Existing law, the California Coastal Act of 1976, requires any person wishing to perform or undertake any development in the coastal zone, as defined, in addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency, to obtain a coastal development permit. The act further provides for the certification of local coastal programs by the California Coastal Commission. The act prohibits the commission, except with respect to appeals to the commission, from exercising its coastal development permit review authority, as specified, over any new development within the area to which the certified local coastal program, or any portion thereof, applies. The act specifies that any appealable action on a coastal development permit or claim of exemption for any development by a local government or port governing body may be appealed to the commission by an applicant, any aggrieved person, or any 2 members of the commission, except as provided. Under existing law aggrieved person means any person who, in person or through a representative, appeared at a public hearing of the commission, local government, or port governing body in connection with the decision or action appealed or who, by other appropriate means prior to a hearing, informed the commission, local government, or port governing body of the nature of his or her concerns or who for good cause was unable to do either.

This bill would, notwithstanding those provisions, and to the extent permitted under federal law, authorize an applicant for a coastal development permit, permit or any aggrieved person, as defined, person to file an appeal of any appealable action on a coastal development permit or claim for exemption for any development proposed to be located in an area subject to a certified local coastal program directly to a superior court of competent jurisdiction, in lieu of filing an appeal with the commission. The bill would also further limit the meaning of aggrieved person to a person who is either domiciled or owns real property in a coastal county impacted by the decision or within 1,000 feet of an impacted coastal county.

Existing law, the California Coastal Act of 1976, requires any person wishing to perform or undertake any development in the coastal zone, as defined, in addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency, to obtain a coastal development permit. The act further provides for the certification of local coastal programs by the California Coastal Commission. The act prohibits the commission, except with respect to appeals to the commission, from exercising its coastal development permit review authority, as specified, over any new development within the area to which the certified local coastal program, or any portion thereof, applies. The act specifies that any appealable action on a coastal development permit or claim of exemption for any development by a local government or port governing body may be appealed to the commission by an applicant, any aggrieved person, or any 2 members of the commission, except as provided.

This bill would, notwithstanding those provisions, and to the extent permitted under federal law, authorize an applicant for a coastal development permit, or any aggrieved person, as defined, to file an appeal of any appealable action on a coastal development permit or claim for exemption for any development proposed to be located in an area subject to a certified local coastal program directly to a superior court of competent jurisdiction, in lieu of filing an appeal with the commission.

Date of Hearing: April 4, 2016

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Das Williams, Chair

ABPCA Bill Id:AB 2171 (

Author:Jones) – As Amended Ver:March 29, 2016

SUBJECT: Coastal resources: development review: appeals

SUMMARY: Authorizes any aggrieved person to file an appeal of any appealable action on a Coastal Development Permit (CDP) or claim for exemption to a superior court instead of the California Coastal Commission (Commission). Limits who may file an appeal to individuals living within 1000 feet of an impacted county.

EXISTING LAW, pursuant to the Coastal Act:

1. Requires a person planning to perform or undertake any development in the coastal zone to obtain a coastal development permit from the Commission or local government enforcing a Local Coastal Program (LCP).
   
2. Defines "development" to mean, among other things, the placement or erection of any solid material or structure on land or in water. "Structure" includes, but is not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line.
   
3. Defines the “coastal zone” as the land and water area of the State of California from the Oregon border to the border of the Republic of Mexico, extending seaward to the state's outer limit of jurisdiction, including all offshore islands, and extending inland generally 1,000 yards from the mean high tide line of the sea. In significant coastal estuarine, habitat, and recreational areas the coastal zone extends inland to the first major ridgeline paralleling the sea or five miles from the mean high tide line of the sea, whichever is less. In developed urban areas the zone generally extends inland less than 1,000 yards. The coastal zone does not include the area of jurisdiction of the San Francisco Bay Conservation and Development Commission, nor any area contiguous thereto, including any river, stream, tributary, creek, or flood control or drainage channel flowing into such area.
   
4. Provides the right of judicial review to any aggrieved person for any decision or action of the Commission.
5. Provides the right of judicial review to any person, including an applicant for a CDP or the Commission, aggrieved by the decision or action of a local government that is implementing a LCP if the decision or action is not appealable to the Commission.
   
6. Authorizes the Commission to intervene in any such proceeding upon showing the matter involves a question of the conformity of a proposed development with a LCP or the validity of a local government action taken to implement a LCP. Allows any local government to request that the Commission intervene.
7. Specifies that any appealable action on a CDP or claim of exemption for any development by a local government is appealable to the Commission by an applicant, any aggrieved person, or any two members of the Commission. Allows the Commission to approve, modify, or deny such proposed development, and if no action is taken within the specified time limit, the decision of the local government is final, unless the time limit is waived by the applicant.

THIS BILL:

1. Authorizes any aggrieved person to file an appeal of any appealable action on a CDP or claim for exemption to a superior court instead of the Commission.
2. Limits who may appeal an action on a CDP or claim for exemption to a person who lives in or owns property in a coastal county impacted by the decision or a person living within 1,000 feet of an impacted coastal county.
   

FISCAL EFFECT: Unknown

COMMENTS:

1. Author’s Statement. According to the author’s office:

Currently, appealable actions on a coastal development permit or claim for exemption for any development proposed to be located in an area subject to a certified local coastal program need to be filed to the California Coastal Commission. The California Coastal Commission, set to enforce the 1976 Coastal Act, consists of 12 part time commissioners who, although not required to be attorneys, are tasked to solve the complex legal questions relating to the Coastal Act.

This bill would allow the appeals to be filed directly to the local superior court under whose jurisdiction the project falls. The appeal will be handled by a judge who can interpret and enforce the Coastal Act just as well as the Coastal Commission, and the increased involvement from the superior courts can ensure a faster, more streamlined process where appeals can be scrutinized and decided at a greater pace.

1. Coastal Commission. The Commission was established by voter initiative in 1972 (Proposition 20) and later made permanent by the Legislature through adoption of the California Coastal Act of 1976. In partnership with coastal cities and counties, the Commission plans and regulates the use of land and water in the coastal zone. Development activities, which are broadly defined by the Coastal Act to include construction of buildings, divisions of land, and activities that change the intensity of use of land or public access to coastal waters, generally require a CDP from either the Commission or the local government with a certified LCP.

The Commission is an independent, quasi-judicial state agency. The Commission is composed of 12 voting members, appointed equally (4 each) by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. Six of the voting commissioners are locally elected officials and six are appointed from the public at large. Three ex officio (non-voting) members represent the Resources Agency, the California State Transportation Agency, and the State Lands Commission.

According to the Commission’s mission statement:

The Commission is committed to protecting and enhancing California’s coast and ocean for present and future generations. It does so through careful planning and regulation of environmentally-sustainable development, rigorous use of science, strong public participation, education, and effective intergovernmental coordination.”

1. Appeals. Local government CDP decisions, for the most part, are appealable to the Commission. All of the Commission’s decisions are subject to judicial review. Actions not appealable to the Commission also are subject to judicial review. Therefore, all aggrieved persons can have their day in court. The Commission has a staff of almost 150 which analyze projects before the Commission for constancy with the Coastal Act. Local governments report many hundreds of locally-approved CDPs to the Commission every year. Between slightly more than half to two-thirds local CDPs are appealable to the Commission. If the Commission finds that an appeal does raise a substantial issue, it takes jurisdiction over the matter and conducts an independent de novo review of the CDP application. Most of the time this de novo review requires that the applicant or local government provide additional information and analysis to address the appeal issues. The Commission heard 41 appeals in 2013 and has received an average of 70 appeals a year. This reflects an average appeal rate of 7.2%, ranging from a high of 9.7% in 2010 to a low of 4.9% in 2004. Last year only four lawsuits challenged the actions of the Commission.

This bill would allow any aggrieved person to bypass the Commission and go directly to judicial review. The Commission’s CDP appeal process is an important oversight mechanism for the protection of public access and coastal resources. Currently, the judicial review option is infrequently used. It is unclear what the benefit is of bypassing the Commission, especially in light of the case backlog in California’s court system. This bill would also limit who can appeal a decision to people who live near or in a county impacted by the decision. This provision would prohibit Californians who care about the coast, but do not live near a specific project, from appealing a decision. This is contrary to the Coastal Act’s mission of protecting the coast for all Californians.

1. Related bills

AB 2648 (Jones, 2016) allows a County to petition to a superior court to delegate the County exclusive jurisdiction over coastal permitting thereby removing the Commission oversight of the Counties LCP. Allows any aggrieved to appeal to superior court. The bill is awaiting hearing in the Assembly Natural Resources Committee.

1. Double Referrals. This bill has been double referred to Assembly Judiciary Committee.
   

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

Amigoes de los Rios

Azul
Blue Frontier Campaign
California Coastkeeper Alliance
California Coastal Protection Network

California League of Conservation Voters
Coastal Environmental Rights Foundation
Courage Campaign
Committee for Green Foothills

Endangered Habitats League

Environmental California

Environmental Defense Center

Friends of Harbors, Beaches & Parks
Humboldt County Surfrider
Law Offices of Mark Massara
Natural Resources Defense Council
NorthCoast Environmental Center
Orange County Coastkeeper
Save Our Shores
Sierra Club California
Sugar Law Center for Social Justice
Turtle Island Restoration Network
2 Individuals

Analysis Prepared by: Michael Jarred / NAT. RES. / (916) 319-2092