Big Creek Lumber v. County of Santa Cruz

• Decision Date: 17 February 2004
• Docket Number: No. H023778.,H023778.
• Citation: 10 Cal.Rptr.3d 356,115 Cal.App.4th 952
• Court: California Court of Appeals Court of Appeals
• Parties: BIG CREEK LUMBER CO. et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ et al., Defendants and Appellants.

10 Cal.Rptr.3d 356

115 Cal.App.4th 952

BIG CREEK LUMBER CO. et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ et al., Defendants and Appellants.

No. H023778.

Court of Appeal, Sixth District.

February 17, 2004.

As Modified on Denial of Rehearing March 10, 2004.

Review Granted June 9, 2004.

Craig E. Stewart, San Francisco, Jones Day, Dennis J. Kehoe, Aptos, Law Offices of Dennis J. Kehoe, for Plaintiff and Appellants Big Creek Lumber Co. et al.

Robert E. Bosso, Santa Cruz, Catherine A. Philipovitch, Bosso, Williams, Sachs, Atack & Gallagher, for Plaintiffs and Appellants Central Coast Forest Assn.

Robin L. Rivett, Sacramento, and M. Reed Hopper, Pacific Legal Foundation, for amicus curiae on behalf of Plaintiffs and Appellants.

Dana McRae, County of Santa Cruz, Fran M. Layton, San Francisco, Susannah T. French, Marlena G. Byrne, Shute, Mihaly & Weinberger LLP, for Defendants and Appellants County of Santa Cruz.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Asst. Atty. General, J. Matthew Rodriquez, Sr., Asst. Atty. General, Tara L. Mueller, Deputy Attorney General, for Defendants and Appellants, California Coastal Commission.

WUNDERLICH, J.

In this case, we are called upon to analyze the interplay among various state statutes that affect timber harvesting and to determine the impact of those statutes on local government's power to regulate land use.

The relevant statutes are the California Timberland Productivity Act of 1982 (Timberland Productivity Act or TPA),¹ the Z'berg-Nejedly Forest Practice Act of 1973 (Forest Practice Act or FPA),² the California Coastal Act of 1976 (Coastal Act),³ and the Planning and Zoning Law (State Zoning Law).⁴

The challenged local legislation includes several resolutions and ordinances adopted by Santa Cruz County in the late 1990s. Also at issue is a decision by the California Coastal Commission certifying one of those measures as an amendment to the county's local coastal program.

By separate legal actions that were later consolidated, parties representing forestry interests attacked the actions of the County and the Coastal Commission, asserting preemption and other grounds. The preemption issues were bifurcated and heard first. Following that hearing, the trial court concluded that the two state forestry statutes preempted most but not all of the challenged provisions of the ordinances. The court entered judgment accordingly. On appeal, each party continues to press its preemption and statutory construction arguments.

With respect to the justiciable issues presented here, we conclude that the challenged local measures are invalid in their entirety.⁵

BACKGROUND

I. The Parties

Plaintiffs: The first parties to appeal the trial court's decision were the petitioners below (collectively referred to in this opinion as "plaintiffs"). Plaintiffs are Big Creek Lumber Company and Homer T. McCrary (collectively, Big Creek), and the Central Coast Forest Association (CCFA), a nonprofit association representing forest landowners and forestry professionals in Santa Cruz County. Plaintiffs contend that state law preempts the challenged ordinances in their entirety.

Defendants: An appeal also was taken by the respondents below (collectively referred to in this opinion as "defendants"). Defendants are the County of Santa Cruz, its Board of Supervisors, and its Planning Department (collectively, the County), and the California Coastal Commission (the Commission or Coastal Commission). Both in response to plaintiffs' appeal and in their own appeal, defendants argue that state law does not preempt any of the ordinances in whole or in part. Defendant Coastal Commission also asserts the validity of its certification action.

Amici Curiae: Appearing as amici curiae are the Forest Landowners of California, the California Forestry Association, the California Farm Bureau Federation, and the California Cattlemen's Association. Amici support plaintiffs' view that the Forest Practice Act preempts the challenged local ordinances.

II. Actions by the County and the Coastal Commission

In February 1998, the County's Timber Technical Advisory Committee recommended that the County consider additional timber regulations. The Committee suggested two available avenues: (1) the advisory route — submitting proposed forest practice rules to the State Board of Forestry and Fire Protection (State Forestry Board); (2) the direct route — amending the County's zoning ordinance and General Plan/Local Coastal Program (LCP). The County explored both avenues.

First, the County proposed forest practice rules to the State Forestry Board, as permitted by Forest Practice Act.⁶ In early November 1998, the State Forestry Board accepted some but not all of the County's proposed rules. Among the rejected proposals were a riparian "no-cut" corridor and limits on helicopter logging operations.

In late November 1998, the County proceeded by the direct route, approving "in concept" certain General Plan/LCP amendments. Among other things, the conceptually approved amendments addressed riparian buffers and helicopter operations. At the same time, the County also adopted an interim ordinance, Ordinance 4529, which banned timber harvesting within designated riparian corridors.

Thereafter, the County revisited the advisory route. It made minor modifications to its previously rejected proposals and resubmitted them to the State Forestry Board in 1999, in the hope that the political winds had changed. That attempt was unavailing. In September 1999, the State Forestry Board denied the County's 1999 proposed rule package in its entirety.

Two months later, in November 1999, the County adopted two ordinances affecting timber harvesting. The first, Ordinance 4571, prohibits timber harvesting within specified riparian corridors. (It replaced Ordinance 4529, the interim riparian corridor ordinance enacted the previous year, which was due to expire at the end of 1999.) Ordinance 4571 requires a 50-foot buffer from a perennial stream and a 30-foot buffer from an intermittent stream. The second measure, Ordinance 4572, limits the areas where helicopter operations may occur. That ordinance restricts helicopter "staging and loading activities" and "service areas" to (1) the parcel from which timber is being harvested or a contiguous parcel; (2) parcels whose zoning permits timber harvesting; and (3) property within the boundaries of an approved timber harvest plan (THP). Neither the riparian nor the helicopter ordinance applies inside the coastal zone.⁷

In December 1999, the County adopted two additional sets of measures affecting timber harvesting.⁸ One set included Resolution 493-99 and Ordinance 4577, which amend the County's General Plan/LCP and its zoning code. The effect of those measures is to limit timber harvesting to properties, whether inside or outside the coastal zone, that are zoned either Timber Production (TP) or Mineral Extraction Industrial (M-3), and to properties outside the coastal zone that are zoned Parks, Recreation and Open Space (PR). The other set of measures comprised Resolution 494-99 and Ordinance 4578. If effective, those measures would have added the Commercial Agricultural (CA) zone as a fourth zone where timber harvesting is a permitted use. In addition, the ordinance would have extended the helicopter and riparian restrictions to the coastal zone. The ordinance also would have imposed new design standards for private roads. According to the County, however, Resolution 494-99 and Ordinance 4578 were subsequently withdrawn because the Coastal Commission did not take final action on them, and they are not effective.

The County forwarded Resolution 493-99 and Ordinance 4577 to the Coastal Commission. Those measures had evolved from the earlier General Plan/LCP amendments conceptually approved in November 1998. In 1999, the Coastal Commission had rejected the conceptually approved amendments, returning them to the County with proposed modifications. As relevant here, the proposed modifications affected timber production zoning within the coastal zone. The first suggested modification imposed certain limitations on applications for timber production zoning within the coastal zone. The second proposed modification mandated that applications for rezoning to TP within the coastal zone be processed as LCP amendments. The County incorporated those modifications into Resolution 493-99 and Ordinance 4577.

In February 2000, the Coastal Commission certified Resolution 493-99 and Ordinance 4577 as part of Major Amendment 3-98 to the County's General Plan/LCP.

III. Proceedings in the Trial Court

In December 1998, Big Creek filed a petition for a writ of mandate and for declaratory and other relief against the County. Big Creek's action challenged Ordinance 4529, the interim riparian corridor ordinance, as well as the General Plan/LCP amendments that were conceptually approved in November 1998. Big Creek asserted causes of action based on the California Environmental Quality Act (CEQA) and on the doctrine of preemption.

In March 2000, CCFA petitioned for a writ of mandate against the County and the Coastal Commission, seeking to set aside Ordinances 4571, 4572, 4577, and 4578, as well as the Commission's certification. CCFA asserted CEQA and preemption grounds for its petition. At the same time, Big Creek amended its petition, naming the Coastal Commission and adding allegations related to actions taken since 1998 both by that body and by the County.

Based on the parties' stipulations, the court consolidated the plaintiffs' actions. Later, again by stipulation, the court bifurcated the preemption claims and ordered them to be tried first.

In December 2000, the court conducted a hearing on the preemption issues. Prior to the hearing, the parties submitted substantial briefing. At the hearing, Big Creek offered in evidence three administrative records — two from proceedings before the...