Untitled California Attorney General Opinion ( 1987 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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OPINION :
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of : No. 87-405
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JOHN K. VAN DE KAMP : SEPTEMBER 10, 1987
Attorney General :
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JACK R. WINKLER :
Assistant Attorney General :
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PETER H. KAUFMAN :
Deputy Attorney General :
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THE CALIFORNIA COASTAL COMMISSION, has requested an
opinion on the following questions:
1. May a city or county, by ordinance, including those
adopted by referendum or initiative, lawfully authorize a use of
land in the coastal zone which is not permitted by a local
coastal program or land use plan certified by the California
Coastal Commission without approval of the Commission?
2. May a city or county lawfully prohibit a use of
land in the coastal zone which is permitted by a local coastal
program or land use plan certified by the California Coastal
Commission, by ordinance, including those adopted by referendum
or initiative, without the approval of the Commission?
3. Are the Coastal Act's provisions for approval of
amendments to a certified local coastal program or land use plan
by the California Coastal Commission applicable to charter
cities?
CONCLUSIONS
1. A city or county, by ordinance, including those
adopted by referendum or initiative, may not lawfully authorize a
use of land in the coastal zone which is not permitted by a local
coastal program or land use plan certified by the California
Coastal Commission without approval of the Commission.
2. A city or county may not lawfully prohibit a use of
land in the coastal zone which is permitted by a local coastal
program or land use plan certified by the California Coastal
Commission by ordinance, including those adopted by referendum or
initiative, without the approval of the Commission.
3. The Coastal Act's provisions for approval of
amendments to a certified local coastal program or land use plan
by the California Coastal Commission are applicable to charter
cities.
ANALYSIS
The Planning and Zoning Law (Government Code section
65,000 et seq.) requires each county and city in California to
adopt a comprehensive, long-term general plan for the physical
development of the county or city. (Government Code section
65,300.) The general plan consists of a statement of development
policies and includes diagrams and text setting forth objectives,
principles, standards, and plan proposals. (Government Code
section 65,302.) The general plan must contain certain elements
required by state law and may contain other elements at the
option of the county or city. The required elements of a general
plan are (a) a land use element, (b) a circulation element, (c) a
housing element, (d) a conservation element, (e) an open-space
element, (f) a noise element, and (g) a safety element.
(Government Code section 65,302.) A land use element designates
the proposed general distribution and general location and extent
of the uses of the land for housing, business, industry, open
space, including agriculture, natural resources, recreation, and
enjoyment of scenic beauty, education, public buildings and
grounds, solid and liquid waste disposal facilities, and other
categories of public and private uses of land. The land use
element also includes a statement of the standards of population
density recommended for the various districts and other territory
covered by the plan and identifies those areas subject to
flooding. (Government Code Section 65,302(a).)
The general plan of a county or city is implemented by
ordinances and regulations governing zoning, subdividing and
building permits. Zoning ordinances adopted pursuant to
Government Code section 65,800 et seq. divide the county into
districts and prescribe the permitted uses of land and buildings
within each district. Subdivision ordinances adopted pursuant to
the Subdivision Map Act (Government Code section 66,410 et seq.)
govern the division of land for purpose of sale, lease or
financing and require mapping and improvements in new
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developments. Building permit ordinances generally require that
buildings be constructed to certain standards (such as building,
plumbing and electrical codes) and require that permits be
obtained before construction starts.
The California Coastal Act of 1976 ("the Act"; Public
Resources Code section 30,000 et seq.) superimposes upon the
planning, zoning and building regulation functions of counties
and cities certain additional requirements set forth in the Act
which apply to the coastal zone, a strip along the coastline
defined in section 30,103 of the Public Resources Code. The
goals of the Act are set forth in sections 30,001 and 30,001.5 1/
of the Public Resources Code and include resource conservation,
enhancing public access to the seashore and assuring priority for
coastal dependent development. To achieve these goals each
coastal county and city is required to submit a local coastal
program ("LCP") to the California Coastal Commission ("the
Commission") covering that territory within its boundaries within
the coastal zone. (Section 30,500.) An LCP means the county's or
city's (a) land use plans, (b) zoning ordinances, (c) zoning
district maps, and (d) within sensitive coastal resources areas,
other implementing actions, which, when taken together, meet the
requirements of, and implement the provisions and policies of the
Act at the local level. (Section 30,108.6) The Commission
reviews the LCP and certifies it if it meets the requirements of
the Act.
The county or city may submit its LCP in two phases or
all at once. (Section 30,511.) It may first submit the land use
plan portion of the LCP (the "LUP") to the Commission for
certification and later submit the zoning ordinances, zoning
district maps and any other implementing actions necessary to a
complete LCP. The Commission certifies the LUP when it is
submitted first if it conforms to the Act and does not consider
certifying the LCP until the rest of the required material is
submitted. Thus a county or city may have a certified LUP for
its coastal zone without a certified LCP. (Section 30,512 et
seq.)
The Coastal Act requires a coastal development permit
before commencing any development within the coastal zone.
(Section 30,600.) Before the LCP is certified such permit must
be obtained from the Commission unless the county or city sets up
a procedure authorized in the Act to issue such permits itself.
(Section 30,600.) The procedure is designed to assure that no
permits will issue unless the development conforms to the Act.
After the LCP is certified by the Commission the county or city
issues coastal development permits within its boundaries with
certain exceptions. (Sections 30,519 and 30,600.) When the
1. Section references are to the Public Resources Code
unless otherwise indicated.
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Commission has certified a LUP for all or a portion of the
coastal zone in a county or city (prior to LCP certification) the
authority to issue coastal development permits therein may be
delegated to the county or city. (Section 30,600.5) Prior to the
certification of a LCP when coastal development permits are
issued by the county or city, an appeal from its action thereon
may be taken to the Commission which may then grant or deny the
permit. (Section 30,602.)
It is in the context of the foregoing state-county-city
regulatory scheme that the questions presented for this opinion
are cast. The first question asks whether a county or city, by
ordinance, including those adopted by referendum or initiative,
may lawfully authorize a use of land in the coastal zone which is
not permitted by a LCP or a LUP certified by the Commission. The
answer to this question is governed by section 30,514 which reads
as follows:
"(a) A certified local coastal program and all
local implementing ordinances, regulations, and other
actions may be amended by the appropriate local
government, but no such amendment shall take effect
until it has been certified by the commission.
"(b) Any proposed amendments to a certified local
coastal program shall be submitted to, and processed
by, the commission in accordance with the applicable
procedures and time limits specified in Sections 30512
and 30513, except that the commission shall make no
determination as to whether a proposed amendment raises
a substantial issue as to conformity with the policies
of Chapter 3 (commencing with Section 30200) as would
otherwise be required by Section 30512. In no event
shall there be more than three of these submittals of
proposed amendments in any calendar year. However,
there are no limitations on the number of amendments
included in each of the three submittals.
"(c) The commission shall, by regulation,
establish a procedure whereby proposed amendments to a
a certified local coastal program may be reviewed and
designated by the executive director of the commission
as being minor in nature or as requiring rapid and
expeditious action. This procedure shall include
provisions authorizing local governments to propose
amendments to the executive director for such review
and designation. Proposed amendments that are so
designated shall not be subject to the provisions of
subdivision (b) or Sections 30512 and 30513 and shall
take effect on the 10th working day after such
designation. Amendments that allow changes in uses
shall not be so designated.
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"(d) For the purpose of this section, an
'amendment of a certified local coastal program'
includes, but is not limited to, any action by the
local government which authorizes a use of a parcel of
land other than that designated in the certified local
coastal program as a permitted use of such parcel."
If the action of local government is an amendment of a
certified local coastal program or a local implementing
ordinance, regulation, or other action, it does not take effect
until it has been certified by the Commission. (Section
30,514(a).) Subdivision (d) of Section 30,514 provides that any
action by local government which authorizes a use of a parcel of
land other than that designated in the certified LCP as a
permitted use of such parcel is an amendment of a certified LCP
for the purposes of that section.
The first question presented concerns action by the
county or city which would authorize a use of land not permitted
by a certified LCP or certified LUP. In the case of a county or
city with a certified LCP such local action would consitute an
amendment of a certifed LCP within the meaning of section 30,514
and thus would not become effective until it is certified by the
Commission. In the case of a county or city with a certifed LUP
but without a certified LCP, we think that any local action to
authorize a use not permitted by the certified LUP would also
consitute an amendment of an action implementing an LCP within
the meaning of Section 30,514 and therefore would not become
effective until it is certified by the Commission.
In the latter case subdivision (d) of Section 30,514
does not apply because there is no certified LCP to amend.
However, under subdivision (a) of that section the amendments
which do not take effect until certified by the Commission
include not only amendments to a certifed LCP but also amendments
to "all local implementing ordinances, regulations, and other
actions". We have seen that a LUP is an integral part of every
LCP. (Section 30,108.6.) It is that part of the LCP which
indicates the kinds, location and intensity of land uses. (See
Section 30,108.6.) Section 30,108.6 defining "local coastal
program" speaks of land use plans, zoning ordinances, zoning
district maps and "other implementing actions" thus
characterizing land use plans as an action "implementing" a LCP.
Thus we think the Legislature intended Section 30,514 to apply to
local actions amending a certified LUP as well as those amending
a certified LCP. Any local action which authorizes a use of a
parcel of land other than that designated in the certified LUP
would constitute an amendment of that LUP. (Compare Section
30,514(d).)
The first two questions speak of county or city
ordinances and resolutions, including those adopted by referendum
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or initiative. Most county ordinances are adopted by the board
of supervisors of the county (Government Code sections 25,207 and
25,120 et seq.) just as most city ordinances are adopted by the
city council (Government Code sections 37,100 and 36,931 et
seq.). However the electors of a county or city may enact an
ordinance through the procedures of referendum and initiative.
(See article II, section ll of the California Constitution.)
County ordinances may be enacted by vote of the people approving
a referendum (Elections Code section 3750 et seq.) or an
initiative measure (Elections Code section 3700 et seq.).
Similarly city ordinances may be enacted by vote of the people
approving a referendum (Elections Code section 4050 et seq.) or
an initiative measure (Elections Code section 4000 et seq.).
These referendum and initiative provisions apply to planning and
zoning ordinances as well as other kinds of ordinances. See Arnel
Development Co. v. City of Costa Mesa, (1980) 28 Cal.3d 5ll, 516
and Yost v. Thomas (1984) 36 Cal.3d 561, 570. However, it is
well recognized that an ordinance proposed by the electors of a
county or city under the initiative law must constitute such
legislation as the legislative body of such county or city has
the power to enact under the law granting, defining and limiting
the powers of such body. Blotter v. Farrell (1954) 42 Cal.2d 804,
810. Cities and counties have only those powers which are
granted to them by the constitution and laws of the state. Their
authority to plan and regulate land uses in the coastal zone is
defined and limited by the Planning and Zoning Law and the
Coastal Act. Their powers to enact ordinances under article XI,
section 7 of the constitution is limited to those police power
measures which do not conflict with general law such as the
Planning and Zoning Law and the Coastal Act. Thus a county or
city ordinance which would authorize a use of land in the coastal
zone which is not permitted in an LCP or LUP certified by the
Commission is subject to the provisions of section 30,514 whether
it was adopted by the legislative body of the county or city or
by the electorate.
Section 30,514 expressly states that a certified LCP
and all implementing ordinances, regulations and other actions
may be amended by the appropriate local government, however the
effectiveness of such an amendment is made to depend upon
certification by the Commission. This means that a county or
city may adopt such an amendment at any time but such amendment
does not become effective until it has been certified by the
Commission. Such an ordinance before it has been certified by
the Commission is therefore not effective to authorize a use not
permitted by a certified LCP or LUP.
In response to the first question we conclude that a
county or city, by ordinance, including those adopted by
referendum or initiative, may not lawfully authorize a use of
land in the coastal zone which is not permitted by an LCP or LUP
certified by the Commission without approval of the Commission.
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The second question asks whether a county or city may
lawfully prohibit a use of land in the coastal zone which is
permitted by an LCP or LUP certified by the Commission. Section
30,005 provides in part as follows:
"No provision of this division [the Act] is a
limitation on any of the following:
"(a) Except as otherwise limited by state law, on
the power of a city or county or city and county to
adopt and enforce additional regulations, not in
conflict with this act, imposing further conditions,
restrictions, or limitations with respect to any land
or water use or other activity which might adversely
affect the resources of the coastal zone.
". . . . . . . . . . . . . . . . . . . . . . . . ."
Section 30,005 recognizes the power of a county or city
to make additional restrictions on the use of land in the coastal
zone which are not in conflict with the Coastal Act.
Nevertheless, when it does so it is subject to the provisions of
state law, including section 30,514.
It has been suggested that section 30,005 authorizes a
city or county to prohibit a use in the coastal zone which is
authorized by an LCP or LUP certified by the Commission without
approval of the Commission because it would be an additional
regulation imposing further restrictions and limitations on land
use in the coastal zone, and thus would be a local power not
limited by the Act. We reject the suggestion because section
30,005 expressly affects only those local powers which are "not
in conflict with the act". A local prohibition of a use
authorized by a certified LCP or LUP might well be in conflict
with the Act. An example would be local action prohibiting use
of certain beach frontage as a marina when the certified LCP or
LUP authorized use of the same property as a marina. The
Commission might well find that such a prohibition would be in
conflict with section 30,220 through 30,224 of the Act which
require that recreational boating use of coastal waters be
encouraged. Furthermore section 30,005 contains another
limitation, namely the words "[e]xcept as otherwise provided by
state law". We think section 30,514 is a state law which
provides otherwise.
To repeat, section 30,514(a) provides that a certified
LCP, and all local implementing ordinances, regulations, and
other actions (which we have previously concluded include a
certified LUP) "may be amended by the appropriate local
government, but no such amendment shall take effect until it has
been certified by the commission". Thus we must determine
whether local action prohibiting a use permitted by an LCP or LUP
7. 87-405
certified by the Commission is an amendment of the certified LCP
or LUP within the meaning of section 30,514(a) and thus requires
certification by the Commission before it becomes effective. The
word "amendment" as used in section 30,5l4 is not defined except
that subdivision (d) provides that it includes local action
authorizing a use prohibited by a certified LCP. That the
Legislature did not intend that the word "amendment" be confined
to such local action is made clear by the words "but is not
limited to". Such intent is also indicated in the last sentence
of subdivision (c) which provides that amendments which allow
changes in uses shall not be designated for expeditious action.
The ordinary meaning of the word "amendment" as applied to a law
is a revision or change of the law. Action which prohibits what
a law authorizes revises and changes it as much as action
authorizing what a law prohibits. Thus we conclude that local
action which prohibits a use of land in the coastal zone which is
authorized by a certified LCP or LUP "amends" such certified LCP
or LUP within the meaning of section 30,514(a) and therefore does
not become effective until it is certified by the Commission.
We conclude that a city or county may not lawfully
prohibit a use of land in the coastal zone which is permitted by
a LCP or LUP certified by the Commission by ordinance, including
those adopted by referendum or initiative, without approval of
the Commission.
The third question asks whether the Coastal Act's
provisions for approval of amendments to a certified LCP or LUP
by the Commission are applicable to charter cities. Article XI,
section 5(a) of the California Constitution provides:
"It shall be competent in any city charter to
provide that the city governed thereunder may make and
enforce all ordinances and regulations in respect to
municipal affairs, subject only to restrictions and
limitations provided in their several charters and in
respect to other matters they shall be subject to
general laws. City charters adopted pursuant to this
Constitution shall supersede any existing charter, and
with respect to municipal affairs shall supersede all
laws inconsistent therewith."
This constitutional provision was analyzed in Bishop v.
City of San Jose (1969) 1 Cal. 3d 56, particularly with reference
to whether or not a charter city's ordinance regulating a
"municipal affair" would prevail over a conflicting general state
law. The court recognized that a charter city has "autonomy with
respect to all municipal affairs"; however, as to matters of
"statewide concern," charter cities remain subject to and
controlled by applicable general state laws "regardless of the
provisions of their charters, if it is the intent and purpose of
such general laws to occupy the field to the exclusion of
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municipal regulation (the preemption doctrine)." (1 Cal. 3d
at 61-62.)
Section 30,004 of the Act provides in part:
"The Legislature further finds and declares that:
"(a) . . .
"(b) To ensure conformity with the provisions of
this division [the Act], and to provide maximum state
involvement in federal activities allowable under
federal law or regulations or the United States
Constitution which affect California's coastal
resources, to protect regional, state, and national
interests in assuring the maintenance of the long-term
productivity and economic vitality of coastal resources
necessary for the well-being of the people of the
state, and to avoid long-term costs to the public and a
diminished quality of life resulting from the misuse of
coastal resources, to coordinate and integrate the
activities of the many agencies whose activities impact
the coastal zone, and to supplement their activities in
matters not properly within the jurisdiction of any
existing agency, it is necessary to provide for
continued state coastal planning and management through
a state coastal commission."
Whether a measure involves a municipal affair or a
subject of statewide concern is a judicial, not a legislative,
question and no exact definition of the term "municipal affairs"
can be formulated. Bishop v. City of San Jose, supra at pp. 62­
63. Nevertheless, we are convinced that a court would be
persuaded by the legislative finding quoted above that the
subject of requiring local ordinances and actions in the coastal
zone to conform to state coastal planning and management is a
matter of statewide concern and not a municipal affair.
Government Code section 65,803 provides that the
provisions of the state zoning law "shall not apply to a
chartered city, except to the extent that the same may be adopted
by charter or ordinance of the city." The express exemption of
chartered cities from the provisions of the state zoning law does
not mean they are also exempt from the provisions of the Coastal
Act. In fact section 30,109 defines "local government" as used
in the Act to include "any chartered or general law city." Thus
the provision in section 30,514(a) that a certified LCP and other
actions "may be amended by the appropriate local government, but
no such amendment shall take effect until it has been certified
by the commission" applies to chartered as well as general law
cities.
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We conclude that the Act's provisions for approval of
amendments to a certified local coastal or land use plan by the
Commission are applicable to chartered cities.
* * * * *
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