaintiffs’ challenges to the guidelines, we must first determine that the issues raised are sufficiently concrete to allow judicial resolution even in the absence of a precise factual context.
The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. (See generally
People
ex rel.
Lynch
v.
Superior Court
(1970)
A logical starting point for a discussion of the concept of ripeness is the following general statement from
Aetna Life Ins. Co.
v.
Haworth
(1937)
The federal courts have frequently addressed the issue of ripeness in the precise context here presented—an attempt to obtain review of the propriety of administrative regulations prior to their application to the party challenging them. (See Davis, Administrative Law Treatise (1970, 1976 & 1982 Supps.) §§ 21.00, 21.06.) The approach that has developed is summed up in the following passage from
Abbott Laboratories
v.
Gardner
(1967)
In
Abbott,
a group of drug manufacturers sought judicial review of federal regulations governing the labeling of drugs. The regulations were promulgated
*172
to interpret a federal statute governing such labeling. The court found that “the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage. ”
(Id.
at p. 152 [
Under the federal approach, plaintiffs’ posture lacks the urgency and definiteness necessary to render declaratory relief appropriate. Although their constitutional claims are impossible to weigh in the abstract,
7
their main contentions relate to the narrower question whether the guidelines reasonably interpret the public access portions of the Coastal Act. It is true that the parties’ interests are adverse, and the issues have been thoroughly addressed in the voluminous briefs on file. (See
Van Atta
v.
Scott
(1980)
The second test, i.e., “the hardship to the parties of withholding court consideration,” is also not met. Coastal landowners are not immediately faced with the dilemma of either complying with the guidelines or risking penalties for
*173
violating them; that situation will not arise unless and until they apply for a development permit and suffer the imposition of invalid dedication conditions. As far as the parties to this action are concerned, the most significant effect of the guidelines thus far has been to generate a difference of opinion as to their validity, and that is obviously not enough by itself to constitute an actual controversy.
(Winter
v.
Gnaizda, supra,
Our decision in
Selby Realty Co.
v.
City of San Buenaventura, supra,
Plaintiffs argue that Selby is distinguishable; they point out that adoption of a general land use plan is different from the adoption of interpretive guidelines because a general plan requires legislative implementation through the passage of zoning ordinances, whereas the guidelines require only administrative implementation through the permit decisions of the Commission. The suggested distinction consists more of shadow than of substance.
The primary concern expressed in Selby was that courts not be drawn into disputes which depend for their immediacy on speculative future events. Con *174 trary to the implication of plaintiffs’ argument, the fact that the general plan may have required legislative, as opposed to administrative, implementation was irrelevant to our decision. We emphasized, instead, that the challenged plan had not been implemented at all: “The plan is by its very nature merely tentative and subject to change. Whether eventually any part of plaintiff’s land will be taken for a street depends upon unpredictable future events. If the plan is implemented by the county in the future in such manner as actually to affect plaintiff’s free use of his property, the validity of the county’s action may be challenged at that time. ” (Id. at p. 118.) The plaintiff in Selby thus could allege no direct and immediate effects on the use of his land arising from the mere adoption of the general plan; he was simply anticipating that the plan would someday be implemented at his expense.
Here also, plaintiffs’ claim of injury depends for its urgency on the supposition that some of them will in the future desire to make improvements on their land requiring a permit from the Commission, that the Commission will condition permit approval on the dedication of access easements, and that the conditions imposed will violate either the provisions of the Coastal Act or constitutional protections of private property. Although it may be predicted with assurance that some of the plaintiff landowners will eventually wish to make improvements on their property, it is sheer guesswork to conclude that the Commission will abuse its authority by imposing impermissible conditions on any permits required. The guidelines are not mandatory. They do not require the Commission to impose access conditions in any particular circumstances, but rather adopt a flexible approach: the Commission is to determine the appropriateness of access exactions on a case-by-case basis. Thus, the potential effects of the guidelines are even less concrete than those of the general plan at issue in
Selby.
If the Commission does impose questionable conditions, the affected landowners may of course pursue their remedy of a petition for writ of administrative mandamus to review the factual and legal bases for the conditions imposed, as did Jackson and Hunter. (See also
Georgia-Pacific Corp.
v.
California Coastal Com., supra,
In Jackson the motion for attorney fees is denied. In Pacific Legal Foundation the judgment is affirmed.
*175 Richardson, J., Kaus, J., Broussard, J., and White J., * concurred.
Bird, C. J., and Reynoso, J., concurred in the judgment.
Notes
The ballot argument in support of the measure stated: “Our coast has been plundered by haphazard development and land speculation. Beaches formerly open for camping, swimming, fishing and picnicking are closed to the public. Campgrounds along the coast are so overcrowded that thousands of Californians are turned away.” (See also
CEEED
v.
California Coastal Zone Conservation Com.
(1974)
The 1972 Coastal Act expressly authorized the Coastal Commission to utilize its permit approval power as a lever to pry access easement dedications from landowners desiring to develop their coastal properties. Former Public Resources Code section 27403 provided in part: “All permits shall be subject to reasonable terms and conditions in order to ensure: (a) Access to publicly owned or used beaches, recreation areas, and natural reserves is increased to the maximum extent possible by appropriate dedication.”
That section provides: “[T]he commission shall, consistent with the provisions of this chapter [Pub. Resources Code, §§ 30600-30627], prepare interim procedures for the . . . review ... of coastal development permit applications .... Such procedures shall include ... (3) Interpretive guidelines designed to assist local governments, the regional commissions, the commission, and persons subject to the provisions of this chapter in determining how the policies of this division [the Coastal Act] shall be applied in the coastal zone prior to certification of local coastal programs; provided however, that such guidelines shall not supersede, enlarge, or diminish the powers or authority of any regional commission, the commission, or any other public agency.”
The decision by the Court of Appeal to consolidate the two cases is troubling. The cases raised fundamentally different issues; their only similarity seems to have been that the Commission was a party and the Pacific Legal Foundation an appellate counsel in both cases. Jackson was a specific challenge to a dedication condition imposed as a prerequisite to approval of an application for a permit to validate a completed seawall improvement. The condition was imposed prior to the adoption of the access guidelines challenged in Pacific Legal Foundation. Moreover, whatever superficial similarity may have initially existed between the issues in both cases had vanished by the time of consolidation. The validity of the permit condition imposed on Jackson and Hunter was no longer in dispute; the parties’ only remaining bone of contention was the availability of attorney fees. Therefore, it was improper for the Court of Appeal to consolidate the two cases, as they shared no common issues. Nonetheless, both causes are before us after the grant of a hearing, and it would serve no discernible purpose to bifurcate the proceeding now. We therefore take the most efficient course by disposing of both matters by a single opinion, being careful not to consider the facts of Jackson when analyzing the distinct issues presented in Pacific Legal Foundation.
Section 30803 states in part: “Any person may maintain an action for declaratory and equitable relief to restrain any violation of this division [the Coastal Act].” It parallels Government Code section 11350, which makes declaratory relief generally available to review administrative regulations. Section 11350 has no application to the guidelines, however, because the Legislature specifically exempted the guidelines from the provisions of the California Administrative Procedure Act. (Gov. Code, § 11340 et seq.) The guidelines were authorized under Public Resources Code section 30620, subdivision (a)(3). However, the Legislature also enacted Public Resources Code section 30333, which provides that “the commission may adopt rules and regulations to carry out the purposes and provisions of this division [the Coastal Act], and to govern procedures of the commission. [(] Except as provided in . . . paragraph (3) of subdivision (a) of Section 30620, these rules and regulations shall be adopted in accordance with the provisions of [the Administrative Procedure Act].” (Italics added.)
Section 30804 declares: “Any person may maintain an action to enforce the duties specifically imposed upon the commission, any regional commission, any governmental agency, any special district, or any local government by this division [the Coastal Act].” It appears designed in part to make traditional mandamus available to enforce ministerial duties imposed on the Commission by the Coastal Act.
The trial judge at one point remarked: “I suppose it might be theoretically possible that the literal application of the policy guidelines to some theoretical fact situation could result in someone being deprived of their property rights. But in all of the fact situations that I have conjured up in my own mind and have been suggested seem to have been provided either by legislative exception or by flexibility in the guidelines themselves. In other words, don’t we get back to the same place that we should make a determination on an individual case basis?” Later, when denying plaintiffs’ motion for summary judgment, the judge reiterated his concern with the problem of ripeness: “I think the question of whether the application of these guidelines would be contrary to the legislative mandate or to the constitution is something that must be left to an individual case.”
In the context of regulations limiting land use, several cases have recognized that when a particular statute or ordinance is said to effect an unconstitutional taking of private property, the claim is best examined by reference to a specific set of facts. In
Agins
v.
City of Tiburon
(1979)
Referring to a number of First Amendment cases (see, e.g.,
People
v.
Glaze
(1980)
We must also reject plaintiffs’ final contention that the guidelines are presently reviewable because they are incorrect and therefore in excess of the Commission’s authority. (See Pub. Resources Code, § 30620, subd. (a)(3).) The claim begs the question whether the issue of the guidelines’ correctness is ripe for decision.
Assigned by the Chairperson of the Judicial Council.