By William W. Abbott and Nathan Jones

According to leading lifestyle magazines, the status question is no longer: who is your architect, but: who is your land use attorney? And if you want to build your dream house along the coast, your attorney’s telephone number needs to be on your cell phone’s speed dial.

Coastal property has it all: view, exclusivity, tranquility and apparently a number of people who object to anything being built next door. The last calendar week of 2008 resulted in two published court decisions addressing single family lot development in the coastal zone. 

McAllister v. California Coastal Commission

In McAllister v. California Coastal Commission (2008) 169 Cal.App.4th 912, the Court of Appeal, Sixth Appellate District reviewed a California Coastal Commission (“Commission”) decision to permit the construction of a home in an environmentally sensitive habitat area (“ESHA”). The Coastal Act permits the Commission to grant approval in ESHAs if the failure to do so would deny the owner beneficial or productive use of the property without just compensation thereby resulting in a takings claim. The lawsuit pitted one neighbor against the other in Big Sur, where property views are as breathtaking as the price tag.  

The saga began in 2001 when the landowner submitted an application to build a house and merge two parcels (“Project”). The applicant finally obtained a county permit in 2004. That same year, a neighbor appealed to the Coastal Commission, which also approved the permit. In May of the following year, the Commission adopted findings to support its decision. The objecting neighbor amended an existing petition on file, challenging the Coastal Commission’s approval. The trial court rendered a judgment in favor of the neighbor in February 2007. This appeal followed.

The case is very detailed as to the facts of the specific policies of the Big Sur Land Use Plan (“Plan”), contained within the Monterey County Local Coastal Program (“LCP”). The neighbor claimed that the Commission erred in finding that the project conformed to the habitat-area policies because the Project was not a resource-dependent use. Specifically, Public Resources Code section 30240(a) provides: “Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas.”  While the county’s LCP and the city’s Plan both appropriately identify conforming uses in ESHAs in compliance with the Coastal Act, the Commissions approval of the permit did not.

An LCP must, at a minimum, conform to and not conflict with the resource management standards and policies of the Coastal Act. The appellate court reached the ultimate conclusion that where a certified LCP exists, the LCP must incorporate the Coastal Act’s explicit mandate restricting development to resource-dependent uses. While the LCP did conform to section 30240(a), the Commission’s disregard of the LCP development restrictions was in contravention of the Coastal Act. The Commission could not simultaneously establish the existence of an ESHA, and impose mitigation measures without contradicting the explicit use restrictions contained in the statute. (Sierra Club v. California Coastal Commission (1993) 12 Cal.App.4th 602.)

Of broader significance however, was the following question: What substantial findings were required of the Commission to support its decision to relax the coastal development standards to avoid a constitutional takings claim? While typically public agencies are on the defense when it comes to takings claims, here the Commission asserted the risk of a takings claim as the justification to relax development standards. While not addressing whether the property owner could actually establish a constitutional taking, the appellate court observed that if this was the basis for the Coastal Commission’s decision, then the record needed to support the justification. Under Public Resources Code section 3064, the Commission is under a general obligation to support all of its quasi-judicial decisions with written findings. The Commission here had a duty to make express finding that it was excusing strict compliance with statutory development restrictions to avoid a regulatory taking if that had been its reason for approving the project. This record was silent on that basis. Therefore, the appellate court could not support the Commission’s action, and remanded for a new hearing.

Alberstone v. California Coastal Commission 

The second Coastal Commission decision, Alberstone v.California Coastal Commission (2008) 169 Cal.App.4th 859, is narrower in scope. Again, the facts involve a struggle between adjacent land owners over a proposed merger and construction on two vacant lots. In this instance, when a neighbor appealed the City of Malibu’s grant of a coastal development permit, the Commission determined that the appeal failed to raise a substantial issue and declined to hear the case. The neighbor appealed.

Upon review, the Court of Appeal, Second Appellate District gave deference to the Commission’s determination that no substantial issue existed. As long as the Commission’s regulatory interpretations were reasonable and not “clearly erroneous,” the court would not overturn the Commission’s decision to decline the appeal. The court first addressed the neighbor’s claim that the project violated Public Resources Code section 30625 and Malibu’s Local Implementation Program (“LIP”), which prohibit the creation of new land divisions unless the new lot can be developed without a new shoreline protective structure. The Commission claimed that its regulations intentionally omitted lot mergers from the definition of “land divisions” for purposes of prohibiting new shoreline protective structures. The appellate court upheld the Commission’s interpretation.

Next, the court of appeal treated the neighbor’s claim that the new lot size after merger violated Malibu’s LIP. The Commission claimed that it intended to further a regulatory policy of permitting lot mergers to avoid excessive development. The Commission’s interpretation of regulations relating to lot mergers and lot sizes was also upheld as reasonable. The Commission’s ultimate refusal to address the substance of the neighbor’s appeal would not be overturned by the appellate court. The court upheld the Commission’s conclusion that the neighbor failed to raise a “substantial issue.”

The second major issue in the case involved the State Land Commission. Under Malibu’s LIP, projects must first be submitted for approval to the State Lands Commission if the project may have an impact on the boundary between public tidelands and private property or would impact public easements. The project was actually submitted to the Lands Commission, but it responded to the submittal by essentially claiming that it was too busy to perform the required analysis on the project. In the opinion of the Lands Commission, even if the State had a valid claim, a full investigation would result in little potential benefit to the public. The appellate court managed to maneuver its way around this straightforward requirement, declaring that the law did not require idle acts, and based upon the position of the Lands Commission, it would be an idle act to require the applicant to submit for a formal determination when the Lands Commission was clearly disinterested.

The use of the Coastal Act as a potent weapon for neighbors to halt or delay proposed projects that impede on their views, sensibilities, and property values is on the rise. Project proponents beware: not only should you consult with an architect, contractor, and surveyor, you need a direct line to your attorney to head off, or at least guide you through, the potential litigation.

Bill Abbott is a partner at Abbott & Kindermann, LLP, and Nathan Jones is a law clerk with the firm. 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, 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.