By Leslie Z. Walker
In February of 2008, the state Court of Appeal, Second Appellate District held in Douda v. California Coastal Commission (2008) 159 Cal.App.4th 1181, that the Commission, when issuing a coastal development permit, may designate environmentally sensitive habitat area if a local coastal plan (“LCP”) for the area has not been certified.
In November of 2001, the Doudas filed an application for a coastal development permit, seeking to build a two-story single family residence that would be a total of 5,804-square-feet and would stand 35-feet high; a 1,092-square-foot garage; a septic system; and a pool and spa. The development would be approximately four miles from the coast near the Santa Monica Mountains. The Coastal Commission (“Commission”) denied the application based on the finding that the development would be inconsistent with the policies stated in Chapter Three of the Coastal Act: “environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values,” and “the scenic and visual qualities of coastal areas shall be considered and protected as a resource of public importance,” (“Chapter Three Policies”). (Pub. Resources Code, §§ 30240, 30251.) According to the Commission, the coastal sage scrub on the property met the definition of environmentally sensitive habitat area and the development would be visible from Mulholland highway and planned public trails. The Commission additionally found that the proposed development would prejudice Los Angeles County’s ability to prepare a LCP. The Doudas filed a petition for writ of administrative mandate and the trial court upheld the denial of the application. The Doudas appealed.
Under the Coastal Act, each local government must either prepare a LCP for the portion of the coastal zone within its jurisdiction, or request that the Commission prepare it. (Pub. Resources Code, § 30500, subd. (a).) The Commission must certify that the land use portion of the LCP substantially conforms with the Chapter Three Policies. (Pub. Resources Code, § 30604.) A person wishing to undertake development in the coastal zone must obtain a coastal development permit. (Pub. Resources Code, § 30600, subd. (a).) If a LCP has been certified, then permits are obtained from the local government implementing the coastal program. That agency issues a permit if the proposed development conforms to the certified LCP. If a LCP has not yet been certified, the Commission or local government is the issuing agency and issues a development permit if the proposed development conforms with the Chapter Three Policies, and the permitted development will not prejudice the ability of the local government to prepare a LCP. A certified land use plan exists for the coastal zone in the Santa Monica Mountains but a certified LCP does not.
The Doudas argued on appeal that the Commission does not have the authority to designate environmentally sensitive areas because 1) the Commission only has the authority to determine whether or not a proposed development conforms to a certified land use plan or a certified LCP; 2) the Commission’s power to designate environmentally sensitive habitat expired on September 1, 1977; and 3) local governments have exclusive control over the content of the LCP. The Doudas further argued that the commission lacked the authority to regulate scenic and visual resources.
The Doudas first argued that the issuing agency’s only task was to determine whether a proposed development conformed to a certified LCP. The Commission argued, however, and the court agreed, that the issuing agency is obligated to uphold Chapter Three Policies. The court explained that the oversight given to an issuing agency prior to the certification of a LCP is much broader than the oversight given to it after certification. In the former case, the issuing agency must ensure that the Chapter Three policies are met, while in the latter, the issuing agency must do no more than confirm compliance with the Coastal Act.
The Doudas next claimed that since Public Resources Code section 30502 provided the Commission with the power to designate environmentally sensitive coastal resource areas until September 1, 1977, the Commission’s ability to designate environmentally sensitive habitat areas (“ESHA”) terminated in September 1977. ESHA is not defined in the Coastal Act, but environmentally sensitive area is. An environmentally sensitive area is:
any area in which plant or animal life or their habitats are either rare 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.)
Sierra Club v. California Coastal Commission (1993) 12 Cal.App.4th 602 held that Section 30107.5 of the Public Resources Code also defines ESHAs. Sensitive coastal resource areas, on the other hand, are "those identifiable and geographically bounded land and water areas within the coastal zone of vital interest and sensitivity." (Pub. Resource Code, § 30116.) The court quoted LT-WR, L.L.C. v. California Coastal Commission, (2007) 152 Cal. App. 4th 770, 792-793 explaining that the two are not synonymous:
the Legislature provided the Commission only a brief period in which to designate sensitive coastal resource areas. [Citations.] However, that limitation does not prevent the Commission from implementing its obligation to protect [environmentally sensitive habitat areas] pursuant to [section 30240].
The Doudas next argued that since Public Resources Code section 30512 provides that the Commission’s review of a land use plan is limited to a determination as to whether the land use plan conforms to the Chapter Three Policies, Section 30512 gives local agencies exclusive control over the content of land use plans and LCPs. The court rejected this interpretation finding instead that the LCP’s issuing agency is obligated to reject developments that contravene the policies of the Coastal Act but is powerless to force local government to select one use that conforms to the policies of the Coastal Act over other uses that also conform.
Finally, the Doudas argued that the Commission lacked the authority to regulate scenic and visual resources four and a half miles inland. The Coastal Act does not define coastal areas but does define coastal zone. The Doudas argue that the two are not synonymous. Interpreting the Coastal Act broadly, the court found that coastal area must be coextensive with coastal zone. As further argument in favor of treating the terms interchangeably, the court found that if a coastal area is smaller than a coastal zone, the issuing agency and local governments will have no guidance as to where the coastal area ends.
In the first two months of this year, courts have addressed both the extent and the limits of the Commission’s ability to designate ESHAs. In January, the state Court of Appeal, First Appellate District held in Security National Guaranty v. California Coastal Commission (2008) 159 Cal.App.4th 402, that the Commission lacks the authority under the Coastal Act to declare a site an EHSA when a certified LCP exists for the area. Douda v. California Coastal Commission, supra, 159 Cal.App.4th 1181, articulates the rule in circumstances in which a certified LCP does not exist, in which case, the Commission, as the agency issuing the coastal development permit, may designate an EHSA.
Leslie Walker is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.