Appellate Court Says Coastal Commission Has ESHA Power

• Determination Has Major Significance for Unincorporated Malibu and Santa Monica Mountains

BY BILL KOENEKER

A recent state appellate court ruling holds that the California Coastal Commission has the power to unilaterally designate new Environmentally Sensitive Habitat Areas prior to the certification of a Local Coastal Program.
The court found that neither an issuing agency, nor the CCC, can deviate from a certified LCP and designate additional ESHAs, but it held that if an LCP has not been certified, then “allowing the issuing agency to protect natural resources for the benefit of the public by designating new areas when they meet the definition of environmentally sensitive habitat area more closely comports with the declared and salutary purposes of the Coastal Act.”
The court ruling came about after Milos Douda and Trisha Douda had applied for, and the California Coastal Commission had denied, a permit for a 5804-square-foot home located in the Santa Monica Mountains near King Gillette Ranch.
The commission had denied the permit on several grounds, citing view impacts and that the coastal sage scrub and chaparral on the Douda property met the definition of ESHA under the Coastal Act.
The Doudas sued, with the trial court upholding the commission’s action, and the Doudas then appealed. They contended the commission did not have the authority to designate an ESHA, or to impose visual resource regulations on the property.
So the court was then asked if the coastal agency has the power to unilaterally designate ESHA and thereby prevent development.
The court noted that each local government must provide an LCP certified by the CCC and that Los Angeles County did not have a certified LCP.
The three-judge panel ruled that in this case there was no certified coastal program, so the CCC was left with the task and the power to determine whether the development was in conformance with the Coastal Act, including provisions of the act protecting sensitive habitat zone.
“Thus in reviewing an application for a coastal development permit prior to the certification of a local coastal program, an issuing agency should deny a permit based on a previously undesignated environmentally sensitive habitat are only when necessary to achieve the legislature’s basic goals, Only by exercising such restraint can an issuing agency avoid becoming a de facto manager for a local government’s land use planning and development,” the court wrote.
Additionally, the Doudas argued that the state legislature limited the commission’s power to designate ESHAs through a statute that gave the commission only until September 1977 to designate sensitive coastal resource areas.
The Doudas claimed that ESHAs fall within the definition of sensitive coastal resource area and are subject to the same restrictions on implementation. The court determined “otherwise.”
The reasons, according to the justices, are that another section of the law states that the commission has an ongoing duty to protect ESHAs without any limitation as to time. “In sum, the legislature provided the commission only a brief period in which to designate sensitive coastal resource areas. However that limitation does not prevent the commission from implementing its obligation to protect ESHAs,” the court ruled.
The Doudas had also argued that the legislature did not intend to give so much power to an appointed body that is not answerable to the electorate. The ruling responded, “But this view is not supported by the statutory scheme. Also, we do not share the Doudas’ concerns over the grant of power. The power is not broad (because it is restricted to rare and especially valuable resources) and is subject to review through the courts via writ of administrative mandate. Also, the power is given to the issuing agency, not to the commission in particular.”
The Doudas also contended that Coastal Act provisions establish that local governments essentially have exclusive say over the content of land use plans and local coastal programs. The court again said it disagreed, “The more reasonable interpretation is that the commission when it is the issuing agency is obligated to reject developments that contravene the polices of the Coastal Act. However, it has no power to force local government to select one use that conforms to the policies of the Coastal Act over other uses that also conform.”
On the Douda contention that the coastal agency lacked the authority to regulate scenic and visual resources four and half miles inland, the court again said it could not concur. The lower court had ruled that the Doudas waived their objections to the commission’s power to regulate scenic and visual sources by failing to argue the issue at the administrative hearing. But the appeal judges said whether the Coastal Act permitted the commission to regulate is a question of law for the courts and was beyond the commission’s jurisdiction to decide.
The Doudas argued there is a difference between coastal areas and coastal zones, and that coastal “area” refers to an area on or along the ocean. However, the Coastal Act does not define the phrase coastal area.
“Our directive… is to construe the Coastal Act broadly to achieve its purposes and objectives. Construing coastal areas as a smaller area than the coastal zone is problematic. If a coastal area is smaller than the defined coastal zone, the issuing agency and local governments will have no guidance to where the coastal area ends. The Doudas’ interpretation might require constant litigation. Ultimately, the courts would be required to draw coastal areas.”
In addition, the three-judge panel said that a section of the Coastal Act identifies the Santa Monica Mountains as a highly scenic area, and it requires that new development in that area be subordinate to the character of its setting. “This bolsters the interpretation that the commission’s power to regulate scenic and visual resources (especially as to the Santa Monica Mountains) extends inland as far as the boundary of the coastal zone,” the ruling stated.