San Diego Gas & Electric Co. v. City of Carlsbad, D027407

• Citation: 64 Cal.App.4th 785,75 Cal.Rptr.2d 534
• Decision Date: 09 June 1998
• Docket Number: No. D027407,D027407
• Parties: , 98 Cal. Daily Op. Serv. 4423 SAN DIEGO GAS & ELECTRIC CO., Plaintiff and Respondent, v. CITY OF CARLSBAD et al., Defendants and Appellants.
• Court: California Court of Appeals

Page 534

75 Cal.Rptr.2d 534

64 Cal.App.4th 785, 98 Cal. Daily Op. Serv. 4423

SAN DIEGO GAS & ELECTRIC CO., Plaintiff and Respondent, v. CITY OF CARLSBAD et al., Defendants and Appellants.

No. D027407.

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

June 9, 1998.

Review Denied Sept. 23, 1998.

Ronald R. Ball, City Attorney, and Jane Mobaldi, Deputy City Attorney, for Defendants and Appellants.

Brown, Winfield & Canzoneri, Inc., J. Kenneth Brown and Scott H. Campbell as Amici Curiae on behalf of Defendant and Appellant City of Carlsbad.

Luce, Forward, Hamilton & Scripps, Jeffrey A. Chine, Stephenson, Worley, Garratt, Schwartz, Heidel & Prairie and Donald R. Worley for Plaintiff and Respondent.

HUFFMAN, Acting Presiding Justice.

In this declaratory relief action, the trial court granted summary judgment to plaintiff and respondent San Diego Gas & Electric Co. (SDG & E) and against defendants and appellants the City of Carlsbad and its officials (City), on the ground that City's effort to regulate, by way of City's floodplain management regulations (Carlsbad Mun. Code CMC), ch. 21.110 et seq.), the deposit of sand dredged from a lagoon adjacent to SDG & E's power plant upon state beaches within the City limits, was invalid as preempted by the constitutional and statutory scheme applicable to the State Public Utilities Commission (PUC). (Cal. Const., art. 12, § 8; Pub. Util.Code, § 701 et seq.) ¹

City appeals, contending it should have concurrent jurisdiction with the PUC over disposition of the spoils of SDG & E's dredging operation because (1) the PUC has not taken any action to regulate this specific activity, (2) disposal of sand produced by dredging should not be considered to be an essential utility facility or activity which would be clearly subject to PUC control, and/or (3) general police power allows such health and safety regulation. Applying standard rules for determining if state law preempts local regulation, we conclude the subject constitutional and statutory provisions grant power to the PUC, not to City, to place restrictions on this activity.

FACTUAL AND PROCEDURAL BACKGROUND

At all relevant times, SDG & E, a public utility company, owned and operated the Encina The proceeds from dredging, sediment from the lagoon floor, are termed dredging spoils and are piped westward and deposited on the adjacent coastline. The coastal area involved here is a state beach located within City's boundaries. The beach is owned by the State Lands Commission (SLC) and operated by the State Parks and Recreation Department (DPR). City has no ownership interest in it. Pursuant to a lease from the SLC and permits from the DPR and the California Coastal Commission, SDG & E deposits dredging spoils (sand) on the state beach area. Historically, SDG & E has deposited the spoils near the mouth of the lagoon and its inlet. SDG & E has also obtained permits for this activity from the United States Army Corps of Engineers and the State Regional Water Quality Control Board.

Electrical Generating Plant (the plant), which supplies electricity to approximately 950,000 customers in and around City. The plant is located on land SDG & E owns on Agua Hedionda Lagoon (the lagoon) in the City. SDG & E extensively dredged the westernmost portion of the lagoon in 1952-1954 when it constructed the plant, and continues to do so to keep the lagoon open so that channeled and accumulated sea water may be used for the essential purpose of cooling the plant's electric generating units. Normal tidal and wave action causes sand to migrate southward along the coast, building up inside the lagoon and its inlet. Should routine maintenance dredging be discontinued, the risk of lagoon closure, plant shutdown, and ecological damage is increased.

Beaches in the City area have sustained extensive erosion and sand loss in recent years. In 1983, City adopted the Agua Hedionda segment of its coastal zone plan, to establish a permit scheme to regulate coastal development, including dredging. (CMC, ch. 21.80.) The purpose of the ordinance was to implement coastal preservation goals as set forth in the California Coastal Act of 1976. (Pub. Resources Code, § 30000 et seq.) Such goals include protection of residents and minimization of costly flood control expenditures, which is also consistent with federal legislative goals found in the National Flood Insurance Act of 1968 (42 U.S.C. § 4001 et seq.), which required local entities to enact such regulations. Local entities which did not enact such development limitations effectively precluded their residents from being eligible for federal assistance in case of flooding. (42 U.S.C. § 4002(b)(3).)

In 1988, City adopted its Floodplain Management Regulations (floodplain ordinance), designed to conserve natural resources, prevent flooding, and prevent and control beach and shore erosion. (CMC, ch. 21.110.) The preamble of the floodplain ordinance relies as authority on the comprehensive planning and zoning law of Government Code section 65302 et seq., which is designed to promote public health, safety and welfare. This ordinance provides that no structure or land in certain areas of City may be "constructed, located, extended, converted or altered" without a special use permit, and that failure to obtain a required permit is a misdemeanor. (CMC, § 21.110.080.)

Under protest, SDG & E obtained in 1993 a City special use permit for its maintenance dredging of the outer lagoon area, for a five-year period. The permit gives City officials the power to approve the dredge plan and the location of the deposit of spoils. In September 1995, as a condition of the permit, the city engineer ordered SDG & E to place the first 150,000 cubic yards of dredge spoils (later modified to 100,000 cubic yards, out of an anticipated 450,000 total cubic yards) on a northerly section of the state beach (North Beach), about a mile north of the mouth of the lagoon. North Beach was a critically eroded part of the shoreline. SDG & E did not appeal the conditions of the permit, but later began dredging in violation of those conditions, dumping sand elsewhere. City issued a stop work notice and sent police officers to enforce it. SDG & E then appealed the permit conditions to the city council, which amended but upheld the conditions.

In October 1995, SDG & E filed this action for declaratory and other relief, to challenge City's jurisdiction over the dredging Before the scheduled trial date, SDG & E brought a motion for summary judgment on the declaratory relief request (dismissing other causes of action for injunctive relief, etc.), and City did likewise, seeking a ruling on whether it had the authority to regulate the deposit of sand dredged by SDG & E on beaches within its boundaries. SDG & E's expert oceanographer Scott A. Jenkins gave his opinion that it would be futile to deposit sand "immediately" to the north of the lagoon and jetty, as it would naturally migrate southward and require further dredging. City's official, defendant City Engineer Lloyd Hubbs, stated that no evidence exists that placing sand on North Beach as requested, one mile north of the lagoon, will increase the flow of sand back to the lagoon.

                operation. 2  City responded with a cross-complaint seeking similar relief in its favor.  SDG & E's request for a preliminary injunction was denied.  In March 1996, City obtained an advisory opinion from the PUC legal department to the effect that City would not be preempted from regulating the placement of sand on beaches within its limits resulting from SDG & E dredging operations, assuming that the issues presented did not involve SDG & E's right to perform dredging in the first instance, nor whether such regulation would render the dredging ineffective and thus make operation of the plant infeasible.  The author of the advisory letter noted that, even though under case law SDG & E might be required to obtain a local permit, the PUC "retains paramount jurisdiction vis-a-vis the city over the project."
                

Ultimately, SDG & E's motion was granted and City's denied, the court ruling that there were no triable issues of fact as to whether City's floodplain ordinance and permit procedure were void as to SDG & E, "as they constitute an attempt to regulate an essential utility facility or activity under the guise of protecting public safety." The trial court declined to grant declaratory relief at SDG & E's request to the effect that City should have pursued grievance proceedings through the PUC, as that issue had not been raised in the pleadings. Judgment was entered accordingly and City appeals. ³ By permission, 62 California cities have filed an amici brief in support of City's position. ⁴ (Cal. Rules of Court, rule 14.)

DISCUSSION

Because the trial court's decision was rendered in the context of cross-summary judgments (Code Civ. Proc., § 437c), our standard of review is well settled:

"[T]he applicable standard of review on appeal in this case is de novo or independent review. There were no credibility issues at trial and the court decided only [ ] limited question[s] of law. As an appellate court, we 'conduct independent review of the trial court's determination of questions of law.' [Citation.] Interpretation of a statute is a question of law. [Citations.] Further, application of the interpreted statute to undisputed facts is also subject to our independent determination. [Citation.]" (Harbor Fumigation, Inc. v. County of San Diego Air Pollution Control Dist. (1996) 43 Cal.App.4th 854, 859, 50 Cal.Rptr.2d 874.)

We first set forth rules for examining if a particular area of regulation has been fully occupied by statutory or constitutional law, and then analyze the respective roles of state and local government concerning utility regulation and coastal management in this factual context.

I Preemption Analysis

In Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897-898, 16...