Tag: California Coastal Act

SECOND DISTRICT FINDS 90-DAY STATUTE OF LIMITATIONS APPLIES TO LAWSUIT ALLEGING CITY FAILED TO OBTAIN COASTAL DEVELOPMENT PERMIT PRIOR TO ADOPTING SHORT-TERM RENTAL ORDINANCE

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In Coastal Act Protectors v. City of Los Angeles (2022) 75 Cal.App.5th 526, the Second District Court of Appeal held a lawsuit alleging the City of Los Angeles was required to obtain a coastal development permit (CDP) prior to the adoption an ordinance imposing restrictions on short-term vacation rentals was subject to the 90-day statute of limitations in Government Code section 65009 subdivision (c)(1)(B). Because the lawsuit was not filed with 90 days, the court dismissed the case.

Background

The City adopted an ordinance imposing restrictions on short-term vacation rentals in December 2018. More than a year later, Coastal Act Protectors (CAP) filed a lawsuit seeking a writ of mandate to enjoin the City from enforcing the ordinance in the Venice coastal zone until the City obtained a CDP pursuant to the California Coastal Act, arguing that the ordinance constituted a “development” under the Act.

The trial court concluded that the 90-day statute of limitations in Government Code section 65009, subdivision (c)(1)(B), applied to the City’s adoption of the ordinance, and CAP’s petition was therefore untimely. It reasoned that the City’s purported duty to obtain a CDP was a procedural task to perform in enacting a lawful ordinance; therefore, CAP’s petition challenging the City’s failure to obtain a CDP constituted an action to “attack, review, set aside void, or annual” the decision of the City to adopt the ordinance, bringing it within the ambit of Government Code section 65009 subdivision (c)(1)(B). The trial court also addressed the merits of the petition and concluded that the ordinance was not a “development” under the Coastal Act. CAP appealed.

Court of Appeal’s Decision

On appeal, CAP argued that the City’s purported failure to comply with the Coastal Act when it adopted the ordinance was not an “action” or “decision” contemplated by section 65009 of the Government Code, but was instead subject to the three-year statute of limitations in Code of Civil Procedure section 338, subdivision (a), for actions “upon a liability created by statute.”

The Court of Appeal agreed with the trial court that CAP’s petition constituted an action to “attack, review, set aside void, or annual” the decision of the City to adopt the ordinance, and therefore, the 90-day limitations period applied. The court explained that, unlike in cases where it would have been impossible for a petitioner to bring a lawsuit within 90 days, the Coastal Act predated the County’s ordinance. If the City did have a duty to obtain a permit for application of the ordinance to residences in the Venice coastal zone, the court held, that duty would have existed when the City enacted the ordinance. The statute of limitations in the Government Code therefore applied. Because CAP waited over a year to file suit, the Court of Appeal agreed with the trial court that the petition was untimely. The court concluded by noting its determination comported with the Legislature’s stated intent to “provide certainty for property owners and local governments regarding” local zoning and planning decisions. (Gov. Code, § 65009, subd. (a)(3).)

Since its holding on the statute of limitations issue was dispositive, the Court of Appeal did not address whether the ordinance constituted a “development” subject to the CDP requirements of the Coastal Act.

– Elizabeth Pollock

Fourth District Affirms California Coastal Commission’s Authority to Impose Conditions on Coastal Development Permits Under Local Coastal Programs

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On September 19, 2019, the Fourth District Court of Appeal issued its decision in Lindstrom v. California Coastal Commission (2019) 40 Cal.App.5th 73, in which the appellate court partially reversed the trial court’s decision and held that the California Coastal Commission did not abuse its discretion with regard to three of four special conditions imposed on a coastal development permit for a residential project in the City of Encinitas. In upholding the three special conditions, two of which concerned setback requirements and the other prohibiting the construction of any shoreline protective devices, the court of appeal found the conditions to be consistent with the City’s local coastal program and within the Commission’s authority. The court ordered that the fourth condition be deleted or revised, however, as it found the Commission’s requirement that the home be removed if “any government agency” orders so “due to a natural hazard” to be both overly broad and unreasonable.

Background

In 2012, the Lindstroms applied for a coastal development permit with the City of Encinitas (City) to build a home atop a 70-foot high ocean-side bluff. To comply with the City’s Local Coastal Program (LCP), the permit application included a geotechnical report prepared by Geotechnical Exploration Inc. (GEI), an engineering firm hired by the Lindstroms. The LCP required the report to, among other things: (i) certify that the development would not endanger the bluff or require future bluff stabilization devices (i.e. coastal armoring or seawalls) based on a 1.5 safety factor over a 75-year time period, and (ii) calculate the minimum setback required for the development – a figure that could not be less than 40 feet. The GEI report concluded the proposed project could be built with a 40-foot setback without requiring bluff stabilizing measures in 75 years.

On May 2, 2013, the City’s planning commission approved the development permit with a condition requiring the Lindstroms to provide a letter stating the building could be removed in the event of endangerment. On May 28, 2013, GEI submitted a revised technical analysis which concluded the earlier report erred in calculating the development’s feasible setback. The new report stated the project would require a 72.25-foot setback, and proposed an alternate analysis based on the “natural angle of repose,” which would yield a 39.7-foot setback.

In June 2013, two Coastal Commission Commissioners appealed the City’s approval of the permit on grounds that it was inconsistent with the LCP. During the appeal process, the Lindstroms hired a second engineering firm, TerraCosta Consulting Group (TCG) and requested the Commission delay its decision. In October 2015, TCG prepared a new geotechnical report which concluded the slope would be safe with a 40-foot setback at a 1.29 safety level – a figure lower than the LCP-mandated 1.5 safety level.

The Coastal Commission heard the appeal in July 2016. As part of the appeal, a staff geologist concluded the proper setback should be 60 to 62 feet. The Commission agreed with the staff geologist, and approved the permit with four special conditions. The first condition (“Condition 1.a”) required construction to adhere to a 60- to 62-foot setback. The second condition (“Condition 3.a”) prohibited all use of coastal armoring devices. The third condition (“Condition 3.b”) required removal of the home in the event a government agency deemed occupancy unsafe due to natural hazards. The fourth condition (“Condition 3.c”) imposed mandatory remediation measures that the landowners would be required to take in the event hazardous bluff conditions threatened the structure.

In August 2016, the Lindstroms filed a petition for writ of mandate challenging the Commission’s conditions of approval. The trial court partially granted the petition and found in favor of the Lindstroms as to the first and second conditions (Conditions 1.a and 3.a) but found the Commission did not abuse its discretion in imposing the third and fourth conditions (Conditions 3.b and 3.c). The Commission and the Lindstroms appealed.

The Fourth District’s Decision

On appeal, the Fourth District Court of Appeal partially reversed the trial court’s holding, siding with the Commission on three of the four special conditions. Relying on the plain language in the City’s LCP and the Coastal Commission’s authority to impose reasonable conditions so long as they are consistent with the Coastal Act and the LCP, the court found the Commission did not abuse its discretion when it imposed Conditions 1.a, 3.a, and 3.c.  The court held that Condition 3.b, however, was improperly broad and not reasonably related to achieving the LCP’s purpose. That condition required that the Lindstroms remove their home in the event “any government agency” deemed it a “natural hazard.” That condition, according to the court, was poorly drafted and could have been read to require the Lindstroms to remove their home under unreasonable circumstances. The court therefore ordered the trial court enter a new judgment requiring the Coastal Commission to either delete or revise and clarify the condition.

 

Bridget McDonald

California Supreme Court Holds that CEQA Requires EIRs for Projects Located within Coastal Zones to Identify Potential “Environmentally Sensitive Habitat Areas” as Defined by the California Coastal Act.

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In Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, the California Supreme Court held that CEQA requires an EIR for a project located within a coastal zone to identify which areas in a project site might qualify as “environmentally sensitive habitat areas” (ESHA) under the California Coastal Act and account for those areas in its analysis of project alternatives and mitigation measures.

Background

Banning Ranch is a privately owned 400-acre tract of land. A small portion of the site is within the City of Newport Beach; the remainder is in unincorporated Orange County, within the City’s Sphere of Influence. The City’s general plan sets forth two options for the site. The preferred option is community open space. The second option would allow construction of up to 1,375 residential units, 75,000 square feet of retail facilities, and 75 hotel rooms. The City was unable to raise funds to buy Banning Ranch for open space. So in 2008, Real Party in Interest Newport Banning Ranch, LLC (NBR) submitted a proposal for development consistent with the second option for the site outlined in the general plan.

The Banning Ranch site is in a designated coastal zone under the Coastal Act. Under the Coastal Act, local governments within the coastal zone must submit a local coastal program for Coastal Commission approval. The program consists of a coastal land use plan (CLUP) and implementing regulations. The City has not yet adopted the regulatory component of its local coastal program, so the Coastal Commission exercises permitting authority over the Banning Ranch development. Further, the Banning Ranch site is not included in the City’s CLUP.

Because the site is within a coastal zone, the Costal Act places limits on what can be developed on the site. The Coastal Act specifies that ESHA “shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas.” (Pub. Resources Code, § 30240, subd. (a).) ESHA is defined as an area in which plant or animal life or their habitats are either are or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments. (Pub. Resources Code, § 30107.5.) In order to issue a coastal development permit for the project, the Coastal Commission must determine whether the project violates the ESHA requirements of the Coastal Act.

The City prepared an EIR for the Banning Ranch project. Although the EIR contained an extensive analysis of biological impacts, it did not identify potential ESHA or discuss the subject in substantive detail. Rather, it noted that the project would require a permit from the Coastal Commission, which would determine whether the site contained ESHA.

Comments on the draft EIR criticized the EIR for omitting an analysis of ESHA. The Coastal Commission submitted 15 pages of staff comments, suggesting that the EIR should address whether the proposed development was consistent with the policies of the City’s CLUP and the Coastal Act. The letter pointed out that the development must avoid impacts to ESHA and recommended that the EIR use the CLUP, which includes criteria for the determination of ESHA, to evaluate sensitive habitat areas and appropriate buffer zones. The letter concluded that based on its preliminary analysis, Coastal Commission staff had found the project to be inconsistent with the ESHA requirements of the Coastal Act. Commission staff requested that the EIR more fully consider alternatives that would avoid ESHA impacts.

In the final EIR, the City responded to comments, but maintained that it was not required to reach a legal determination as to whether Banning Ranch contained ESHA. The responses to comments explained that this determination would be made by the Coastal Commission at the time the applicant applies for a coastal development permit. The responses stated: “no conclusions of ESHA can and will be made by the City at this time as part of the EIR process that would in any way bind the Coastal Commission or elucidate on the Coastal Commission’s ultimate conclusions…. Rather, as appropriate under CEQA, the City has analyzed the impacts of the project, and concluded that they can be reduced to a less-than-significant level or avoided with appropriate measures.” In response to the Coastal Commission staff’s comments, the final EIR explained:

The purpose of the Draft EIR is to analyze a proposed project’s impact on the physical environment. It is not, in and of itself, a policy consistency analysis, except to the extent that such inconsistencies reveal impacts that otherwise are not discussed. … [T]he Draft EIR analyzes the proposed Project’s impact on biological resources, including federal and State listed endangered and threatened species, sensitive plant and animal species, and specific habitats such as wetlands and vernal pools. All impacts to these resources would be mitigated or avoided with the Mitigation Program. … The Draft EIR acknowledges that the Coastal Commission makes the determination as to whether any or all of these constitute ESHA under the Coastal Act, and application of the policies of the Coastal Act to the existing conditions on the Project site would be undertaken as part of the Coastal Commission’s Costal Development Permit process.

The City certified the final EIR in 2012 and approved the project. Petitioner Banning Ranch Conservancy (BRC) filed a petition for writ of mandate, contending that the EIR did not adequately analyze environmental impacts and mitigation measures with respect to ESHA, instead deferring this critical analysis to the Coastal Commission. BRC also alleged that the City had violated the requirement under the City’s general plan to coordinate with and work with the Coastal Commission to identify habitats for preservation, restoration, and development. The trial court denied the petition as to Petitioner’s CEQA claims, but granted the petition as to the General Plan claim. The Court of Appeal reversed, holding that the City complied with its General Plan. The Court of Appeal agreed with the trial court that the EIR complied with CEQA. With respect to BRC’s ESHA arguments, the Court of Appeal held that “CEQA does not require the City to prognosticate as to the likelihood of ESHA determinations and coastal development permit approvals.”

The California Supreme Court’s Opinion

The Supreme Court reviewed the City’s decision not to identify ESHA in the EIR under the “de novo” standard of review. The Court reasoned that “whether an EIR has omitted essential information is a procedural question” to which the court owes no deference to the agency.

Having established that the de novo standard of review applies, the Court rejected the City’s argument that CEQA imposes no duty on the City to reach conclusions as to whether the Project site includes ESHA. The Court explained that “CEQA sets out a fundamental policy requiring local agencies to ‘integrate the requirements of [CEQA] with planning and environmental review procedures otherwise required by law or by local practice so that all those procedures, to the maximum feasible extent, run concurrently, rather than consecutively.” (Slip Op. pp. 18–19, quoting Pub. Resource Code, § 21003, subd. (a).) Likewise, the CEQA Guidelines state that “‘[t]o the extent possible, the EIR process should be combined with the existing planning, review, and project approval process used by each public agency.”’ (Slip Op. p. 19, quoting CEQA Guidelines, § 15080.) Additionally, agencies are encouraged to consult with responsible agencies in preparing EIRs “‘so that the document will meet the needs of all the agencies which will use it.’” (Slip Op. p. 19, quoting CEQA Guidelines, § 15006, subd. (g).) Here, concluded the Court, the City ignored its duty to integrate CEQA review with the requirements of the Coastal Act, and “gave little consideration to the Coastal Commission’s needs.”

Further, reasoned the Court, the CEQA Guidelines require an agency to consider related regulatory regimes, such as the Coastal Act, when discussing project alternatives. In particular, an EIR must “‘describe a range of reasonable alternatives to the project,’ or to its location, that would ‘feasibly attain’ most of its basic objectives but ‘avoid or substantially lessen’ its significant effects.” (Slip Op. p. 19, quoting CEQA Guidelines, § 15126.6, subd. (a).) Among the factors that may be taken into account when addressing the feasibility of alternatives is whether there are “other plans or regulatory limitations [and] jurisdictional boundaries (projects with a regionally significant impact should consider the regional context).”’ (Slip Op., quoting CEQA Guidelines, § 15126.6, subd. (f)(1).) Projects with substantial impacts in coastal zones are, by definition, “regionally significant.” (Slip Op. pp. 19–20, citing CEQA Guidelines, § 15206, subd. (b)(4)(C).) Accordingly, “the regulatory limitations imposed by the Coastal Act’s ESHA provisions should have been central to the Banning Ranch EIR’s analysis of feasible alternatives.” (Slip Op., p. 20.)

The City and amicus curiae League of California Cities argued that lead agencies under CEQA are not required to make legal determinations that are within the sole jurisdiction of another agency. The League of Cities voiced a concern that ESHA identifications in EIRs might be subject to de novo judicial review. The Court rejected these arguments, reasoning that “a lead agency is not required to make a ‘legal’ ESHA determination in an EIR. Rather, it must discuss potential ESHA and their ramifications for mitigation measures and alternatives when there is credible evidence that ESHA might be present on a project site.”  (Slip Op., p. 21.) Such discussions would only be reviewed by the courts for “sufficiency.” (Ibid.)

The City further contended that the identification of potential ESHA would be merely speculative. The Court rejected this argument because, on the record before it, there had been positive identifications of ESHA on the Project site by Coastal Commission, and the applicant’s own consultant had identified areas of potential ESHA. The Coastal Commission staff had also offered the City assistance in identifying ESHA. Thus, the City had “ample bases” for an informed ESHA analysis. Further, the City routinely identified ESHA in EIRs for projects within the City’s CLUP. The fact that Banning Ranch is not in the CLUP did not excuse the City from identifying ESHA in the Banning Ranch EIR.

The Court also rejected the City’s argument that ESHA would be fully considered during the coastal development permitting phase of the project. The Court explained that such a delay “is inconsistent with CEQA’s policy of integrated review.” (Slip Op., p. 23, citing Pub. Resources Code, § 21003, subd. (a).) Further, the City’s position was inconsistent with CEQA’s requirement that lead agency’s “consider related regulations and matters of regional significance when weighing [the feasibility of] project alternatives.” (Slip Op., p. 23, citing CEQA Guidelines, § 15126.6.) Moreover, lead agencies “must take a comprehensive view in an EIR.” (Slip Op., p. 23, italics added by Court, citing Pub. Resources Code, § 21002.1, subd. (d).)

Finally, the Court rejected the City’s supposition that if the City were required to identify ESHA in the EIR, it would have to accept the Coastal Commission staff’s opinions about what constitutes ESHA and what mitigation measures are required. The Court noted that CEQA does not require a lead agency to agree with the opinions of other agencies. But to serve the public and decisionmakers, the EIR must lay out competing views. Although the Coastal Commission makes the final ESHA determination, the public and the members of the Coastal Commission are “entitled to understand the disagreement between commission staff and the City on the subject of ESHA.” (Slip Op., p. 25.)

Because the Court determined the Banning Ranch EIR violated CEQA for failing to identify ESHA and account for ESHA in its discussion of alternatives and mitigation measures, the Court declined to address the general plan issues.

Whit Manley, of counsel at Remy Moose Manley, LLP, represented Respondent City of Newport Beach in the case.

Second Appellate District Upholds Coastal Commission Development Permit Containing Lateral Public Access Easement

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In a short opinion, the Second Appellate District affirmed the Coastal Commission’s decision concerning a development permit issued by the County of San Luis Obispo in the case Bowman v. California Coastal Commission, Case No. B243015 (March 18, 2014). The Coastal Commission refused to lift a public access agreement contained in a coastal development permit when applicants applied for a second coastal development permit for the same property.

The subject property is approximately 400 acres in San Luis Obispo County and was owned by Walton Emmick. At the time of purchase, the property contained a single family residence and barn—both of which were in disrepair and unusable. The property includes about one mile of shoreline along noncontiguous parcels.

Emmick applied to the County for a coastal development permit (CDP) in 2002 for improvements to the house, installation of a septic system, and connection to an existing well. Emmick began to work on the residence pursuant to the construction permits, but the County told him to stop until the CDP was issued.

Emmick passed away in 2003, and the SDS Family Trust succeeded to the property. Subsequently, in 2004, the County approved the coastal development permit (CDP-1) for which Emmick had originally applied. The CPD was conditioned upon an offer to dedicate a lateral easement for public access along the shorefront portion of the property. The notice of approval informed the SDS Family Trust that it had 14 days to appeal.

No appeal was filed, but nine months later, the SDS Family Trust applied to the county for another coastal development permit (CDP-2). The permit application was for construction of a new barn to replace the existing one, which had collapsed. The application also included the same scope of work requested and approved under CPD-1 along with a request for the removal of the easement condition imposed by CPD-1. The county approved the CDP-2 application despite finding that the SDS Family Trust was in violation of the CDP-1 lateral easement condition because work had begun on the residence but no offer to dedicate had been recorded.

The Sierra Club, the Surfrider Foundation, and two coastal commissioners appealed the county’s approval of the CDP-2 application to the Coastal Commission. The appealing parties argued the county improperly eliminated a valid, existing easement which had been imposed by CDP-1. The Coastal Commission agreed with the appealing parties. The SDS Family Trust responded by filing a petition for writ of mandate, but the trial court ruled for the Commission. The trust appealed.

On appeal, the SDS Family Trust attempted to argue the access easement condition violated the Nollan and Dolan regulatory takings test. The appellate court did not reach this argument though. Instead, the appellate court pointed out that the county made a quasi-judicial determination when it granted CDP-1 and no one appealed that determination, so it became final. Therefore, the SDS Family Trust could not collaterally attack the county’s determination in a second permit proceeding after failing to exercise its administrative remedies during the first proceeding.

The SDS Family Trust then attempted to argue that they were a dissatisfied permit applicant who could simply “walk away” from the permit and apply for a new one. But the appellate court invoked the doctrine of collateral estoppel to reject this and similar arguments. The appellate court noted the purpose of collateral estoppel is to protect the finality of judgments and administrative decisions; so again, a party dissatisfied with an administrative decision must challenge that decision directly on appeal. The SDS Family Trust could walk away from the permit, but it could not walk away from County’s final determination that the lateral easement condition was a valid condition for granting the proposed permit.

This case serves as an important reminder for CEQA practitioners. While the CEQA statute is clear about the requirement that parties exhaust administrative remedies before seeking a court’s relief, this requirement applies wherever an administrative tribunal renders a quasi-judicial opinion.

Update: Court of Appeal reverses decision on rehearing.

Court of Appeal Holds Coastal Commission is Coastal Permitting Agency for Santa Monica Mountains

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In Hagopian v. State of California, the California Court of Appeal for the Second District held the California Coastal Commission did not err in finding land owners’ development to be in violation of the Coastal Act. The court found that the Commission was the authorized permitting agency for Los Angeles County, and that the county did not breach any statutory duty. The court affirmed the ruling below.

In 2007, the Hagopians, who reside in the Santa Monica Mountains, applied to the Coastal Commission for a permit exemption to construct a guest house on one of their three adjoining parcels of land. The exemption request was denied, but the Hagopians proceeded to construct a pool, tennis courts, and other structures on the property. They also installed vineyards. Despite being issued notices of violations and assuring the agency they would apply for a development permit, the Hagopians continued to build without a permit. The couple argued they did not need a permit because their property was exempt from the Coastal Act, the Commission had no jurisdiction, the property contained no environmentally sensitive habitat, and prior agricultural use of the property permitted current viticulture use. The Hagopians were granted at least six deadline extensions to seek a coastal development permit. The Commission held a hearing at which it determined the Hagopians were in violation of the Coastal Act. The Hagopians sued.

The trial court found that the Commission was the duly authorized body to issue coastal development permits, and the County of Los Angeles was not obligated to take over that authority before its own local coastal program was certified. The Hagopians appealed, contending that the Coastal Commission proceeded without jurisdiction, denied them a fair hearing, and abused its discretion by making findings unsupported by the evidence. The Court of Appeal disagreed.

The court first laid out that the Coastal Commission has initial authority to issue coastal development permits. Once the Commission approves both the land use and implementation portions of a local coastal program, the program is certified, and the Commission must delegate its authority to the local government within 120 days. Here, the Commission never certified the implementation portion of Los Angeles County’s local coastal program for the Santa Monica Mountains area. Consequently, the Commission’s obligation to delegate permitting authority never arose, and the authority to regulate coastal development remained with the Commission.

The court also found that the Hagopians were not denied their due process rights and that the Hagopians had waived their contentions about an agricultural use exemption by failing to raise it at the hearing. The Commission, the court noted, “has primary authority and expertise to pass on such matters.” Finally, the court rejected the Hagopian’s contention that Los Angeles County must be compelled to complete the local implementation plan process, which had languished after the 120 day deadline passed in 1986.