Opinion
— We uphold an injunction under the McAteer-Petris Act (Gov. Code, § 66600 et seq.; the Act) 1 against the offshore mooring of certain vessels in Richardson Bay as constituting “fill” for which permits from the San Francisco Bay Conservation and Development Commission (BCDC) are required under section 66632, subdivision (a) of the Act. We also reverse the denial of relief against the mooring of one other vessel.
Background
This action began as one for writ of mandate and declaratory relief against the Richardson Bay Regional Agency (a local joint powers agency), its constituent local governments of Mill Valley, Sausalito, Tiburón, Belvedere and Marin County, and some local officials. Vessel owners and operators suing as individuals and unincorporated associations calling themselves “The Mariners of Richardson Bay” and “Richardson Bay Community Association” filed suit in March 1988 to bar enforcement of a regional agency ordinance (No. 87-1) which, among other things, prohibited the offshore mooring of residential-use vessels in Richardson Bay and Belvedere Cove for periods longer than 30 days. BCDC intervened as a defendant to protect its interest in enforcement of the ordinance and its Richardson Bay Special Area Plan (the special area plan). The regional agency had been formed to implement the special area plan cooperatively with BCDC, and the ordinance was a part of that effort.
BCDC cross-complained for enforcement of the Act’s permit requirements (§ 66632, subd. (a)), seeking an injunction and civil penalties against *117 those plaintiffs who owned, controlled or lived aboard the disputed vessels. The regional agency then cross-complained against some plaintiffs, seeking nuisance abatement and injunctive relief under county code provisions and the ordinance. Ultimately, procedural developments and a memorandum of agreement (MOA) between other parties left only BCDC’s cross-action, which was tried in two parts and finally disposed of by the orders which we review here. 2
The court severed and tried first the case against Douglas Storms, who owned and resided on the Juniper, a 32-foot sailboat which he had moored in a special anchorage area of the bay for about 2 years and which by the time of trial he moored in a location assigned under the MOA. The court denied relief. Finding the boat “capable of active, self-propelled navigation,” it rejected BCDC’s arguments that the vessel was either floating “fill” or a “structure” (§ 66632, subd. (a)). 3 It also held, based on historical use of the Juniper’s mooring sites “ ‘since Gold Rush days,’ ” that its mooring had created no “substantial change in use” (ibid.) and, based on current compliance with the MOA, caused no harm which the Act was intended to prevent.
BCDC prevailed against all other cross-defendants. The court concluded that their various “floating structures” — docks, barges, mooring buoys, houseboats, etc. — were all “structures” and “fill” under the Act. All were enjoined, with civil penalties imposed against two cross-defendants. The injunctions were conditionally stayed as to all MOA signatories until the MOA’s April 1993 expiration date. Trial focused on whether the structures were navigable or “seaworthy,” how long they had remained moored and whether they had operable engines.
*118 Cross-defendants Lawrence W. Smith III, Cynthia Cadua, Larry Moyer, Diane Karasik and Louis Tenwinkle (defendants) appeal from the grant of relief. (Other cross-defendants have not appealed.) BCDC, after losing a motion for new trial as to Storms, cross-appeals from the denial of relief as to him.
Appeal
Defendants jointly raise several arguments against the court’s conclusion that their offshore residences were “fill” under section 66632, subdivision (a). We uphold the conclusion based on the facts and the statutory language and purpose.
Facts
Richardson Bay, a shallow arm of the greater San Francisco Bay, falls within BCDC’s jurisdiction under the Act. (§ 66610, subd. (a).) It also falls within concurrent federal jurisdiction and has been designated a special anchorage area. (33 C.F.R. § 110.126a.) Defendants’ vessels were all moored in publicly owned tide and submerged lands within the bay, without permits from BCDC. They were anchored or moored offshore, not berthed at marinas or other shore facilities, and lacked shore-connected utilities, including sewerage. By the time of trial in late April 1992, all vessels were in compliance with the MOA except those belonging to Tenwinkle, who had not signed it. Compliance earned the signatories temporary permits from the regional agency (but not BCDC; fn. 2, ante) and required, among other things, holding tanks for sewage and a “honey barge” sewage transfer service.
The Glass Barge is a steel-reinforced cement-hulled vessel owned by Larry Moyer and Diane Karasik. It had been the couple’s residence since July 1987, was moored within the BCDC’s jurisdiction through the time of trial and had no motor. Except for being onshore in fall 1990 in Galilee Harbor, where it was towed for repairs, the vessel was moored at or near its location near Waldo Point Harbor since at least early 1989. The court adjudged it “not seaworthy” and unable to be “safely navigated and maneuvered even in the protected waters of Richardson Bay.”
The Phoenix (or TeePee) — “a cement barge with a ‘Teepee’ shaped structure constructed on top of it” — is owned by Lawrence Smith and was attached to floating docks also owned by him. It was Smith’s principal residence and had been moored at or near its current location since at least July 1988. Smith testified that he had used three motors to move the vessel, *119 but the vessel had no permanently installed motor, and the court adjudged it “not seaworthy,” even in the protected bay waters.
Cynthia Cadua owned the Pitcairn, a 50-foot wooden motor launch modified “to increase the size of the cabin area available for use as living quarters.” She had lived there from the time she purchased it in October 1986 until spring of 1991 when, as the result of an injury, she moved into her parents’ home in Hayward. She lived in Point Richmond by the time of trial (April 1992) but intended to move back onto the vessel by summer. The Pitcairn had been moored at or near the same spot for nearly two years and, before then, for several months to a year at a time at other offshore locations in Richardson Bay. The court found that the vessel, whose anchor would take half a day to raise, “could conceivably be seaworthy for use in protected waters” but that its engine had no functioning exhaust system (the exhaust port had been sealed off during hull work) and had not had one “for some time.”
Louis Tenwinkle owned several structures. One, a barge with a crane on it, he acquired in 1991, but it had been sunken for some time by the time of trial, and had been posted for removal by local authorities at an estimated public cost of $60,000. The water was evidently only three to four feet deep, but the barge could not be raised and would have to be removed piece by piece. Moored in the same spot was the Upper Line, on which Tenwinkle had lived since late 1990; he lived there with his friend Lisa by the time of trial. He built the residence on the burned-out hull of a tugboat called the Kent in 1990, during this litigation. (His offshore residence before then, the Miller Avenue, was later found abandoned at a debris dock maintained by the Army Corps of Engineers (Army Corps), which later had it destroyed at a public expense of about $15,000.) A third vessel moored in the same spot was the Ballena, a steel work boat having a house on its aft end, an A-frame and winch, and two diesel engines. Tenwinkle at first used the boat for work but by the time of trial had not used it for a year or more, and neither of its engines worked. All three of the above structures sat moored together for at least a year before trial. 4 A fourth vessel, the Sioux City, was formerly a fishing boat. Tenwinkle built living quarters on it after it sank and was abandoned near the debris dock. It had no working engine, and he rented it out as a residence to a man to whom he was in the process of selling it at the time of trial.
*120 Section 66632
“To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary meaning. [Citations.] When ‘ “statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it.” ’ [Citations.] The plain meaning of words in a statute may be disregarded only when that meaning is ‘ “repugnant to the general purview of the act,” or for some other compelling reason . . . .’ [Citations.]”
(DaFonte
v.
Up-Right, Inc.
(1992)
The Act requires permits before persons or entities may “place fill” within areas of the BCDC’s jurisdiction, and it defines fill as (1) “earth or any other substance or material, including pilings or structures placed on pilings,” and (2) “structures floating at some or all times and moored for extended periods, such as houseboats and floating docks. . . .” (§ 66632, subd. (a); fh. 2, ante.) The second category, what we will call floating fill, is at issue here.
Floating fill has not been discussed in any published opinion yet obviously has a three-part definition, requiring a (1) structure (2) floating at some or all times and (3) moored for extended periods. Those elements are not defined further, but the added examples, “such as houseboats and floating docks” (§ 66632, subd. (a)), provide guidance that houseboats at least presumptively satisfy all three elements. Defendants therefore try to distinguish their various residential vessels from houseboats. The effort is unconvincing.
First, the vessels are all “structures.” Defendants call them “live-aboard anchor-outs,” urging that these vessels are more apt to be navigable and self-propelled, are thus more like boats and thus should not be deemed “structures” under the Act. However, we must construe the Act broadly to effectuate its purpose of comprehensive regulation of development of the bay and shoreline
(Leslie Salt Co.
v.
San Francisco Bay Conservation etc. Com.
(1984)
Seizing on the language “such as houseboats and floating docks” (§ 66632, subd. (a)), defendants invoke the doctrine of
ejusdem generis,
which holds that “ ‘ “where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The rule is based on the obvious reason that if the Legislature had intended the general words to be used in their unrestricted sense, it would not have mentioned the particular things or classes of things which would in that event become mere surplusage.” ’ [Citation.]”
(Peralta Community College Dist.
v.
Fair Employment & Housing Com.
(1990)
We see nothing dissimilar enough in defendants’ vessels to warrant excluding them from the general language. The asserted distinctions between houseboats and live-aboard anchor-outs center on presumed navigability and *122 self-propulsion of the latter. This is a doubtful distinction on the facts of this appeal, where defendants’ vessels are barely navigable, if at all, and apparently lack means of self-propulsion. Even so, whether a live-aboard vessel is capable of navigation or self-propulsion is a different inquiry than the pertinent statutory inquiry of whether the vessel has in fact remained “moored for extended periods” (§ 66632, subd. (a)). Defendants evidently view the Act as allowing limitless, haphazard obstruction of the bay by permanently anchored residential-use boats, simply because they are capable of moving and navigating under their own power. That is an absurd construction, at odds with the purposes of the Act. Section 66632, subdivision (a)’s language and purpose thus do not support the attempted distinction.
Nor do defendants gain anything in common understanding by calling their vessels more navigable, maneuverable or self-propelled than the usual houseboat. They concede that their residences are “vessels,” and one common source defines “vessel” in part as “a usu. hollow structure used on or in the water for purposes of navigation: a craft for navigation of the water; esp: a watercraft or structure with its equipment whether self-propelled or not that is used or capable of being used as a means of transportation in navigation or commerce on water and that usu. excludes small rowboats and sailboats . . . .” (Webster’s New Internat. Dict. (3d ed. 1965) p. 2547, italics added.) Another source similarly defines it as “Any structure designed to float upon and traverse the water for the carriage of persons or goods; a craft or ship of any kind, now usually one larger than a rowing-boat and often restricted to sea-going craft or those plying upon the larger rivers or lakes.” (19 Oxford English Dict. (2d ed. 1989) p. 574, italics added.) The vessels at issue here are all “structures” in ordinary meaning.
Finally, the record supports findings that these vessels were “floating at some or all times and moored for extended periods ....’’ (§ 66632, subd. (a).) Whatever the limitations of the phrase “moored for extended periods” (the special area plan and implementing ordinance generally define this as 30 days or more in one place), there is nó reason to doubt its application here, where evidence shows the vessels remaining moored for a year or longer. All three statutory elements for floating fill were thus satisfied.
Defendants find false support for a “navigation” distinction in BCDC’s regulations (Cal. Code Regs., tit. 14, § 10110 et seq.). First, they mistakenly call them enactments by the Legislature, of equal dignity with the Act, when in fact they are BCDC regulations which would be invalid if they altered or impaired the Act’s scope (Blumenfeld,
supra,
Navigability might also bear on whether a vessel serves a “water-oriented” versus “nonwater-oriented” use, but that distinction, contrary to defendants’ view, does not alone affect what constitutes fill. The Act directs that
“further filling
of the San Francisco Bay . . . should be authorized only when public benefits from fill clearly exceed public detriment from the loss of the water areas and
should be limited to water-oriented uses
(such as ports, water-related industry, airports, bridges, wildlife refuges, water-oriented recreation and public assembly, water intake and discharge lines . . . ) . . . .” (§ 66605, subd. (a), italics added.) Thus fill, floating or otherwise, may in some circumstances be deemed permissible for “water-oriented uses,” but this presupposes that it
is
fill. In other words, water-oriented use alone cannot remove a vessel from the definition of fill; at best it provides a possible reason for BCDC to allow it after weighing the public benefits and detriment. BCDC’s San Francisco Bay Area Plan (1969, as amended) (Bay Plan), a study which the Legislature has adopted as its own
(Save San Francisco Bay Assn.
v.
San Francisco Bay Conservation etc. Com.
(1992)
As envisioned in the Bay Plan, housing is neither a water-oriented nor a public-trust use under the Act.
(Mein
v.
San Francisco Bay Conservation etc.
*124
Com.
(1990)
We likewise do not reach defendants’ claims of error regarding the evidence, rulings and findings below about their vessels being “seaworthy” or “navigable.” Undisputed evidence showed “moor[ing] for extended periods,” and the court correctly found the structures to be floating fill (§ 66632, subd. (a)). No findings of navigability or seaworthiness could have altered those conclusions on these facts.
Injunction
Defendants dispute the propriety of injunction. They argue that there was no serious risk of irreparable harm, only past risk which was largely removed by the time of judgment (see generally,
Donald
v.
Cafe Royale, Inc.
(1990)
We find the injunction supported. The court found that the vessels were “fill” under the Act and moored without required permits from BCDC (§ 66632, subd. (a)). That was the essential violation of the Act, and there was no evidence that any of defendants had ceased mooring their vessels or obtained the required permits before judgment. What defendants seek by their attack on the peripheral issues of navigability and harm as to each vessel is a judicial reexamination of the wisdom of the statute, something which we cannot do under the rubric of “irreparable harm.” The Act is “environmental legislation that represents the exercise by government of the traditional power to regulate public nuisances. [Citation.] Such legislation ‘constitutes but “a sensitizing of and refinement of nuisance law.” ’ [Citation.]”
(Leslie Salt, supra,
*126 Notice of trial
Tenwinkle presents one additional argument, that the judgment is void as to him for failure to serve him with 15 days’ notice of the continued trial date of April 14, 1992. Tenwinkle acted in proprio persona and did not appear then or during the several hearing days through April 29, when the last evidence was taken and the case was submitted. We find no invalidity.
Subdivision (a) of Code of Civil Procedure section 594 provides that a party may try and bring to judgment an issue of fact in the absence of the adverse party but must first prove to the court’s satisfaction that 15 days’ notice of the trial was given. Subdivision (b) of the section requires notice by mail, served either by the clerk of the court 20 days, or by any party 15 days, beforehand. It provides that, if served by a party: “[Pjroof may be made by introduction into evidence of an affidavit or certificate pursuant to subdivision (1) or (2) of Section 1013a or other competent evidence. The provisions of this subdivision are exclusive.” (Code Civ. Proc., § 594, subd. (b).) Compliance with subdivision (a) is mandatory and jurisdictional
(Minkin
v.
Levander
(1986)
There was no proof below that Tenwinkle was given 15 days’ notice of the April 14 date. BCDC offered its efforts to effect substituted service on Tenwinkle, but this showed only 10 days’ notice and may have fallen short of strict subdivision (b) compliance in some other respects as well.
9
**9 Nevertheless, April 14 was a
continued
trial date to which the statute did not apply
*127
(Parker
v.
Dingman
(1975)
Trial of this action was initially set for October of 1991, but a series of events delayed it, among them severance of the trial against Storms, a peremptory challenge against one judge, reassignment to Judge Lynn O’Malley Taylor and a March 5, 1992 settlement conference before that judge which Tenwinkle personally attended. There is no need to explore events any earlier than March 5 because Tenwinkle’s personal attendance on that date gave him
actual
notice. Tenwinkle boldly claims that “whether [he] had
actual
notice is simply irrelevant” and that actual-notice cases predating the 1975 statutory changes noted in
Irvine
“no longer govern.” He is mistaken. “The purpose of the mandatory notice ... is merely to protect parties against trials, dismissals or judgments in their excusable absence. Hence, compliance may be waived or excused . ...” (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 80, p. 82.) For example,
“[a]ctual notice
for the required period is . . . sufficient to overcome any defect in the proof of service of notice,” and
“[i]ndirect notice
may be sufficient, where derived from . . . fixing of the time and place at the pretrial conference (imparts actual notice to counsel or parties present). . . .”
(Id.,
§ 80, at p. 82.) The current section does make its provisions “exclusive” on the manner of proof of service, resolving prior case law confusion on “what kind of proof was required to show that notice had been given”
(Irvine, supra,
*128
The per curiam opinion in
Irvine
dismissed a dispute about whether the absent party there “did or did not receive actual notice of trial,” suggesting that the arguments “might be relevant” in a hearing on a motion for relief from default (Code Civ. Proc., § 473) but were “not pertinent” to the issue of compliance with the notice provision.
(Irvine, supra,
The case had been assigned out for trial before Judge Taylor to commence March 5. Tenwinkle attended the settlement conference in chambers that day, right after which, the minutes reflect, the judge in open court continued the matter “to Master Trial Calendar on March 23, 1992, at 9:00 a.m.” At that time, the master calendar judge continued the matter to Judge Taylor’s calendar for April 7 at 9:30 a.m. Our record does not indicate whether Tenwinkle was present or made any inquiry. (A notice of continued trial date indicates that trial was set to commence April 7 and continue on April 8 and April 14.) For reasons not clear from the record (BCDC represents that Judge Taylor took ill), the matter was again continued and did not actually begin until April 14. BCDC explained to Judge Taylor its efforts to personally serve Tenwinkle with further notice and submitted a deputy sheriffs statements that, on April 10, he left notice at Tenwinkle’s vessel the Upper Line with Lisa, a woman whom the deputy knew to live there with Tenwinkle (see fn. 9, ante). Trial proceeded on April 14, 21, 22, 23, 28 and 29, without any appearance by Tenwinkle. The statement of decision contains a finding that Tenwinkle resided on the Upper Line “with his friend ‘Lisa’ »
*129
Tenwinkle’s presence at the March 5 settlement conference gave him actual notice that the matter was continued to March 23. Formal notice was excused
(Bird
v.
McGuire
(1963)
Cross-appeal
BCDC cross-appeals from that part of the judgment denying relief against the mooring of Douglas Storms’s vessel, the Juniper. In light of that trial record and our conclusions regarding the scope of floating fill under the Act, we hold that the court abused its discretion in denying relief.
The Juniper is a 32-foot sailboat which Storms resided on and kept moored in 2 sites on Richardson Bay for periods of a year or more each without a permit from BCDC. The court, persuaded that the Act did not cover vessels capable of “active, self-propelled navigation,” found that the vessel was not a “structure” and hence not “fill” (§ 66632, subd. (a)). As we have already held, however, “structure” plainly includes just such a live-aboard vessel, as substantially equivalent to a houseboat, and the Act does not support a distinction based on navigability except as the ability to navigate bears on whether a vessel has been “moored for extended periods”
(ibid.).
Storms offers a variation on the
ejusdem generis
argument, asserting that the illustrative phrase “such as houseboats and floating docks”
(ibid.),
by using the conjunctive “and” rather than the disjunctive “or,” means structures like
houseboats with floating docks attached.
We reject such a rigid
*130
meaning. It would absurdly result in floating docks
not
attached to vessels being exempt, for no discernible policy reason. Also, while it would be helpful to have statutory language directly illustrating what “structure” means (e.g.
Delucchi
v.
County of Santa Cruz
(1986)
The trial court thus erred as a matter of law in ruling that the Juniper was not a “structure.” That error led the court to decline considering whether the vessel was moored “for extended periods.” However, what conclusion to draw from undisputed facts is a question of law
(Morrison
v.
State Board of Education
(1969)
*131
Building on hypothetical questions he posed below to a BCDC executive director, Storms urges that the language “for extended periods” is unconstitutionally “vague and overbroad” in reach. However, while some of his hypotheticals revealed potential uncertainty in other circumstances, Storms is limited to a review confined to the facts of his own case
(Bowland
v.
Municipal Court
(1976)
We have already held that compliance with the MOA, with attendant mitigation of potential harms, does not remove the need for injunction. The trial court’s finding that “[n]o competent evidence” showed that Storms’s “navigable sailboat produces or threatens the type of harm to the environment which the Legislature contemplated” is simply wrong. It was based on MOA compliance, stressing pollution and arguable safety concerns of the Act over the Act’s overriding purpose of halting “self-generated and unregulated fill activities” which obstruct public use of bay waters.
(People
ex rel.
S. F. Bay etc. Com.
v.
Town of Emeryville
(1968)
Thus, on the facts before it, the court abused its discretion by not issuing an injunction. That conclusion leaves no need to consider whether an injunction was alternatively compelled for the mooring having effected a “substantial change in use” of bay waters. (§ 66632, subd. (a); see fn. 3, ante.)
*132 Disposition
The judgment is reversed insofar as it denies BCDC injunctive relief against the mooring of Storms’s vessel, and the cause is remanded with directions to issue an injunction and consider further relief. The judgment is in all other respects affirmed. Costs on the appeals and cross-appeal go to BCDC.
Kline, P. J., and Phelan, J., concurred.
Notes
All further section references are to the Government Code unless indicated otherwise.
BCDC and the regional agency defendants secured an order sustaining their demurrer to plaintiffs’ amended petition/complaint without leave to amend. Plaintiffs sought immediate review, but this court in December 1988 dismissed their appeal on motion (A044093). Later, under the MOA signed in 1990, the regional agency obtained dismissals of plaintiffs’ action and a parallel action in federal district court in return for permitting vessels to be temporarily moored in designated areas subject to various conditions, including the use of “honey barge” service to carry off sewage and prevent its discharge into bay waters. BCDC concluded that the agreement violated the Act and so refused to join it and continued with its own cross-action.
“Any person or governmental agency wishing to place fill, to extract materials, or to make any substantial change in use of any water, land or structure, within the area of the commission’s jurisdiction shall secure a permit from the commission and, if required by law or by ordinance, from any city or county within which any part of the work is to be performed. For purposes of this title, ‘fill’ means earth or any other substance or material, including pilings or structures placed on pilings, and structures floating at some or all times and moored for extended periods, such as houseboats and floating docks. For the purposes of this section ‘materials’ means items exceeding twenty dollars ($20) in value.” (§ 66632, subd. (a).)
Before Tenwinkle acquired the barge, he kept the Ballena and Upper Line (then still the Kent) moored in the same area but closer to shore, along with another of his vessels, the tugboat Helen Wilder, which by the time of trial had sunk and been estimated (before it sank) to cost $14,000 to remove.
The record is replete with evidence, some from the Regional Water Quality Control Board (RWQCB), that even small amounts of raw sewage (black water) introduce pathogens harmful to humans and wildlife and that the detergents found in galley, bath and shower water (gray water) harm fish. RWQCB had identified unsewered houseboats as a major remaining source of such pollution in Richardson Bay, where the problem is especially acute due to shallow waters, poor tidal flushing and intensive public use. RWQCB concerns about the use of holding tanks and “honey barge” pumping service, rather than shoreside sewer lines, arise from compliance-monitoring difficulties, expense, accidental discharge and spillage, holding capacity of tanks and user nonpayment for the service.
The Bay Plan, also without reference to the definition of fill, assumes that live-aboard boats are navigable. Its finding “e” under “Recreation” states: “Live-aboard boats are designed and used for active navigation but are distinguished from other navigable boats in that they are also used as a primary place of residence. Although residential use is neither a water-oriented [n]or a public trust use, live-aboard boats can be converted easily to a navigable, recreational use and, when properly located within a recreational boat marina, can provide a degree of security to the marina.” (Bay Plan, p. 21.) It continues in policy “4.c.” (id., atpp. 21-22): “Live-aboard boats should be allowed only in marinas and only if: (1) The number would not exceed ten percent of the total authorized boat berths unless the applicant can demonstrate clearly that a greater number of live-aboard boats is necessary to provide security or other use incidental to the marina use; (2) The boats would promote and further the recreational boating use of the marina (for example, providing a degree of security), and are *124 located within the marina consistent with such purpose; (3) The marina would provide, on land, sufficient and conveniently located restrooms, showers, garbage disposal facilities, and parking adequate to serve live-aboard boat occupants and guests; (4) The marina would provide and maintain an adequate number of vessel sewage pumpout facilities in locations that are convenient in location and time of operation to all boats in the marina, particularly live-aboard boats, and would provide the service free of charge or at a reasonable fee; and (5) There would be adequate tidal circulation in the marina to mix, dilute, and carry away any possible wastewater discharge. Live-aboard boats moored in a marina on July 1, 1985, but unauthorized by the Commission, should be allowed to remain in the marina provided the tests of (2), (3), (4), and (5) above are met. Where existing live-aboard boats in a marina exceed ten percent of the authorized berths, or a greater number is demonstrated to be clearly necessary to provide security or other use incidental to the marina use, no new live-aboard boats should be authorized until the number is reduced below that number and then only if the project is in conformance with tests (1), (2), (3), (4), and (5) above.”
Defendants urge that compliance with the MOA satisfied the Act’s goal of controlling and regulating bay fill. Not so. The Act places control and regulation in the hands of BCDC, and BCDC refused to join in the MOA.
Defendants wrongly contend that they had to be “landowners” in order to be held “strictly liable” for their unauthorized moorings. The case they cite concerned holding an owner of
*126
bayside land strictly liable for fill which the owner did not place there.
(Leslie Salt, supra,
Counsel for BCDC explained to the court on the morning of April 14: “I arranged to have Mr. Tenwinkle served with a notice of the continued trial date by the deputy sheriff today [probably Todt], [J] He was unable to locate Mr. Tenwinkle personally; however he left a *127 copy of the notice with the individual with whom Mr. Tenwinkle resides on his boat, the Upper Line.” Counsel submitted a copy of the notice and continued: “I also gave the deputy sheriff today [Todt] another subpoena and a new notice after we were unable to begin on the seventh, but when I went upstairs to pick those up this morning, the clerk could not find them. I will try and acquire those at the lunch hour and submit that to the Court as well.”
A “Notice of Continued Trial Date” filed April 14 has a “Sheriff’s Not Found/Non-Service Return” attached. Dated April 7 and signed by “R. Todt,” it states: “ ‘Notice of Hearing’ date only was left on barge with a female named Lisa. Mr. Tenwinkle was to pick up subpena at Civil Division/Sheriff s Dept, prior to court date. He did not.” In a version amended and signed by Todt on April 23 and admitted at trial that day as an exhibit, the deputy further declared: “Lisa is an adult female who I know of my own personal knowledge to live on Mr. Tenwinkle’s houseboat next to the crane barge in Richardson Bay. The notice was served on 4/4/92 @ 1531 hrs.” Tenwinkle asserts on appeal that the amendment was unsworn, did not satisfy the “affidavit or certificate” requirement (Code Civ. Proc., § 594, subd. (b)) and was somehow “incompetent hearsay” in its reference to personal knowledge. We do not decide.
Storms invites us to consider an April 1991 declaration by Senator (formerly Assemblyman) Nicholas C. Petris, one of the Act’s co-authors, who offered his “opinion” that “the term ‘fill’ . . . was not intended to include boats or other vessels moored offshore, whether or not used for residential purposes.” We decline. First, the Act’s unambiguous meaning makes resort to indicia of intent improper.
(Mutual Life Ins. Co.
v.
City of Los Angeles
(1990)