November 19, 2009

Court tips hat to PLF argument advocating limits on Coastal Commission power

By Court tips hat to PLF argument advocating limits on Coastal Commission power

Author: Paul J. Beard II

On Monday, the California Court of Appeal (2nd District) rendered an unpublished decision concerning the scope of the California Coastal Commission's power.  Unfortunately, it is a decision unfavorable to coastal landowners.

Under California's Coastal Act, the Coastal Commission has power only over "development."  The Act enumerates various activities that constitute "development," including such things as "the placement or erection of any solid material or structure, discharge or disposal of any gaseous, liquid, solid, or thermal waste," and "change in the density or intensity of use of land," and "change in the intensity of use of water, or of access thereto."  Pub. Res. Code s. 30106.

In Electric Pointe, LLC v. California Coastal Commission, owners of property in Venice and the City of Los Angeles agreed that the City would vacate a parking easement on the property, transferring the parking area from public to private hands.  The Coastal Commission characterized the easement vacation as a "development" and demanded that a coastal development permit be sought.  When a permit was sought, it was denied. 

The property owners ultimately sued the Commission, alleging that it had no jurisdiction to demand a permit, because the mere vacationing of an easement — in essence, a paper transaction transferring an interest in land from one party to another — is not a "development."  The Commission disagreed, arguing that vacation of the easement changed the intensity of use of land and access to the beach, because the public no longer would be allowed to park on the property.  The trial court ruled in the Commission's favor.

On appeal, PLF submitted a friend-of-the-court brief, arguing that the term "development" must be construed in light of the purpose of the Coastal Act and in a way that avoids absurd results:  any jurisdiction-conferring "development" must be one that produces long-lasting, physical alterations to land or water.  Otherwise, the Commission would have free reign to regulate and demand a permit for any human activity in the coastal zone — from lying on the beach under an umbrella, to driving, to breathing.

Siding with the Commission's literalist construction of "development, " the court of appeal upheld the Commission's jurisdiction over the easement vacation.  But both the majority and concurring opinions analyzed PLF's proposed construction of the term.  Although it cited the rule that construction of a statute should avoid absurd results, and it seemingly recognized the absurd results that its construction would produce, the court punted to the Legislature, saying it was the Legislature's job — not the court's — to fix that problem.

While the court's decision is disappointing, its treatment of PLF's proposed construction of the term "development" — which PLF is advancing in other cases pending before the courts — gives coastal landowners some hope.  In his concurring opinion, Justice Mosk said this:

"The argument of Amicus Curiae Pacific Legal Foundation is appealing . . . .  The Commission takes the position that some of the hypothetical cases that may stem from this court's definition of 'development' can be decided when and if they arise, and, under such a circumstance, the Commission can determine that a permit will be granted or whether the Commission has jurisdiction.  Such a position is disquieting for those involved with property who desire consistency.  But how the statutory provisions operate generally is a matter for the Legislature . . . .  I reluctantly concur in the affirmance of the trial court judgment."

Hopefully, the courts in PLF's other pending "development" cases will translate Justice Mosk's reluctance into victories for the plaintiffs there.

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