By Katherine J. Hart
In Bollay, et al. v. California Office of Administrative Law, et al. (2011) 193 Cal.App.4th 103 the Court of Appeal Third Appellate District (Court), considered whether a State Lands Commission (Commission) policy prohibiting development seaward of the most landward historical position of the mean high tide line was an invalid underground regulation because it was not promulgated as a regulation pursuant to the Administrative Procedures Act (APA). The Court held that the policy was an invalid underground regulation because it was not exempt from promulgation under the APA. Contrary to the Commission’s contention, its policy was not exempt from promulgation under the APA because it did not fit within the “only legally tenable interpretation of a provision of law” exemption. Rather, the Court held that the policy was both over-inclusive as to lands not currently belonging to the state or which may never become state land and under-inclusive with respect to lands that may become state land in the future.
Thomas and Nancy Bollay (the Bollays) owned a beach front parcel in Carpenteria, which is located in the unincorporated County of Santa Barbara (County). Their parcel extended landward from the mean high tide line to rocks protecting a railroad right-of-way on the landward side of the parcel. The Bollays wanted to build a single-family residence on the parcel so in 1999; they submitted an application to the County for a permit. The County in turn contacted the Commission regarding whether the proposed project would encroach on state tidelands. The Commission responded that the proposed project could encroach on the state tidelands and thus, objected to the project.
In 2003, the Bollays submitted a survey to the Commission. The survey identified the location of the mean high tide line. (The mean high tide line is also referred to as the ordinary high-water mark and is determined by the averaged height of the tides over approximately 19 years.) The Commission rejected the survey on the grounds the mean high tide had changed over the years, and cited to a survey conducted in 1956 and another done in 1964 as evidence that the entire beach seaward of the railroad right-of-way was seaward of the mean high tide line. In 2004, the County commenced an investigation into whether it should condemn the Bollays’ parcel (among seven others along the beach) for public purposes. To do this, the mean high tide line on the beach would have to be established. However, the Commission did not determine the existing mean high tide line. Instead, the Commission issued a report which referred only to the 1964 survey, and which concluded that “it seems unlikely that any of the parcels could be developed in a manner that complied with Coastal Act policies or that conformed to the State Lands Commission’s policy that new development be sited landward of the most landward location of the mean high tide line.” The italicized language is what the Bollays challenged as an underground regulation.
The Bollays first challenged the policy before the Office of Administrative Law (OAL). The OAL determined the policy was a regulation, but did not agree that the regulation was illegal because it determined the policy was not subject to the APA rules requiring promulgation since the OAL concluded the policy was the only legally tenable interpretation of the law governing the Commission’s activities. The Bollays appealed. The trial court considered only the latter issue – whether the exemption to the promulgation rules applied – and upheld the OAL’s determination that the exemption applied. The Bollays appealed again.
On appeal, the Court agreed with the Commission that the policy constituted a regulation, but reversed both the Commission’s determination and the trial court’s ruling as to whether an exemption to the promulgation rules applies. The Court concluded that the Lands Commission’s policy was not the only legally tenable interpretation of law. The Court reasoned that there was no argument or evidence presented that the mean high tide line along the entire California coast would continue to change within its full historical range. As a result, the policy was both over-inclusive (protecting land that was not and may never be state property) and under-inclusive (failed to protect land that could foreseeably become state tidelands). Thus, the Bollays were entitled to the relief sought – a judicial declaration that the Commission’s policy was invalid because it was not promulgated in accordance with the APA – and costs.
Katherine J. Hart is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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, or 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.