The California Coastal Regulatory Experience

Richard C. Jacobs

Editors' Summary: In the interests of preserving the scenic and recreational values of its long coastline and guaranteeing the public access necessary for general exploitation of those values, California has developed a system for strictly regulating coastal development. The regulatory system, born in a public initiative in 1972, developed during a four-year planning period, and enacted in the 1976 Coastal Zone Conservation Act, has been a controversial experiment in state land use control to protect an invaluable public resource. Mr. Jacobs outlines the legal history of California coastal regulation and reviews the current legal status of the major features of the 1976 Coastal Act. He notes that the Act has withstood most of the legal challenges to its key provisions, but that uncertainty in the law of takings continues to make application of the Act a delicate matter. He concludes by noting that the current administration in California is reconsidering the wisdom of such intensive state regulation of land use, but that the development and implementation of the Coastal Act may have permanently heightened public concern over the risk of loss of coastal recreational and scenic values.

Mr. Jacobs is Special Counsel to the Attorney General of California. This article is based on a speech he presented at the February 1983 conference on environmental law in San Francisco, cosponsored by the Environmental Law Institute, ALI-ABA, and the Smithsonian Institution.

[13 ELR 10153]

California has more than a decade's experience with coastal regulation. In 1966 CRY CALIFORNIA, a noted California resource journal, declared:

Never before has there been such an onslaught against the charm of the California coast, one of the State's greatest natural assets. There is, of course, no concerted plot to despoil the beaches.Large and small corporations are involved; so are agencies of the state and federal governments. And local government, as always, is offering up the natural resources under its jurisdiction to be ravished …. What agency of government has the obligation to protect the coast from piecemeal uglification?¹

The California experience grew out of the legislature's failure to answer that question. In 1970 and 1971, three major bills were introduced in the California legislature, each designed to provide for regulation of growth along the California coastline. Each met defeat after extensive lobbying by the interests that would be regulated.

The 1972 Initiative

As a result of the legislature's failure to act, a coalition of environmental groups decided that the only possibility of statewide coastal regulation lay in the submission of an initiative to the California voters. An initiative was drafted, the necessary signatures obtained, and the measure ultimately passed in November 1972.

Wisely, the drafters of the initiative did not attempt to provide a permanent regulatory agency, or to provide permanent and comprehensive standards for coastal regulation. In the last general election, California voters defeated an initiative that would have provided for a comprehensive water conservation and groundwater regulation scheme: the opponents to the measure effectively argued that such a permanent and detailed measure ought to be amenable to legislative compromise and amendment. Instead, the 1972 Coastal Act² established only temporary agencies — the California Coastal Zone Conservation Commission and six regional commissions.

Planning and Regulation

The new agencies were charged with holding extensive public hearings, preparing a California coastal plan, making recommendations for permanent regulation, and submitting the plan and recommendations to the legislature. Along with that charge, the commissions were given the responsibility for regulating development along the coast during the planning period. Under the Act, any "development" required a permitfrom the commissions, and "development" was defined broadly to require commission scrutiny of virtually any construction or work that might interfere with achieving the goals to be proposed in the plan.

Before any development could proceed, either the appropriate regional commission or, on an administrative appeal, the state commission, was required to find two things: that the development would not have any substantial environmental or ecological effects and would be consistent with the policies and objectives of the Act. Under this scheme, a developer could not propose some form of offset for its project. A project with a substantial adverse environmental effect simply could not proceed. The Act also provided that the burden of proof on all issues was on the applicant, and that any person who unsuccessfully opposed a project before a regional commission could take a no-fee administrative appeal to the state commission. If the state commission determined that the appeal raised a substantial issue, it then heard the matter de novo — not simply as an appellate body. In short, the interim regulatory structure was to protect the status quo, so that irreplaceable coastal resources were not lost to development while the commission prepared and the legislature considered the California coastal plan.

[13 ELR 10154]

Litigation Under the 1972 Act

Not unsurprisingly, the Act and the actions of the commission generated substantial litigation. Since 1972, litigation involving the commissions has consistently required the services of aproximantely ten attorneys from the California Attorney General's Office. Those working on coastal litigation became a group of environmental defense lawyers.

The cases under the 1972 Act fall into three groups. The first involved projects which were either under construction, had received some local governmental permits, or were somewhere else in the planning process prior to construction. In many of these cases developers claimed a vested constitutional right to continue without complying with the new statute. Unlike the courts of many otherr states, the California Supreme Court adopted the rule that for projects requiring a local government building permit, no vested right against the Coastal Act could be obtained unless that permit had been issued and the property owner had both substantially relied upon it financially and had performed substantial construction on the property in reliance on the permit.³ Among state land use decisions around the country, this rule is one of the most favorable to environmental regulation. California appellate courts have now applied the rule to virtually all forms of land use development.⁴

The second group of cases involved the procedural aspects of the Act and interpretation of its substantive provisions. The courts in these cases uniformly sustained the commissions' broad readings of their mandates and powers. This result is attributable in large part to two early cases. In the first, State v. Superior Court,⁵ the California Supreme Court broadly interpreted the commissions' powers, and indicated that Court's view of the importance of the Act. In the second, CEEED v. California Coastal Zone Conservation Commission,⁶ the California Court of Appeal upheld the Act in its entirety against facial constitutional challenges; in fact, the decision analogized regulation of coastal development to common law regulation of nuisances.

The final group of cases involved taking claims. These cases were resolved by the California Supreme Court in State v. Superior Court,⁷ which also held that complete preclusion of use of property for a temporary period, pending adoption of a comprehensive regulatory plan, did not constitute a taking of property.

The commissions' success rate in the appellate courts during the planning period of the 1972 Act was outstanding. Of the 20 reported appellate cases between 1972 and the end of 1976 involving one of the commissions as a party, the commissions prevailed in 19.⁸ The one loss was minor, involving the technical question of the effective date of the Act for vested rights purposes.⁹ Examining the cases decided under the Act and its successor legislation, in 1979 one commentator noted that "[s]ince its birth in late 1972, the Coastal Commission has participated in 32 reported appellate cases and has won 87.5% of them … [T]he Commission's success rate as an appellant is a mind-numbing 88.9%."¹⁰

The 1976 Coastal Act

During the latter part of 1975 and into 1976, the legislature considered the California coastal plan produced by the commissions. After several false starts, and after a permanent bill apparently had been killed completely, the legislature finally enacted the 1976 Coastal Act,¹¹ the Act under which California now regulates coastline development.

The Regulatory Program

The 1976 Act establishes a permanent scheme of regulation. It requires permits for proposed developments and states a series of policies which govern permit issuance. It also requires each local coastal government to prepare what is known as a local coastal program, and to submit it to the state Coastal Commission for review and certification. In this respect the Act embodies a difficult institutional compromise. On the one hand, it reflects the view that local governments cannot by themselves adequately protect the public's interest in the coast and that intervention of the state is necessary to provide that protection. At the same time, however, the Act delegates permit authority from the state commission to the local governments after certification of a local coastal program by the commission, limiting the state commission's role to oversight and appellate review. The Act thus provides for permanent regulatory plans prepared by local governments, certified by the Coastal Commission, and then administered primarily by the local governments.

Key Coastal Protection Policies

Much of the substance of the Act is found in the series of policies it enunciates that govern permit issuance and the [13 ELR 10155] preparation and certification of local coastal programs. A review of several of these policies illustrates the scope and substance of California's current coastal regulations.

* Public Access to the Coast. Although the California Constitution guarantees public access to the state-owned tidelands, less than 42 percent of California's over 1,000 miles of coastline was in nonmilitary public ownership in 1972. In response, the Act provides that one of the basic goals of the state is to maximize public access to and along the coast and to maximize public recreational opportunities in the coastal zone.¹² In carrying out this basic goal, the Act specifies that "maximum access" and "recreational opportunities" shall be provided, and that, with limited exceptions, public access from the nearest public roadway to the shoreline and along the coast must be provided in new development projects.¹³ The tidelands of the ocean are owned by the public, so these provisions in effect are designed to provide public access to a publicly owned resources. Increasing limitations on public access to the ocean seem to be the most important reason why the people originally enacted a coastal regulatory initiative; therefore, the state commission views the access provisions as the heart of the Act.

One way the commission implements the access policies is to require permit applicants to offer to dedicate easements to allow the public to reach the shoreline or to use a portion of the beach itself. The commission imposes this requirement on virtually all beachfront developments, including single family homes. Needless to say, under these circumstances the Act's access policies and the commission's implementation of them have resulted in substantial public criticism and litigation. The commission's position has been upheld, however, in the few cases where it has been addressed squarely. For example, in a recent case involving the Sea Ranch development — a private development which stretches along 10 miles of the coast in Sonoma County north of San Francisco — the commission blocked development of lots owned by multiple individual landowners until the Sea Ranch Homeowner's Association agreed to provide access to the public. After 10 years of political battles and judicial actions, a three-judge federal district court upheld the commission's actions.¹⁴ In fact, after reviewing the policies of the Act, the court declared that the commission would have violated the Act had it not imposed the access conditions at issue. At the court indicated: "Absent imposition of these or similar conditions ten miles of the California coastline would become a private beach with many portions of its cut off from the public's view."¹⁵

In order to implement these policies, the commission adopted a set of guidelines designed to advise potential applicants and the public as to the commission's view of the requirements of the Act. The California Supreme Court recently refused to judge the facial validity of these guidelines absent a specific factual application, so we do not yet have a definitive state supreme court decision on this policy.¹⁶ The California courts have long been receptive, however, to the constitutionality of dedication requirements imposed by local governments¹⁷ so these access requirements are likely to be upheld.

* Controlling Development. The Act also provides that one of the basic goals of the state is to "assure priority for coastal-dependent development over otherr development on the coasts."¹⁸ Consistent with this goal, the Act provides that oceanfront land suitable for recreational use shall be protected for that use, unless foreseeable recreational demand is already adequately provided for in the area. In addition, the Act specifies that the use of private lands suitable for commercial recreational facilities designed to enhance public recreational opportunities shall have priority over "private residential, general industrial or general commercial development."¹⁹ Whatever may be the need for additional housing within the state, this is one instance in which the legislature has clearly determined that the provision of additional housing opportunities is subordinate to otherr factors, and the commission has often denied permits for residential development on ocean front lots where there was a demonstrated need for additional recreational facilities, including hotels and motels.

A recent New Jersey case also bears on this policy. In Lusardi v. Curtis Point Property Owners Association,²⁰ the New Jersey Supreme Court considered the validity of a local zoning ordinance with prohibited recreational use of privately owned unimproved oceanfront property. The local township involved in the case had zoned virtually all of the private lots bordering on the Atlantic Ocean for single family residential use, and precluded the use of the lots for public recreational purposes. The court held that the ordinance was invalid, in that it conflicted with the state's statutory priorities for the public's use of oceanfront resources. This is an important decision, since it, like the California Act, forces local governments to plan for the public's recreational use of limited oceanfront resources.

* Subdivision of Land. A third important policy of the Act deals with subdivision of land. One section of the [13 ELR 10156] Act²¹ limits subdivision of land "outside existing developed areas" to instances where 50 percent of the usable parcels in the area have already been developed. If less than 50 percent of the lots have already been developed, no additional lots may be created. In addition, subdivision is permissible only where public services are available and where additional development would not have significant adverse effects, either individually or cumulatively, on coastal resources. The Act also specifies that "the maximum amount of prime agricultural land shall be maintained in agricultural production."²²

These provisions attempt to concentrate new development in already developed areas, and to preserve coastal agricultural resources. A recent report indicates that the San Francisco Bay Area alone each year loses 23,000 acres of farmland, an area about two-thirds the size of San Francisco, to new subdivisions and otherr urban uses.²³ Along the coast, however, less than 1,000 acres of farmland have been converted in the last 10 years — so these statutory provisions have been effective. The Coastal Commission has estimated that California's 90,000 acres of prime agricultural coastal land generates almost $400 million of income per year. This land is thus not only an open space visual resource for California's urban population, but a significant economic benefit now protected under the Act.

* Aesthetics. Anotherr important section of the Act provides that the scenic and visual qualities of coastal areas shall be considered and protected as resources of public importance.²⁴ Permitted development must be sited and designed to protect views to and along the ocean, and to be visually compatible with the character of surrounding areas. In a case decided by the California Supreme Court in 1980, the state joined many otherr states in the view that aesthetics alone is a proper basis for an exercise of the police power.²⁵ Although the United States Supreme Court reversed on otherr grounds,²⁶ its opinion also endorses that principle.²⁷

Litigation Under the 1976 Act

The litigation that has arisen under the 1976 Act cannot be categorized as easily as that under the 1972 Act. Several of the most publicized cases have involved the relationship between the Act and the federal Coastal Zone Management Act, and California's ability to exercise some regulatory control over offshore drilling on the outer continental shelf.²⁸ Many cases have involved particular procedural anomolies of the Act;²⁹ several again have involved claims of vested rights.³⁰ The commission's success rate in court has remained high — to date winning approximately 85 percent of its cases on appeal.

Two recurring issues are claims that the commission's regulation has amounted to a taking of property and violates § 1983 of the federal Civil Rights Act.³¹ These claims now appear in virtually every case involving a permit denial or stringent regulation under a local coastal program, and in the litigation involving dedications for public access to the ocean and along the coast. Many of these claims may be fueled in part by the fact that a prevailing plaintiff under the Civil Rights Act normally is entitled to attorneys fees.³²

The taking and civil rights claims are complicated by the lack of clarity in this area of the law. The courts have described the questions as "ad hoc, factual inquiries"³³ and have conceded an inability to develop any "set formula to determine where regulation ends and taking begins."³⁴ One commentator has described the attempt to distinguish "taking" from "regulation" as "one that may be the lawyer's equivalent of the physicist's hunt for the quark."³⁵

The commission to date has prevailed against all taking and civil rights claims. Under the 1972 Act, the courts concluded that even denial of all use could not constitute a taking, since the denial was only temporary, while the permanent coastal plan was being developed and considered.³⁶ The cases under the 1976 Act have relied on the same rationale, since a denial of use during the period after enactment of the Act and preceding adoption of a permanent local coastal program is likewise temporary.³⁷

Two recent United States Supreme Court cases, however, raise substantial questions concerning taking and civil rights claims once the permanent regulation of a local coastal program becomes effective. In Kaiser Aetna v. United States,³⁸ the Court held that a Corps of Engineers requirement that a property owner open a private marina to public access would be a taking, and nullified the Corps' ruling. In Loretto v. Teleprompter Manhattan CATV,³⁹ the Court held that the requirement that an apartment owner allow attachment of a cable television reception mechanism to the top of the apartment building was a taking of property. In both cases, the Court emphasized the physical nature of the intrusion at issue, and the fact that the right to exclude is an important aspect of [13 ELR 10157] private property rights. Both cases involved public regulation which imposed a burden on a private property owner after development was completed, however, and thus may involve substantially different constitutional considerations than a case where a landowner seeks discretionary approval to begin development. But in any event, the broad language of the cases will be of concern to public agencies in any regulatory attempt to provide access to the shoreline through the dedication process.

Finally, the appropriate remedy in the event that any such taking or civil rights claims are sustained is not yet clear. The California Supreme Court holds that invalidation of an offending regulation is sufficient to remedy the constitutional wrong in most cases.⁴⁰ The United States Supreme Court appears to be on the verge of holding that monetary compensation is constitutionally compelled.⁴¹ Thus, the uncertainty in the case law and the possibility of financial exposure create substantial concerns in the implementation of strict or innovative planning and regulatory measures.

The Coastal Conservancy

Perhaps partially in recognition of the potential constitutional limits on regulatory control of coastal property, and perhapspartially because of the view the some forms of regulatory control necessary for resource protection are beyond political acceptability, the legislature created, in addition to the regulatory Coastal Commission, the Coastal Conservancy. The Coastal Conservancy is an independent state agency without regulatory power, but which may purchase land and work with willing landowners to fashion acceptable methods of resource protection. These methods can include restoration projects, purchase of development rights, lot consolidation, and purchase-and-lease-back arrangements to protect agricultural uses.⁴² The funding for the Coastal Conservancy has never been large; it must choose its projects carefully to maximize its benefits and maintain its credibility. The Coastal Conservancy has also accepted offers of dedication required in commission permits, opened the areas to public use, and funded access projects proposed by local governments.

Conclusion

The political process which has led to California's coastal protection scheme is ongoing. More than 100 bills to change the Coastal Act were introduced in the last two legislative sessions.The current governor campaigned on a platform to abolish the Coastal Commission to stop its meddling with private property rights, and proposed a budget drastically cutting its funding and transferring some of its functions to his own office. Those who thought that California's coast was permanently protected in 1972 or in 1976 are wrong.

The prospects for a retrenchment in coastal regulation notwithstanding, the development of California's coastal program and the operation of the commission have resulted in the widely held perception that the coast is a public resource that can and should be regulated to achieve public goals. We will never again see the public attitude or the lack of public interest which allowed San Francisco Bay to be filled and diked, shrinking in size from 1,000 square miles to less than 480. That change in the public mind may be the most permanent result of the commission experience.

1. 2 CRY CALIFORNIA 3 (Winter 1966-1967).

2. CAL. PUB. RES. CODE § 27000 et seq. (expired 1976). By its own terms, the Act expired on December 31, 1976. CAL. PUB. RES. CODE § 27650 (expired 1976).

3. Avco Community Developers v. South Coast Regional Comm'n, 17 Cal. 3d 785, 132 (Cal. Rptr. 386 (1976), appeal dismissed and cert. denied, 429 U.S. 1083.

4. See, e.g., South Central Coast Regional Comm'n v. Pratt Construction Co., 128 Cal. App. 3d 830, 180 Cal. Rptr. 555 (Cal. Ct. App. 1982); Oceanic California, Inc. v. North Central Coast Regional Comm'n, 63 Cal. App. 3d 57, 133 Cal. Rptr. 664 (Cal. Ct. App. 1976), appeal dismissed and cert. denied, 431 U.S. 951; Sierra Club v. California Coastal Zone Conservation Comm'n, 58 Cal. App. 3d 149, 129 Cal. Rptr. 743 (Cal. Ct. App. 1976); Aries Development Co. v. California Coastal Zone Conservation Comm'n, 48 Cal. App. 3d 534, 122 Cal. Rptr. 315 (Cal. Ct. App. 1975). See also, Urban Renewal Agency v. California Coastal Zone Conservation Comm'n, 15 Cal. 3d 577, 125 Cal. Rptr. 485 (1975).

5. 12 Cal. 3d 237, 115 Cal. Rptr. 497 (1974).

6. 43 Cal. App. 3d 306, 118 Cal. Rptr. 315 (Cal. Ct. App. 1974).

7. 12 Cal. 3d 237, 115 Cal. Rptr. 497 (1974); see also, Briggs v. State, 90 Cal. App. 3d 190, 153 Cal. Rptr. 317 (Cal. Ct. App. 1979), appeal dismissed and cert. denied, 447 U.S. 917.

8. See, e.g., Marina Plaza v. California Coastal Zone Conservation Comm'n, 73 Cal. App. 3d 311, 140 Cal. Rptr. 725 (Cal. Ct. App. 1977); REA Enterprises v. California Coastal Zone Conservation Comm'n, 52 Cal. App. 3d 596, 125 Cal. Rptr. 201 (Cal. Ct. App. 1975); Transcentury Properties, Inc. v. State, 41 Cal. App. 3d 835, 116 Cal. Rptr. 487 (Cal. Ct. App. 1974).

9. San Diego Coast Regional Comm'n v. See the Sea, Ltd., 9 Cal. 3d 388, 109 Cal. Rptr. 377 (1973).

10. Berger, You Can't Win Them All — Or Can You?, 54 CAL. ST. B.J. 16 (1979).

11. CAL. PUB. RES. CODE § 30000 et seq.

12. CAL. PUB. RES. CODE § 30001.5(c).

13. CAL. PUB. RES. CODE §§ 30210, 30212.

14. Sea Ranch Ass'n v. California Coastal Comm'n, 527 F. Supp. 390, 12 ELR 20423 (N.D. Cal. 1981), judgment vacated, 454 U.S. 1070. The California legislature enacted CAL. PUB. RES. CODE § 30610.6 while the litigation was pending, as a legislative effort to provide some compensation to the affected property owners and to provide specified access for the public through Sea Ranch. The Supreme Court vacated the district court's judgment and remanded for the district court to determine whether the controversy was moot in light of § 30610.6. The district court later dismissed the action as moot. See Sea Ranch Ass'n v. California Coastal Comm'n, 552 F. Supp. 241 (N.D. Cal. 1982).

15. 527 F. Supp. at 393, 12 ELR at 20425.

16. Pacific Legal Foundation v. California Coastal Comm'n, 33 Cal. 3d 158, 188 Cal. Rptr. 104 (1982). The California Court of Appeal, the state's intermediate appellate court, has upheld a commission dedication requirement, Georgia Pacific Corp. v. California Coastal Comm'n, 132 Cal. App. 3d 678, 183 Cal. Rptr. 395 (Cal. Ct. App. 1982), but neither party sought California Supreme Court review of the decision.

17. See, e.g., Associated Home Builders v. City of Walnut Creek, 4 Cal. 3d 633, 94 Cal. Rptr. 630 (1971), appeal dismissed, 404 U.S. 878. Norsco Enterprises v. City of Fremont, 54 Cal. App. 3d 488, 126 Cal. Rptr. 659 (Cal. Ct. App. 1976). In Associated Home Builders, the court upheld a local government requirement that parkland be dedicated as a condition to subdivision of land.

18. CAL. PUB. RES. CODE § 30001.5(d).

19. CAL. PUB. RES. CODE § 30222.

20. 430 A.2d 881, 12 ELR 20073 (N.J. 1981).

21. CAL. PUB. RES. CODE § 30250.

22. CAL. PUB. RES. CODE § 30241.

23. PEOPLE FOR OPEN SPACE, ENDANGERED HARVEST (1980).

24. CAL. PUB. RES. CODE § 30251.

25. Metromedia, Inc. v. City of San Diego, 26 Cal. 3d 848, 164 Cal. Rptr. 510, 10 ELR 20862 (1980).

26. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 11 ELR 20600 (1981).

27. 453 U.S. at 507-08, 11 ELR at 20605.

28. See, e.g., California v. Watt, 520 F. Supp. 1359, 11 ELR 20870 (C.D. Cal. 1981), aff'd, 683 F.2d 1253, 12 ELR 21084 (9th Cir. 1982); American Petroleum Institute v. Knecht, 609 F.2d 1306, 10 ELR 20083 (9th Cir. 1979).

29. See, e.g., Union Oil Co. v. South Coast Regional Comm'n, 92 Cal. App. 3d 327, 154 Cal. Rptr. 550 (Cal. Ct. App. 1979); Old Santa Barbara Pier Co. v. State, 71 Cal. App. 3d 250, 139 Cal. Rptr. 332 (Cal. Ct. App. 1977).

30. See, e.g., Tosh v. California Coastal Comm'n, 99 Cal. App. 3d 388, 160 Cal. Rptr. 170 (Cal. Ct. App. 1979); Pardee Construction Co. v. California Coastal Comm'n, 95 Cal. App. 3d 471, 157 Cal. Rptr. 184 (Cal. Ct. App. 1979).

31. 42 U.S.C. § 1983.

32. 42 U.S.C. § 1988.

33. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 8 ELR 20528 (1978).

34. Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962).

35. C. HARR, LAND USE PLANNING 766 (3d ed. 1977).

36. State v. Superior Court, 12 Cal. 3d 237, 115 Cal. Rptr. 497 (1974); Briggs v. State, 90 Cal. App. 3d 190, 153 Cal. Rptr. 317 (Cal. Ct. App. 1979).

37. See, e.g., Sea Ranch Ass'n, 527 F. Supp. at 397, 12 ELR at 20426.

38. 444 U.S. 164, 10 ELR 20042 (1979).

39. 73 L. Ed. 2d 868 (1982).

40. Agins v. City of Tiburon, 24 Cal. 3d 266, 157 Cal. Rptr. 372, 9 ELR 20260 (1979), aff'd on otherr grounds, 447 U.S. 255, 10 ELR 20361 (1980).

41. San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 11 ELR 20345 (1981).

42. CAL. PUB. RES. CODE § 31000 et seq.