Beach & Bluff Conservancy v. City of Solana Beach

• Decision Date: 17 October 2018
• Docket Number: D072304
• Citation: 28 Cal.App.5th 244,239 Cal.Rptr.3d 86
• Court: California Court of Appeals Court of Appeals
• Parties: BEACH AND BLUFF CONSERVANCY, Plaintiff and Appellant, v. CITY OF SOLANA BEACH, Defendant and Appellant; California Coastal Commission et al. Interveners and Appellants.

28 Cal.App.5th 244

239 Cal.Rptr.3d 86

BEACH AND BLUFF CONSERVANCY, Plaintiff and Appellant,

v. CITY OF SOLANA BEACH, Defendant and Appellant;California Coastal Commission et al. Interveners and Appellants.

D072304

Court of Appeal, Fourth District, Division 1, California.

Filed October 17, 2018

Jon Corn Law Firm, Jonathan Corn, Del Mar; Pacific Legal Foundation, Meriem L. Hubbard, and Lawrence G. Salzman, Sacramento, for Plaintiff and Appellant.

NOSSAMAN, Steven H. Kaufmann, Los Angeles, Elizabeth Klebaner, Irvine; McDougal Love Boehmer Foley Lyon & Canlas, and Johanna N. Canlas, La Mesa, for Defendant and Appellant.

Xavier Becerra, Attorney General, John A. Saurenman and Daniel A. Olivas, Assistant Attorneys General, and Jamee Jordan Patterson, Deputy Attorney General, for Intervener and Appellant California Coastal Commission.

ENVIRONMENTAL LAW CLINIC; Mills Legal Clinic at Stanford Law School and Molly Melius for Intervener and Appellant Surfrider Foundation.

HALLER, Acting P. J.

INTRODUCTION

The California Coastal Act of 1976 ( Pub. Resources Code, 1 § 30000 et seq.) (the Coastal Act) requires local governments like defendant City of Solana Beach (the City) to develop a local coastal program (LCP). The LCP, consisting of a land use plan (LUP) and implementing ordinances, is designed to further the objectives of the Coastal Act. (§ 30001.5, subd. (c); Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 794, 149 Cal.Rptr.3d 383, 288 P.3d 717.) The Coastal Act provides that a local government must submit its LUP to the California Coastal Commission (the Commission) for certification that the LUP is consistent with the policies and requirements of the Coastal Act. (§§ 30512; 30512.2.) After the Commission certifies a local government's LUP, it delegates authority over coastal development permits to the local government. ( Pacific Palisades , at p. 794, 149 Cal.Rptr.3d 383, 288 P.3d 717, citing §§ 30519, subd. (a), 30600.5, subds. (a), (b), (c).)

In the present case, the City submitted an amended LUP (ALUP) to the Commission. The Commission approved the ALUP with suggested modifications and the City accepted those modifications. In April 2013, Beach and Bluff Conservancy (BBC) brought the present action for declaratory relief and traditional mandate under Code of Civil Procedure section 1085, challenging seven specific policies of the City's ALUP as facially inconsistent with the Coastal Act and/or facially unconstitutional.² In September 2016, BBC filed a motion for judgment on its petition for writ of mandate. The court granted BBC's motion and petition for writ of mandate as to two of the challenged policies and denied the motion and writ petition as to the other five challenged policies, and entered judgment accordingly.

BBC's appeal and the cross-appeals by the City, the Commission, and Surfrider Foundation (Surfrider) concern five of the seven policies at issue in the trial court. BBC contends the court erred in rejecting its claims that one of those policies is facially inconsistent with the Coastal Act, another is facially unconstitutional under the "unconstitutional conditions doctrine," and a third is both inconsistent with the Coastal Act and unconstitutional. In their cross-appeals, the City, the Commission, and Surfrider contend the court erred in granting BBC's motion for judgment and petition for writ of mandate as to two of the policies. The City and the Commission also raise a number of procedural challenges to the judgment.

As we shall explain, we conclude that BBC's exclusive remedy to challenge policies in the ALUP on the ground they are inconsistent with the Coastal Act was to file a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5 rather than an action for declaratory relief and traditional mandamus. And assuming, without deciding, that administrative mandamus is not the exclusive remedy for BBC's facial challenges to two policies on constitutional grounds, we conclude those challenges fail on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2011, the City submitted a draft LUP to the Commission. The Commission rejected the City's draft LUP in March 2012 and instead approved a different LUP that the Commission had substantially modified. In May 2012, BBC and property owner Joseph Steinberg challenged the Commission's decision by filing separate petitions for writ of administrative mandate under Code of Civil Procedure section 1094.5. In November 2013, the trial court sustained the Commission's demurrers to the petitions without leave to amend on the ground the actions were barred by the petitioners' failure to name the City as a necessary and indispensable party. BBC and Steinberg appealed the dismissal of those actions, but BBC voluntarily dismissed its appeal and this court dismissed Steinberg's appeal for failure to file an opening brief.

In September 2012, while the writ petitions against the Commission were pending, the Commission notified the City that because the Commission had certified its LUP with suggested modifications, before the LUP could become "effectively certified," the Commission would have to determine the City had taken "formal action ... to satisfy [the suggested modifications], such as incorporating the modifications." In February 2013, the city council accepted the Commission's suggested modifications to the City's LUP and, in May 2013, adopted additional amendments to the LUP. In January 2014, the Commission approved the City's amendments with additional proposed modifications. In June 2014, the City accepted those proposed modifications and incorporated them into the ALUP that BBC challenges in this action.

BBC filed the present action against the City in April 2013 but did not name the Commission in its complaint. In March 2014, BBC and the City stipulated to allow the Commission to intervene in the case on the side of the City, and the court entered an order allowing the Commission's intervention. The Commission filed a complaint-in-intervention, which essentially constituted its answer to BBC's first amended complaint. In October 2014, BBC filed its second amended complaint for declaratory relief and petition for writ of mandate under Code of Civil Procedure section 1085. In January 2016, the parties stipulated to, and the court ordered, Surfrider's intervention in the action. Surfrider filed a complaint in intervention that defended certain policies BBC challenged in its second amended complaint.

BBC's operative second amended complaint challenges the ALUP policies numbered 2.60, 2.60.5, 4.19, 4.22, and 4.53, in addition to two other policies not at issue in this appeal. BBC contends these policies are either facially unconstitutional or facially inconsistent with the Coastal Act, or both, as noted below.

Policy 2.60 restricts the right of blufftop property owners to repair existing private beach stairways and prohibits construction of new stairways. It allows existing stairways to be maintained in good condition but not expanded, limits the extent of permissible routine repair and maintenance of stairways, and requires private stairways to be phased out at the end of their economic life. BBC challenges policy 2.60 on the ground it violates section 30610 of the Coastal Act.³

Policy 2.60.5 requires conversion of a private beach stairway to a public accessway "where feasible and where public access can reasonably be provided" when the property owner applies for a coastal development permit (CDP) to replace the stairway or more than 50 percent of the stairway. However, the conversion is required only if any portion of the stairway uses public land or private land subject to a public access easement or deed restriction.⁴ BBC challenges policy 2.60.5 on the grounds it violates section 30610 and is unconstitutional.

Policy 4.19 provides that new shoreline or bluff protective devices that alter natural landforms (e.g., seawalls) "shall not be permitted to protect new development." As a condition for a permit for new blufftop development or redevelopment, the policy requires a property owner to record a deed restriction waiving any future right under section 30235 to construct new bluff retention devices.⁵ BBC contends the permit condition imposed by policy 4.19 is unconstitutional.

Policy 4.22 provides: "No bluff retention device shall be allowed for the sole purpose of protecting an accessory structure." BBC challenges policy 4.22 on the ground it violates section 30235, which, in BBC's words, "countenances no distinctions among the kinds of structures that may be protected from erosion."

Policy 4.53 provides that a permit for a bluff retention device will expire when an existing blufftop structure requiring protection is redeveloped, is no longer present, or no longer requires protection. The policy requires property owners to apply for a CDP to remove, modify, or retain a protective device before expiration of the permit and provides that the CDP will include a condition requiring reassessment of the impacts of the device in 20-year mitigation periods. BBC claims policy 4.53 violates section 30235 by placing unauthorized limitations on the right to protect blufftop structures with bluff retention devices.⁶

The trial court granted BBC's motion for judgment in part and denied the motion in part. The court ruled in BBC's favor as to policies 2.60 and 4.22, finding those policies were inconsistent with the Coastal Act.⁷ The court denied BBC's motion as to policies 2.60.5, 4.19, and 4.53. The court entered judgment in accordance with its order and issued a peremptory writ of mandate commanding the Commission to "[v]acate and set aside [its] actions to approve and certify LUP Policy 4.22 and LUP Policy 2.60, insofar as it includes a condition regarding repair and maintenance of private stairways."⁸

DISCUSSION

I. Section 30801 Provides BBC's Exclusive Remedy to Challenge a Commission-certified Policy on...