California Enacts Permanent Coastal Protection Act

The California legislature has finally ended four years of suspense by enacting the Coastal Act of 1976,¹ which permanently establishes a permit program governing land use along the 1100-mile California shoreline. The Act is the ultimate product of a process which began with the passage of an Initiative² in 1972 that set up the California Coastal Zone Conservation Commission and a number of regional commissions and ordered them to develop a comprehensive coastal management plan for submission to the legislature before the end of 1976, when the Commissions were to go out of existence. Although the Act as passed contains a number of modifications from the original Coastal Plan³ submitted in December 1975, it still represents the strongest and most comprehensive coastal zone protection program⁴ yet adopted by any state, and thus may serve as both an impetus and a paradigm for future efforts by coastal states in the area of land use planning and controls.

The Act's central provision requires that anyone wishing to undertake development projects within a zone from 1000 yards inland along the coast out to the limits of state territorial waters must obtain a coastal development permit from either a regional commission⁵ or from the now-permanent state commission. Amendments on the Senate floor, however, carved a number of specific exceptions out of this general rule. No permits are necessary for improvements to single-family residences, for maintenance dredging, or for categories of development later designated by a two-thirds vote of the state commission as having no potential for significant adverse impact on either coastal resources or public access to the coast. Developments located in "urban land areas" are also exempted from the permit requirements. "Urban land areas" are defined as residential areas zoned and developed to a density of four or more dwelling units per acre before January 1, 1977, and areas zoned and developed for commercial or industrial use prior to the same date. In addition, a grandfather clause exempts projects in which the developer obtained a vested right prior to January 1, 1977.

The general principle governing the issuance of development permits is that new development is to be located within or near already developed areas, or at least in areas with adequate existing public services. In addition, land can be subdivided only where 50 percent of the usable parcels in the area have been developed and the newly-created parcels would be no smaller than the average size of the surrounding lots. Development is also not to interfere with public beach access acquired through either use or legislative authorization. A prohibition against interference with access acquired through custom was dropped in another last-minute amendment. A particularly noteworthy factor which must be considered by the permitting authority is compatibility between the design of the project and the scenic and visual qualities of the surrounding coastal area.

[6 ELR 10225]

The Act treats siting of coastal-dependent industrial or oil and energy-related facilities and construction of port facilities differently from other development. For example, while construction of industrial facilities should be directed toward existing industrial sites, it may nonetheless be permitted outside these sites if (1) locations other than the site chosen are infeasible or more environmentally damaging; (2) to prohibit it would adversely affect the public welfare; and (3) harmful environmental effects are mitigated to the maximum extent feasible.

Another important aspect of the Act is its explicit recognition of the need for providing added protection for environmentally sensitive coastal areas. The state commission is authorized to designate, in consultation with the affected local governments and appropriate regional commissions, "sensitive coastal resource areas" of regional or statewide significance, where zoning regulations alone may not adequately protect coastal resources or access. In such instances, the local coastal management program must include additional implementing actions sufficient to protect these values, actions which will be subject to review and approval by the regional and state commissions. Another Senate-floor amendment provides that such designations must be submitted to the legislature, and will lapse if not approved by concurrent resolution within two years.

Wetlands receive special attention under the Act. The diking, filling or dredging of coastal waters, wetlands and estuaries is to be permitted only where there is no feasible less environmentally-harmful alternative, and where feasible mitigation measures are taken to minimize adverse environmental effects. The mitigation measures required include either acquisition or restoration of equivalent wetland areas or payment to the appropriate government agency of an in-lieu fee sufficient to acquire such an area.

Persons violating the Act are subject to civil fines of up to $10,000, and penalties from $50 to $5,000 for each day of intentional and knowing violation in the form of unpermitted development. The state and regional commissions may maintain actions to recover these penalties, and may seek punitive damages for intentional violations. In addition, "any person," including the commissions, may sue to enforce non-discretionary duties imposed on the state or regional commissions or on local governments by the Act, or for declaratory or injunctive relief to restrain any violation of the statute. The plaintiff in the latter type of action is entitled to a preliminary injunction upon a prima facie showing of such a violation, and is not required to post bond.

The Act's enforcement scheme thus gives the state and regional commissions unequivocal power to seek fines and injunctive relief against violators. But the Act goes further. It attempts to insure that this power will be diligently exercised by according the public a broad watchdog role in the enforcement process through a sweeping "citizens suit" provision. And it allows citizens to sue in their own behalf to challenge the legality of proposed developments.

First reactions indicate that the Act, as hammered out in a hectic eleventh hour round of amendments negotiated by Governor Jerry Brown, is generally acceptable to the business community⁶ while it is still considered a victory by environmental groups. Although a number of points in the original Coastal Plan were compromised in order to get the Act passed, environmentalists are correct in viewing the measure as a strong and comprehensive one. And although the Act promises important protection for California's coast, it may have its most profund effect in serving as a model for future land use planning and control efforts by California and other states in inland as well as coastal areas.

1. SB 1277 (enacted Aug. 23, 1976), as amended by AB 2948 (enacted Aug. 25, 1976).

2. Proposition 20 on the ballot, codified at Cal. Pub. Res. Code §§ 27001-650 (West. Supp. 1975).

3. California Coastal Zone Conservation Commission, California Coastal Plan (Dec. 1975). For a description of the Plan's provisions, see Comment, California Issues Strong Coastal Plan, 6 ELR 10083 (Apr. 1976).

4. The program established by the Act will also serve as California's coastal zone management program under the federal Coastal Zone Management Act, 16 U.S.C. §§ 1451-1464, ELR 41701.

5. The regional commissions remain a temporary creation under the Act and will disappear June 30, 1979, by which time their permitting functions will have been transferred to local government agencies operating under local coastal management programs certified by the relevant regional commission or by the state commission on appeal as conforming to the standards and requirements articulated in the Act.

6. Business Week, Sept. 13, 1976, at 39.