Littoral Development Co. v. San Francisco Bay Conservation etc. Com.

• Decision Date: 02 May 1994
• Docket Number: No. A061428,A061428
• Citation: 29 Cal.Rptr.2d 518,24 Cal.App.4th 1050
• Court: California Court of Appeals Court of Appeals
• Parties: LITTORAL DEVELOPMENT CO. et al., Plaintiffs/Appellants, v. SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION, Defendant/Respondent.

Page 518

29 Cal.Rptr.2d 518

24 Cal.App.4th 1050

LITTORAL DEVELOPMENT CO. et al., Plaintiffs/Appellants, v. SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION, Defendant/Respondent.

No. A061428.

Court of Appeal, First District, Division 5, California.

May 2, 1994.

As Modified on Denial of Rehearing May 26, 1994.

Review Denied July 28, 1994.

Terry J. Thomas, Sherry B. Bowers, Bowers, Thomas & Associates, Truckee, for plaintiffs and appellants.

Ronald A. Zumbrun, Robin L. Rivett, Sacramento, amicus curiae, for plaintiffs and appellants.

Daniel E. Lungren, Cal. Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Jan S. Stevens, Sr. Asst. Atty. Gen., Linus Masouredis, Deputy Atty. Gen., Oakland, for defendant and respondent.

PETERSON, Presiding Justice.

In order to protect San Francisco Bay from further environmental degradation through filling and development, the Legislature created the San Francisco Bay Conservation and Development Commission (BCDC), and gave BCDC jurisdiction over all areas of the bay subject to "tidal action"--which for purposes relevant here the Legislature defined in GOVERNMENT CODE SECTION 66610¹. This statute specifically defined San Francisco Bay, for purposes of BCDC jurisdiction and as here pertinent, as including all sloughs; "marshlands" extending from a seaward line of "mean high tide" of the bay to a landward line five feet above mean sea level; "tidelands" lying between mean high tide and mean low tide; and "submerged lands" lying below mean low tide.

Section 66610 also conferred jurisdiction to BCDC over a "shoreline band." That band is measured 100 feet landward of and parallel with the shoreline of San Francisco Bay. BCDC contends that the "shoreline" of San Francisco Bay, comprising the seaward boundary of the 100-foot "shoreline band" under its jurisdiction, is coterminous with the level of the highest tide recorded since 1965, when BCDC was formed. In this case, it has sought to regulate the use of appellant's land accordingly.

We reject BCDC's contention and hold that the "shoreline" of San Francisco Bay, comprising the seaward boundary of the 100-foot shoreline band under BCDC's jurisdiction, is the line of mean high tide of the bay, which only in marshlands is extended landward to a line 5 feet above the line of mean sea level.

We, thus, reverse part of the trial court's decision, which validated BCDC's assertion of its jurisdiction over upland portions of a previously developed and filled parcel, littoral to the bay, which was not shown to lie within the 100-foot shoreline band of BCDC's jurisdiction. We affirm the portion of the trial court's decision which validated BCDC jurisdiction over a small salt marsh on the bayward one-third of the parcel, which was within BCDC's statutory jurisdiction over marshlands.

I. FACTS AND PROCEDURAL HISTORY

The bayshore parcel in question here has a long and interesting history. For present purposes, we summarize the relevant facts as follows.

The parcel in issue lies in Sausalito, in a lowlying area next to the Richardson Bay portion of San Francisco Bay. Around 1936, while the Golden Gate Bridge was being constructed, some of the spoils excavated in the construction of the bridge were used to fill the landward one-third of the parcel. Over the succeeding decades, successive fillings extended this area bayward. The land continually subsides due to the settling of the underlying bay mud and sediments. As a result, the actual elevation of the land has varied; its height at any particular past time is somewhat difficult to determine.

In the early 1960's, the previous owner of the parcel filled it out to the bayward limits of the parcel. The height of the parcel after this filling is a matter in dispute; the prior owner believed he had filled it himself to a height of about seven feet, but professional surveys done after the filling mostly show heights in the range of four to five feet.

In 1965, BCDC was given jurisdiction over the bay by a legislative grant, the terms of which we will explore in the succeeding section of this opinion. One relevant fact for purposes of this case is that BCDC has regulatory power over any parcel which was within the limits of its jurisdiction in 1965, or which became so thereafter; filling subsequent to 1965 would not divest BCDC of this jurisdiction.

In 1976, appellants Littoral Development Co. and Diversified Realty Services, the new owners of the parcel, filled and fenced the landward two-thirds of the parcel for use as a parking lot. Appellants subsequently applied for, but did not receive, a BCDC permit for this filling. The parties devote much time and energy to assailing each other's supposed lack of good faith regarding the permit process for this filling and other related matters, but for present purposes their recriminations regarding the 1976 filling and their subsequent disputes are not directly relevant. The filled and fenced portion of the parcel is mostly below 5.5 feet in elevation, measured from mean sea level, but it was not shown to lie below the level of mean high tide, either in its present condition or prior to the 1976 filling. This landward two-thirds of the parcel has historically been inundated by water only in exceptional or record high tides, or during major storms which might occur about once or twice every decade. The upland portion of the parcel is not marshland, and has been used for parking or storage of vehicles and other related uses since at least 1977.

The bayward, unfenced portion of the parcel, however, now constitutes a small parcel of lowlying salt marsh, covered with vegetation of a type which is characteristic of salt marshes around the bay.

Since at least 1976, the question of BCDC's jurisdiction over the parcel has been in dispute. In brief, BCDC contends here that almost all of the parcel is within the shoreline of the bay, or within the shoreline band as BCDC would define it, since it has been inundated in the past by record high tides. Appellants contend no portion of the parcel lying more than 100 feet landward of the line of mean high tide has been subject to BCDC jurisdiction for the period from 1965 to the present.

Appellants desired to construct a hotel on the property. In order to do so, they had to obtain permits both from Marin County, for any portion of the property not within BCDC jurisdiction, as well as from BCDC for the area within its bay and shorezone jurisdictions. Since the dividing line between these respective jurisdictional limits was not known, the County asked BCDC to determine the limits of its jurisdiction over the parcel.

BCDC thereafter followed the recommendation of its staff, and ruled that almost all of the parcel (excepting only one small portion of a corner on the landward side) was within the shoreline of the bay. The BCDC decision reasoned that the parcel lay almost entirely within the bay because its elevation was beneath the level of the highest recorded high tide since 1965, which was about 5.5 feet above sea level.

Appellants brought this action, seeking a writ of mandate from the superior court overturning the BCDC decision. The superior court denied the petition. Appellants ultimately filed a timely appeal from a resulting judgment.

Later BCDC also issued a cease and desist order which would require appellants to remove the fill placed on the landward two-thirds of the property in 1976 without a BCDC permit. Appellants brought a separate action in the superior court contesting the cease and desist order, which is the subject of a separate appeal Littoral Development Co. v. San Francisco Bay Conservation etc., Com. (A064842) pending in this court.

II. DISCUSSION

We conclude we must affirm in part, reverse in part, and remand. BCDC and the superior court correctly ruled that the bayward one-third of the parcel was a lowlying salt marsh within BCDC jurisdiction. As we explain, however, the landward two-thirds of the parcel is not part of any marsh, and was filled and developed and used continually since before 1965 when BCDC came into existence, and is not subject to the jurisdiction of BCDC.

A. The Landward Two-thirds of the Parcel

The landward two-thirds of the parcel was not shown to lie less than 100 feet beyond the level of mean high tide at any time from 1965 to the present. We will invalidate BCDC's attempt to assert jurisdiction based upon record high tides which in the past have occasionally inundated the parcel. For jurisdictional purposes, the shoreline of the bay commences at the line of mean high tide, except in marshlands. BCDC cannot expand its jurisdiction landward by administratively redefining the shoreline of the bay as the line of maximum inundation of bayshore property by occasional and exceptional high tides occurring since 1965.

We begin with the statute. In 1965, the Legislature enacted the McAteer-Petris Act (§ 66600 et seq.), which sets the limits of BCDC's jurisdiction over the bay. (See Acme Fill Corp. v. San Francisco Bay Conservation etc. Com. (1986) 187 Cal.App.3d 1056, 1068, 232 Cal.Rptr. 348; Mein v. San Francisco Bay Conservation etc. Com. (1990) 218 Cal.App.3d 727, 732, 267 Cal.Rptr. 252.) As originally enacted, section 66610 defined BCDC's jurisdictional limits over the bay in relevant part as follows: "For the purposes of this title, the San Francisco Bay includes the shoals outside the Golden Gate and the water areas from the south end of the bay to the Golden Gate and to the Sacramento River line ... and, specifically, the marshlands (land lying between mean high tide and five feet above mean sea level); tidelands (land lying between mean high tide and mean low tide); and submerged lands (land lying below mean low tide), but excluding from the marshlands, tidelands and submerged lands those lands which are not subject to tidal action." (Stats.1965, ch. 1162, § 1, pp. 2941-2942, emphasis added.)

Certain features of this language bear...