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California Court of Appeal Finds Certified Local Coastal Plan, Not the Coastal Act Regulation, Governs City’s Coastal Development of Housing Facility

California Court of Appeal Finds Certified Local Coastal Plan, Not the Coastal Act Regulation, Governs City’s Coastal Development of Housing Facility
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A local interest group brought suit challenging the City of San Diego’s (City) issuance of a Conditional Use Permit (CUP) allowing the City to convert a motel that it had purchased into a transitional housing facility for homeless misdemeanor offenders. The group alleged that the City was required to obtain a Coastal Development Permit (CDP) for the project. After the Superior Court granted a writ of mandate, the City appealed. The Court of Appeal for the Fourth Judicial District reversed, finding that the City’s certified local coastal plan governed the City’s coastal development, under which the project was exempt. [Citizens for South Bay Coastal Access v. City of San Diego, ___Cal.App.5th___, Case No. D075387 (4th Dist. Feb. 18, 2020).]

Factual and Procedural Background

The City acquired a property, which was operated as a motel, for the purpose of converting the motel into a transitional housing facility for homeless misdemeanor offenders. The City planned to rehabilitate the existing building on the property with interior and exterior improvements. The City’s plan also reduced the existing 53 parking spaces in the parking lot to a total of 25 parking spaces and added passive open green spaces.

The property is located within the Coastal Overlay Zone as defined by the City. Generally, the City’s Municipal Code provides that a Coastal Development Permit is required for all coastal development of properties within the Coastal Overlay Zone unless an exemption applies. When the City passed a resolution approving a conditional use permit for the project in late 2017, the staff presentation stated that the facility was exempt under the City’s municipal code.

Plaintiff Citizens for South Bay Coastal Access brought suit, claiming, among other things, that the project required issuance of a CDP. In particular, it asserted that the California Coastal Act and the regulations promulgated thereunder had the effect of preempting the City’s municipal code and required the City to obtain a CDP. Plaintiff claimed two sections of the regulations triggered the CDP requirement: 1) a section requiring a CDP for any improvement to structures that change the intensity of use of the structure; and 2) a section requiring a CDP for any improvement made pursuant to a conversion of an existing structure from a visitor-serving commercial use to a use involving a fee ownership. (Cal. Code Regs., tit. 14, § 13253.)

Plaintiff did not dispute that the portion of the City’s municipal code governing the requirement to obtain a CDP for development in the Coastal Overlay Zone contained an exemption for improvements to existing structures. It also did not dispute that none of the municipal code’s exceptions to the existing-structure exemption for certain types of improvements were applicable. In particular, a section of the code set forth an exception for improvements that result in an intensification of use, which it defines as:

“. . .a change in the use of a lot or premises which, based upon the provisions of the applicable zone, requires more off-street parking than the most recent legal use on the property.”

The City apparently had determined that this exception did not apply because its planned use of the property would require less parking, and the City planned to significantly reduce the number of parking spaces.

At the Superior Court

While the Superior Court rejected plaintiff’s other arguments (e.g., California Environmental Quality Act (CEQA) and Planning and Zoning Law claims), it agreed with the argument that state law preempted portions of the existing-structure exemption. Among other things, the court found that the City municipal code exemption was applied in such a way that a CDP was not required because the project resulted in a lowered intensification of use (as evidenced by less required parking). This, the court found, was forbidden under state law, which requires a CDP for any change in intensity, not just a higher intensity. In addition, the Superior Court also found that the project would convert the motel from multiple unit commercial use to a use involving a fee ownership. This, the court found, also would be forbidden under state law without a CDP. After the Superior Court entered judgment in favor of plaintiff, the City appealed.

The Court of Appeal’s Decision

Legal Principles Applicable to Preemption

The Court of Appeal began with a discussion of the legal principles applicable to a preemption analysis. Generally, a county of city may make and enforce within its limits local, police, sanitary, and other ordinance and regulations not in conflict with state law. Local legislation in conflict with general law is void. Conflicts exist if the ordinance duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. A local ordinance contradicts state law when it is inimical to or cannot be reconciled with state law.

The California Coastal Act

The Court of Appeal next addressed the California Coastal Act, the intent of which is to provide a comprehensive scheme to govern land use planning for the coastal zone of California. Given this broad geographic scope, the Coastal Act recognizes the need to “rely heavily” on local governments. To that end, it requires local governments to develop local coastal programs, which are comprised of a land use plan and a set of implementing ordinances. Local coastal programs must be submitted to the California Coastal Commission (Commission) for a certification of consistency, and, once certified, the Commission delegates authority over CDPs to the local government.

Notably, once the Commission certifies a local government’s local coastal program, the Commission no longer exercises original jurisdiction over the issuance of a CDP. However, because the Commission still retains jurisdiction over the issuance of CDPs in certain circumstances (e.g., when no local coastal program has been certified), the Coastal Act contains provisions governing the Commission’s exercise of its original jurisdiction to issue CDPs.  Consistent with these provisions, the Commission has promulgated regulations that apply to instances in which it is operating under its original jurisdiction to issue CDPs. Those regulations include, among other things, the regulations referenced by plaintiff and relied on by the Superior Court to conclude that state law contradicted the City’s municipal code provisions governing whether a CDP was required for development of the property.

Preemption Analysis

Applying the above principles, the Court of Appeal found that the Superior Court’s reasoning contained a fundamental flaw. As a basic premise, the Superior Court assumed that the Commission’s regulations pertaining to its original jurisdiction were intended to apply to the City’s decision whether a CDP is required for a proposed coastal development. Finding a contradiction between the Commission’s regulations and the City’s LCP, both of which the Superior Court assumed were applicable, it concluded that the Commission’s regulations should prevail. However, because the Commission had certified the City’s LCP, the Commission’s regulations did not apply to the City’s CDP decision. As such, there was no contradiction with state law, and preemption was not applicable. On that basis, the Court reversed the Superior Court’s decision and remanded with direction to deny the petition.

Conclusion and Implications

The case is significant because it provides a substantive discussion of the relationship between the California Coastal Act and accompanying regulations, on the one hand, and local coastal programs, on the other. The decision is available online at:

(James Purvis)