Appellate Court Says Coastal Commission Has
ESHA Power
• Determination Has Major Significance
for Unincorporated Malibu and Santa Monica Mountains
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.
