San Diego Unified Port Dist. v. Cal. Coastal Commission ( 2018 )

Filed 9/7/18; Modified and certified for publication 10/1/18 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO UNIFIED PORT DISTRICT, D072954
Plaintiff and Respondent,
v. (Super. Ct. No.
37-2015-00034288-CU-WM-CTL)
CALIFORNIA COASTAL COMMISSION,
Defendant and Appellant,
SUNROAD MARINA PARTNERS, LP,
Real Party in Interest and Respondent.
APPEAL from a postjudgment order of the Superior Court of San Diego County,
Ronald L. Styn, Judge. Reversed and remanded with directions.
Xavier Becerra, Attorney General, Daniel A. Olivas, Assistant Attorney General,
Jamee Jordan Patterson and Hayley Elizabeth Peterson, Deputy Attorneys General, for
Plaintiff and Respondent.
Pacific Legal Foundation and Damien M. Schiff as Amici Curiae on behalf of
Plaintiff and Respondent.
Thomas A. Russell and Rebecca S. Harrington; Jenkins & Hogin and Christi Hogin,
Gregg W. Kettles for Defendant and Appellant.
Nossaman and Steven Harold Kaufmann for Real Party in Interest.
Plaintiff and respondent San Diego Unified Port District (District) unsuccessfully
asked defendant and appellant California Coastal Commission (Commission) to certify
an amendment of District's port master plan (at times, the amendment) to authorize
specified hotel development in the East Harbor Island subarea, including construction of
a 175-room hotel by real party in interest Sunroad Marina Partners, LP (Sunroad).
District filed a petition for peremptory writ of mandate challenging Commission's denial
of certification, and the trial court in January 2017 issued the writ, finding Commission
violated provisions of the California Coastal Act of 1976 (at times the Act; Pub. Res.
Code,1 § 30000 et seq.) and "impermissibly set policy" by setting a maximum rental rate
or fixing an amount certain for room rental rates. Commission did not appeal that ruling,
but reheard District's application and again denied certification, finding the master plan
amendment lacked sufficient specificity to adequately protect lower cost visitor and
public recreational opportunities, including overnight accommodations. On objections by
District and Sunroad, the trial court in August 2017 ruled that Commission had
essentially conditioned its certification on the provision of lower cost overnight
accommodations, which "infring[ed] on the wide discretion afforded to the District to
determine the contents of land use plans and how to implement those plans." The court
1 Undesignated statutory references are to the Public Resources Code.
2
ruled that Commission had acted in excess of its jurisdiction and did not proceed in the
manner required by law.
Commission appeals from the August 2017 postjudgment order. It contends it
complied with the writ, but afterwards in the face of Port's and Sunroad's objections the
trial court expanded the writ's scope, thereby exceeding its jurisdiction. Commission
asks this court to find it complied with the writ as issued, reverse the order sustaining
District and Sunroad's objection, and direct the trial court to discharge the writ.
Commission further contends it properly denied District's proposed amendment on
remand, arguing: (1) substantial evidence supports its finding the proposed amendment
does not conform to the Act's policies; (2) Commission, not District, has the ultimate
authority to decide whether a proposed amendment is consistent with the Act; and (3)
Commission did not set hotel rates in violation of the Act.
In this context, we narrowly review the correctness of the trial court's
postjudgment ruling that Commission exceeded its jurisdiction or acted contrary to law in
denying certification of District's proposed master plan amendment. Doing so, we hold
the court erred by relying in part on provisions of the Act governing a local government's
authority and imposing limits on Commission's jurisdiction with respect to local coastal
programs, which do not pertain to port master plans or master plan amendments. We
further conclude the lower court engaged in an impermissibly broad interpretation of a
provision of the Act barring Commission from modifying a master plan amendment as a
condition of certification. (§ 30714.) We reverse the order and direct the trial court to
discharge the writ of mandate and enter judgment in Commission's favor.
3
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, District submitted to Commission Port Master Plan Amendment No.
PMP-6-PSD-14-003-2 (the amendment) for certain development on the East Harbor
Island subarea. The amendment proposed to revise District's existing master plan, which
had allowed for a single 500-room hotel, to permit development of a 175-room hotel by
Sunroad as well as up to two additional hotels with a total of 325 rooms, for a combined
total of 500 rooms. About a year earlier, District submitted this proposed amendment but
withdrew it after Commission staff recommended Commission deny certification due to
"inconsistency with the public access and recreation policies of the Coastal Act that
protect and encourage lower-cost visitor and public recreational opportunities."
Specifically, Commission staff had observed the proposal did not include any specific
requirement for the provision of lower cost accommodations; it did not "include policy
language that either reserves a portion of this subarea for lower cost hotel units or
identifies an alternative location where such lower cost accommodations will be
developed to which . . . in-lieu fees may apply."2 Commission staff concluded the
proposal did not meet the requirements of section 30213 of the Act, providing in part that
lower cost visitor and recreational facilities "shall be protected, encouraged, and, where
feasible, provided."
2 An "in-lieu fee" generally refers to any fee paid toward mitigating impacts
associated with a particular development. (See, e.g., § 30607.8, subd. (c) [defining an in-
lieu fee for purposes of that section as "any fee paid as a condition for issuance of a
coastal development permit to mitigate impacts associated with the development of lower
cost coastal visitor-serving projects"].)
4
After District resubmitted the amendment in 2015, Commission staff again
recommended denial of certification due to inadequacies with the recreation and lower
cost overnight accommodation policies. Commission staff had offered language to
include in the amendment that would reserve a portion of the subarea's land, as well as a
minimum of 25 percent of the 500 hotel rooms, for lower cost overnight
accommodations, but District decided there was inadequate direction from its board to
incorporate it into the submittal. Instead, District added a paragraph into its final
submittal to address the development of the remaining 325 rooms: "If the District issues
a Request for Proposals (RFP) to develop the one or two hotels (up to 325 rooms) on the
southwesternmost area of Subarea 23 before the District has completed a lower cost
visitor accommodations study, the RFP shall specify that no less than 25 [percent] of the
hotel rooms will be midscale or economy, as defined by Smith Travel Research. The
developer of the midscale or economy hotel rooms shall be required to include amenities
that lower the cost of stay. Examples of amenities that could lower the cost of stay may
include the provision of kitchenettes, refrigerators and/or microwaves in guest rooms, it
could also include provision of complimentary services such as Wi-Fi, continental
breakfast and/or parking. If a hotel is developed at a midscale or economy product, it
need not pay the in-lieu fee identified earlier in this precise plan."
Commission staff determined the language was inadequate: "[I]t is unlikely that
these [midscale or economy] rooms would be what the Commission considers lower cost
overnight accommodations. Based on the Commission's past practice, a lower cost
overnight accommodation in the San Diego region would be one whose rate is below
5
approximately $106. Based on Commission staff's research of other midscale and
economy hotel chains in the vicinity, it is very unlikely that the market rate of new hotel
rooms on the waterfront developed as an economy product—let alone a midscale
product—would fall into this category. In addition, the deletion of in-lieu fees should not
be considered or permitted without detailed criteria and evidence regarding a project's
design to ensure a reduction or deletion in the fee is warranted. In this case, the proposed
language is too general to determine whether the midscale/economy hotel rooms and
amenities would result in accommodations that are truly lower cost, and would allow
build-out of the remainder of the room allocation for the subarea. Full-buildout should
not occur until it has been determined that this subarea is not required to accommodate a
lower-cost hotel and/or a very low cost option, such as a hostel, through use of in-lieu fee
payments and to fulfill the results of [District's] study described below."
According to Commission staff, though District's proposed amendment
acknowledged that the hotel developers must contribute a " 'fair share' " of on-site or off-
site lower cost visitor accommodations or pay an in-lieu fee based on a study District was
to prepare, that study had not been completed, and the "policy language does not
establish or identify the number of lower cost units needed to meet public demand, or the
potential location and timeframe for development of lower cost accommodations
elsewhere within the Port." Commission adopted its staff's findings in its final report. It
denied certification of the amendment.
District petitioned for a writ of mandate (Code Civ. Proc., §§ 1085, 1094.5; Pub.
Res. Code, § 30801) setting out four causes of action, and Sunroad joined in District's
6
supporting arguments. District asked the court to have Commission rescind its decision
and remand District's application to Commission to either hold a new hearing or deem the
amendment certified by operation of law. It asked the court to exercise continuing
jurisdiction over the matter to ensure Commission complied with the writ and the court's
judicial declaration.
In January 2017, the trial court granted the writ as to the second cause of action
seeking to compel Commission to vacate its denial based on violations of the Act, finding
Commission acted " 'without, or in excess of [its] jurisdiction.' " In part, the court stated
it was "not persuaded by the Commission's argument that the Commission did not modify
the [amendment] or require the District to accept any language as a condition of
certification. By designating $106 as the rate for a 'lower cost overnight accommodation'
the Commission set a maximum rental rate and thereby 'fixed an amount certain' for room
rental rates necessary for the District to obtain certification of the [amendment] in
violation of [sections 30213 and 30714]." The court further ruled Commission
"impermissibly set policy" and that, "while [section] 30213 protects, encourages and
prefers 'lower cost visitor and recreational facilities' the Commission lacks the authority
to determine the precise method by which the District should implement [section]
30213's broad policy objective."3
3 For this part of its ruling, the trial court quoted from Yost v. Thomas (1984) 36
Cal.3d 561. Its order states: "Section 30500, subdivision (a) . . . provides that: 'Each
local government lying, in whole or in part within the coastal zone shall prepare a local
coastal program for that portion of the coastal zone within its jurisdiction.' Section
30500, subdivision (c) makes it clear that: 'The precise content of each local coastal
7
District submitted a proposed judgment granting the peremptory writ and a
proposed writ. Commission then objected to the proposed writ on several grounds,
including that in preparing the proposed writ, District had relied on section 30512.2,
which did not apply to port district master plans; District had included unnecessary
language; and District had included a provision going beyond the Court's tentative ruling
and statement of decision. The court sustained several of Commission's objections and
modified the proposed peremptory writ accordingly.
In March 2017, the court entered judgment granting the peremptory writ of
mandate. It issued a writ ordering Commission to vacate its August 2015 action to deny
certification of the amendment and to "[n]otice and conduct a new public hearing in
accordance with applicable regulations and the California Coastal Act during the May
program shall be determined by the local government, consistent with Section 30501, in
full consultation with the commission . . . .' 'The commission shall certify a land use
plan, or any amendments thereto, if such commission finds that a land use plan meets the
requirements of, and is in conformity with, the policies of Chapter 3. . . .' (§ 30512, subd.
(c).) 'The commission's review of a land use plan shall be limited to its administrative
determination that the land use plan . . . does, or does not, conform with the [policies of
the act] . . . the commission is not authorized by any provision of this division to diminish
or abridge the authority of a local government to adopt and establish, by ordinance, the
precise content of its land use plan' (§ 30512.2, subd. (a)). 'The commission may only
reject zoning ordinances, zoning district maps or other implementing actions on the
grounds that they do not conform with, or are inadequate to carry out, the provisions of
the certified land use plan.' (§ 30513.) The wording of these and other sections does not
suggest preemption of local planning by the state, rather they point to local discretion and
autonomy in planning subject to review for conformity to statewide standards. As was
noted in City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 . . . , 'the
Commission in approving or disapproving an LCP does not create or originate any land
use rules and regulations. It can approve or disapprove but it cannot itself draft any part
of the coastal plan.' " The court concluded: "As applied to this case, while [section]
30213 protects, encourages and prefers 'lower cost visitor and recreational facilities' the
Commission lacks the authority to determine the precise method by which the District
should implement [section] 30213's broad policy objective."
8
2017 . . . Commission meeting scheduled to be held in San Diego and, following the
hearing, take action on the [amendment] application, without consideration of a
requirement to provide overnight accommodations at a rate of $106 [per] night, or any
other specific rate, as a means of establishing 'lower cost overnight accommodations.' "
The writ further provided: "Nothing in this writ shall limit or control the discretion
legally vested in you." The court retained jurisdiction over the matter "until such time as
the court has determined that the . . . Commission has complied with this writ by taking
the mandated actions in accordance with the Coastal Act."
On remand, Commission staff sought to reach agreement with District staff
regarding lower cost overnight accommodation provisions but District elected not to
modify its amendment. Additionally, staff reported that District had discontinued its
study on lower cost overnight accommodations, instead passing guidelines that
Commission staff stated lacked specific procedures for protecting, encouraging or
providing for lower cost overnight visitor accommodations within District and delayed
consideration of how such accommodations could be provided. Staff explained: "As
proposed, the [amendment] language acknowledges the hotel developer(s) must
contribute a 'fair-share' of on-site or off-site lower cost visitor accommodations or pay in
in-lieu fee based on a study conducted by the District; however, . . . the study is no longer
being pursued by the Port, so it is unclear how these requirements would be implemented.
In addition, the language proposed in the [amendment] would be similar to that included
in other [amendments] approved by the Commission for other specific hotel project;
however, reliance on this language has not resulted in the actual provision of additional
9
lower cost overnight accommodations within the Port. For example, of the existing 8,035
overnight accommodations within the Port, only 3 [percent] are lower cost (237 RV sites
at Chula Vista RV Resort). There is an increasing need for lower cost overnight
accommodations within the Port in the form of a specific program that will result in units
as opposed to deferred collection of in-lieu fees."4 Further, staff found it unlikely any
new hotel developed as an economy or mid-scale product would be lower cost given the
"prime location" of the subject subarea: "In order for overnight accommodations on East
4 Staff found District had misstated the number of rooms that would be developed
as "midscale or economy" rooms; that only 82 of 325 rooms would be designated for
such development, and District's actual proposal was that any hotel developed as
midscale or economy would not need to pay in-lieu fees. Staff additionally found the
Smith Travel Research definition used by District was unclear; it had not specified which
standard its proposed language was based on and what it meant: "The ambiguity of the
proposed language is confusing and the [proposed master plan] should include more
specifically defined terms. The [amendment] also requires the provision of 'amenities' to
lower the cost of stay, but it does not specify the extent of amenities that would be
required. Thus, these mid-scale rooms could include a microwave and free wifi as
amenities, and still comply with the proposed [amendment]. While [District] may have
intended for its submittal to adequately provide lower cost accommodations at the Port,
as drafted, it could be construed as laid out above, resulting in the construction of only
higher cost rooms. Thus, the proposed [amendment] fails to protect or provide lower cost
overnight accommodations." Staff stated: "The Commission acknowledges that mid-
price hotels may serve as a part of the overall effort to address the need for more
affordable accommodations within the Port because they are typically less costly or are
more reasonably priced for larger groups and families; however, the focus for any future
resumption of the study should be the protection and provision of new lower cost
accommodations that all economic segments of the population can afford to use,
including hostels, tent camping, cabins/yurts, and low cost hotels/motels (e.g., budget
hotels with the lowest average room rates). Thus, any future study should provide a goal
specifically related to providing lower cost accommodations that is distinguishable from
the goal for moderate cost overnight accommodations and include analysis of how this
goal is consistent with the Public Trust Doctrine and the Coastal Act."
10
Harbor Island to be lower cost, and maintained as such, they would need to be a type of
development that is designed in such a manner to be intrinsically lower cost."
Staff stated that while the Act emphasized the need to protect and provide public
access and lower cost visitor and recreational facilities, the proposed amendment "does
not include any specific requirement for the provision of lower cost accommodations on-
site or in the subarea and does not meet the requirements of [s]ection 30213." Nor did it
contain an in-lieu fee for the remaining 325 rooms if developed as mid-scale or economy
to mitigate the loss of public trust lands that could otherwise be used for lower cost
accommodations. Staff stated "that the proposed Port Master Plan amendment, as
submitted, does not conform to the provisions of Section 30711 of the Coastal Act. The
proposed changes in land use do not contain sufficient detail in the [port master plan]
submittal for the Commission to make a determination of the proposed amendment's
consistency with Sections 30210, 30211, and 30213 of the Coastal Act." Staff again
recommended certification be denied in part on grounds the amendment "does not
conform with or carry out the policies of Chapter 3 and Chapter 8 of the Coastal Act."
Commission held a new public hearing, which took place in May 2017. At the
hearing, a District representative agreed to include in the amendment a provision that the
hotel developer pay an in-lieu mitigation fee of $41,020 per room for 25 percent of all
500 hotel rooms and the Port would include in its future master plan update a plan to
address "lower cost facilities including overnight accommodations." Accounting for that
agreement, the commissioners nevertheless unanimously voted to deny certification.
Observing that the current level of low-cost visitor accommodations within District was
11
only about 3 percent, the commissioners urged that Commission, as the trustee of public
trust lands, not accept money in exchange for overnight housing, but instead ensure that
the plan "delineate[ ] numbers of what rooms can be low cost" and "actually provide
overnight accommodations that are affordable for people."
In June 2017, Commission filed a return to the peremptory petition for writ of
mandate, stating that it had denied certification of the amendment. It "found that the
[amendment] does not conform with or carry out the Chapter 3 and Chapter 8 policies of
the Coastal Act." The return further states: "As directed by the Court, the Commission
did not consider a requirement to provide overnight accommodations at a rate of $106
[per] night or any other specific rate." Commission asserted it had fully complied with
the writ issued by the court, and requested that it be discharged.
District objected and moved to set aside Commission's return and again remand
the matter to Commission to comply with the writ. It argued Commission had exceeded
its jurisdiction and violated the Act, as reflected by commentary of some of the
commissioners during the May 2017 hearing, by making a "specific policy of lower cost
overnight accommodations . . . dispositive in voting on [the amendment]." More
specifically, District objected that Commission "demand[ed] a specific policy
(a land set aside for low-cost overnight accommodations over public recreational
facilities) and . . . articulat[ed] how that policy must be carried out (must designate 25
[percent] of new hotel rooms to be provided at lower cost—hostel, yurts, cabins and
camping) . . . ." It characterized Commission's jurisdictional role in reviewing master
plan amendments as "limited" by section 30714, which states that Commission may not
12
modify a plan as submitted as a condition of certification, and section 30512.2, which
prohibited Commission from diminishing or abridging a local government's authority to
"adopt and establish, by ordinance, the precise content of its land use plan." District also
objected that Commission interpreted the writ as merely prohibiting it from mentioning
dollar figures as a technicality; that by its actions Commission engaged in "specific
policy making" and it attempted to indirectly set room rates. Sunroad joined in the
objections and motion.
In August 2017, the trial court sustained the objections of District and Sunroad and
granted the motion to set aside Commission's action. The court found Commission had
satisfied the writ's directive not to consider a requirement to provide overnight
accommodations at a $106 rate or any other specific rate as a means of establishing lower
cost overnight accommodations. However, it ruled that Commission nevertheless acted
in excess of its jurisdiction and did not proceed in the manner required by law when it
again denied certification. In part, the court found Commission was "in essence,
requiring that the [amendment] include a provision for 'lower-cost overnight visitor
servicing accommodations' as a condition of certification" and in that way Commission
"infringe[d] on the wide discretion afforded to the District to determine the contents of
land use plans and how to implement these plans." The court issued another peremptory
writ of mandate, commanding Commission to vacate its May 2017 action denying
certification, to conduct a new public hearing in accordance with applicable regulations
and the Act, and to take action on the amendment application "in compliance with the
13
Coastal Act and consistent with the court's prior rulings in this case." The writ again
provides: "Nothing in this writ shall limit or control the discretion legally vested in you."
Commission filed this appeal from the trial court's August 2017 order after
judgment.5
DISCUSSION
Commission presents two issues: First, it contends the lower court exceeded its
jurisdiction when it found Commission had failed to comply with the writ. According to
Commission, in reaching this ruling, the court enforced portions of the writ it had
previously struck as beyond the scope of its decision in response to Commission's
objections, and thus the court "improperly expanded the scope of the judgment and writ."
5 While this appeal was pending, this court granted an application of the San Diego
Port Tenants Association and Pacific Legal Foundation to file an amicus curiae brief on
behalf of District. Amici contend that in denying certification, Commission imposed a
condition lacking an essential nexus to the impacts of the proposed hotel development,
and thus its action amounts to an unconstitutional exaction under Nollan v. California
Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S.
374. We have considered the amicus brief, as well as Commission's answer to that brief,
in determining the issues presented on appeal. Because Commission did not
conditionally approve certification or otherwise impose a permit condition on private
land (City of Perris v. Stamper (2016) 1 Cal.5th 576, 591), the arguments lack merit.
(See also California Building Industry Assn. v. City of San Jose (2015) 61Cal.4th 435,
461 [municipality's inclusionary housing ordinance was not an exaction as it did not
require the developer to dedicate any portion of its property to the public or pay any
money to the public].) They are not ripe in any event. (Sierra Club v. California Coastal
Commission (1993) 12 Cal.App.4th 602, 618 [takings decisions must await as-applied
challenges and are usually not ripe until the permit stage; regulatory takings claims
generally require final administrative action as to specific land]; see Gherini v. California
Coastal Commission (1988) 204 Cal.App.3d 699, 713 [mere adoption of a general plan
does not constitute a taking; enactment of a zoning regulation or land use plan not
sufficiently definite or final to support such a claim].)
14
Commission relies on Craven v. Crout (1985) 163 Cal.App.3d 779, holding a court loses
power to change a previously-entered judgment. Commission maintains that if we find it
complied with the writ "as issued," we should reverse the order and direct the trial court
to discharge the writ.
Second, Commission contends it properly denied certification of the amendment
on remand. It maintains substantial evidence supports its decision that the amendment
does not conform to the Act's Chapter 3 policies, including section 30213, and
specifically its finding that the amendment lacked sufficient specificity to adequately
protect, encourage or provide lower cost visitor and public recreational facilities,
including lower cost overnight accommodations, and was inconsistent with the public
access and recreation policies of the Act. Commission maintains it is its role, not
District's, to exercise discretion to determine whether an amendment meets the Act's
standards, based on cases such as City of Chula Vista v. Superior Court (1982) 133
Cal.App.3d 472 (City of Chula Vista) and City of Malibu v. California Coastal
Commission (2004) 121 Cal.App.4th 989, which hold Commission may use its
independent judgment and expertise to implement the Act's policies.
Because Commission's latter points have merit, we do not reach its contentions
regarding the trial court's asserted overreach in jurisdiction. (See Burke v. California
Coastal Commission (2008) 168 Cal.App.4th 1098, 1109.)
I. Standard of Review
The parties dispute in some respects the pertinent standard of review.
Commission argues the question at hand is not whether the trial court erred but whether
15
substantial evidence supports its decision on remand to deny certification. Citing Ross v.
California Coastal Commission (2011) 199 Cal.App.4th 900, it argues this court
undertakes the same role as that of the trial court: to examine the entire record, and
presume Commission's decision is supported by substantial evidence unless District or
Sunroad show there is no support for its findings. Commission maintains we may reverse
only if a reasonable person would not have reached the conclusions made by it based on
the evidence before it. Further, Commission maintains this court must defer, and give
great weight, to its interpretation of the controlling statutes and regulations.
District and Sunroad point out that because Commission did not appeal from the
court's January 2017 decision to grant the writ, it has waived its right to appeal from that
judgment or the writ's directives. (Los Angeles Internat. Charter High School v. Los
Angeles Unified School District (2012) 209 Cal.App.4th 1348, 1354.) They are correct
that the validity of the first March 2017 writ is not before us. (Brown v. California
Unemployment Insurance Appeals Board (2018) 20 Cal.App.5th 1107, 1114; City of
Carmel-by-the-Sea v. Board of Supervisors of Monterey County (1982) 137 Cal.App.3d
964, 970-971.) But following Commission's return and the hearing on respondents'
objections, the trial court issued the same directive in a new writ: to take action on
District's master plan amendment application "in compliance with the Coastal Act . . . ."6
The court's order following the hearing into the adequacy of Commission's return on the
6 It also directed Commission to act "consistent with the court's prior rulings in this
case." But the court found Commission had complied with its directive not to consider
specific rental rates.
16
writ is appealable as an order enforcing the judgment. (Los Angeles Internat. Charter
High School v. Los Angeles Unified School District, at pp. 1354-1355.)
Thus, in these proceedings we review the trial court's order under section 1097 of
the Code of Civil Procedure, which permits the court to "make any orders necessary and
proper for the complete enforcement of the writ." (Code Civ. Proc., § 1097.) The
question on appeal is whether the trial court erred by concluding Commission had failed
to comply with the writ in denying certification of District's amendment. (See Brown v.
California Unemployment Insurance Appeals Board, supra, 20 Cal.App.5th at p. 1114;
Robles v. Employment Development Department (2015) 236 Cal.App.4th 530, 546; Los
Angeles Internat. Charter High School v. Los Angeles Unified School District, supra, 209
Cal.App.4th 1355; City of Carmel-by-the-Sea v. Board of Supervisors of Monterey
County, supra, 137 Cal.App.3d 964, 971-971.) Our focus is still on Commission's
response to the writ and the trial court's assessment of that response. (Robles, at p. 546;
City of Carmel, at p. 972.) The analysis necessarily entails an inquiry into whether
Commission's decision has evidentiary support (Los Angeles Internat. Charter High
School, at p. 1355 [involving an appeal from an order discharging a writ; appellate court
"will uphold the [District's facilities] decision unless it is devoid of evidentiary support"])
and, as District appears to acknowledge, also an inquiry into whether the trial court
correctly concluded that Commission had again exceeded its jurisdiction or otherwise did
not proceed in a manner required by law. We reject District's contention that
Commission waived its right to raise issues concerning its statutory jurisdiction under the
Act by failing to appeal from the March 2017 judgment.
17
" 'When the determination of an agency's jurisdiction involves a question of
statutory interpretation, "the issue of whether the agency proceeded in excess of its
jurisdiction is a question of law." ' " (Citizens v. A Better Eureka v. California Coastal
Commission (2011) 196 Cal.App.4th 1577, 1583.) " '[C]ourts do not defer to an agency's
determination when deciding whether the agency's action lies within the scope of
authority delegated to it by the Legislature.' " (Ibid., quoting Burke v. California Coastal
Commission, supra, 168 Cal.App.4th at p. 1106; Security National Guaranty, Inc. v.
California Coastal Commission (2008) 159 Cal.App.4th 402, 414.) Throughout this
analysis, we consider issues of statutory interpretation de novo. (Brown v. California
Unemployment Insurance Appeals Board, supra, 20 Cal.App.5th at p. 1114; Robles v.
Employment Development Department, supra, 236 Cal.App.4th at p. 546; City of Dana
Point v. California Coastal Commission (2013) 217 Cal.App.4th 170, 187.)
II. The Coastal Act and Port Master Plans
The Coastal Act is a " 'comprehensive scheme to govern land use planning for the
entire coastal zone of California.' " (Pacific Palisades Bowl Mobile Estates, LLC v. City
of Los Angeles (2012) 55 Cal.4th 783, 793; Yost v. Thomas (1984) 36 Cal.3d 561, 565.)
It is "beyond dispute that California has a legitimate interest in protecting and
maintaining its beaches as recreational resources." (Ocean Harbor House Homeowners
Association v. California Coastal Commission (2008) 163 Cal.App.4th 215, 231.)
Accordingly, a core principle of the Act is to maximize public access to and along the
coast as well as recreational opportunities in the coastal zone. (§ 30001.5, subd. (c); Yost,
at pp. 565-566; City of Dana Point v. California Coastal Commission, supra, 217
18
Cal.App.4th at p. 185; Ocean Harbor House, at p. 231; LT-WR, L.L.C. v. California
Coastal Commission (2007) 151 Cal.App.4th 427, 806.) The Legislature further "sought
to '[a]ssure orderly, balanced utilization and conservation of coastal zone resources taking
into account the social and economic needs of the people of the state.' " (Carstens v.
California Coastal Commission (1986) 182 Cal.App.3d 277, 290, quoting § 30001.5,
subd. (b).) Underlying the Act's goals are the Legislature's findings that " ' "the
California coastal zone is a distinct and valuable natural resource of vital and enduring
interest to all the people"; that "the permanent protection of the state's natural and scenic
resources is a paramount concern"; that "it is necessary to protect the ecological balance
of the coastal zone"; and that "existing developed uses, and future developments that are
carefully planned and developed consistent with the policies of this division, are essential
to the economic and social well-being of the people of this state . . . ." ' " (Pacific
Palisades Bowl Mobile Estates, at p. 793.) The Commission is to resolve conflicts in the
Act's policies "in a manner which on balance is the most protective of significant coastal
resources." (§ 30007.5; Carstens, at p. 290.)
The Act "shall be liberally construed to accomplish its purposes and objectives."
(§ 30009; Sierra Club v. California Coastal Commission (2005) 35 Cal.4th 839, 849
(Sierra Club); Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles, supra,
55 Cal.4th at pp. 793-794; Burke v. California Coastal Commission, supra, 168
Cal.App.4th at p. 1108) and "any exception to the statute's main purpose must be strictly
construed." (Burke, at p. 1108.) Commission, "unless specifically otherwise provided,
shall have the primary responsibility for the implementation" of the Act's provisions and
19
"is designated as the state coastal zone planning and management agency for any and all
purposes . . . ." (§ 30330; see Marine Forests Soc. v. California Coastal Commission
(2005) 36 Cal.4th 1, 20.) Thus, "[t]he Commission has the ultimate authority to ensure
that coastal development conforms to the policies embodied in the state's Coastal Act."
(City of Dana Point v. California Coastal Commission, supra, 217 Cal.App.4th at
p. 186.) And, a " 'fundamental purpose of the Coastal Act is to ensure that state policies
prevail over the concerns of local government.' " (Pacific Palisades Bowl Mobile
Estates, at p. 794; City of Dana Point, at p. 186.)
Chapter 3 of the Act sets out coastal resources planning and management policies,
which "shall constitute the standards by which the . . . permissibility of proposed
developments subject to the provisions of this division are determined." (§ 30200; see
Sierra Club, supra, 35 Cal.4th at p. 849.) One such policy is that "maximum access . . .
and recreational opportunities shall be provided for all the people consistent with . . . the
need to protect public rights, rights of private property owners, and natural resource areas
from overuse." (§ 30210.) "Development shall not interfere with the public's right of
access to the sea where acquired through use or legislative authorization . . . ." (§ 30211.)
Chapter 3 also includes section 30213, at issue here, which provides: "Lower cost
visitor and recreational facilities shall be protected, encouraged, and, where feasible,
provided. Developments providing public recreational opportunities are preferred." That
section further states: "The commission shall not (1) require that overnight room rentals
be fixed at an amount certain for any privately owned and operated hotel, motel or other
similar visitor-serving facility located on either public or private lands; or (2) establish or
20
approve any method for the identification of low or moderate income persons for the
purpose of determining eligibility for overnight room rentals in any such facilities."
(§ 30213.)7 "The use of private lands suitable for visitor-serving commercial recreational
facilities designed to enhance public opportunities for coastal recreation shall have
priority over private residential, general industrial, or general commercial development,
but not over agriculture or coastal-dependent industry." (§ 30222.)
7 Sunroad has moved in this court for judicial notice of a 2016 minute order in an
unrelated case, San Diego Navy Broadway Complex Coalition v. San Diego Unified Port
District (Sunroad) (Super. Ct. S.D. County, 2016, No. 37-2014-00009407-CU-TT-CTL),
in which another San Diego Superior Court judge rejected a challenge to District's
decision to certify an environmental impact report (EIR) for the same master plan
amendment. Sunroad argues this decision is relevant to the procedural history of
District's master plan amendment at issue, the length of time the amendment has been
pending unresolved and efforts of respondents to complete the CEQA and administrative
process. Sunroad states its counsel made reference to this decision in discussing the
legislative history of section 30213 of the Act at the July 2014 hearing before
Commission on the amendment, but that the findings were not included in the
administrative record. Sunroad's arguments concerning the 2016 minute order related to
the EIR do not convince us that the San Diego Navy Broadway Complex Coalition order
is relevant to whether the trial judge in this case correctly decided Commission either
exceeded its jurisdiction or acted in a manner contrary to law in connection with its 2017
decision to again deny certification of the amendment. Sunroad also asks this court to
judicially notice 1981 revised findings of Commission in approving a 300-unit hotel in
Marina Del Ray. But Sunroad does not establish that these Commission findings are in
fact included within the legislative history of section 30214, that is, that they were
matters available to and presumably reviewed by the Legislature when adoption of those
statutes was under consideration. (See Quelimane Co. v. Stewart Title Guaranty Co.
(1998) 19 Cal.4th 26, 45, fn. 9.) Even if it did, it has not argued the statute's words are
ambiguous or unclear such that extrinsic aids to interpretation are necessary. (Burden v.
Snowden (1992) 2 Cal.4th 556, 562; Huff v. Securitas Security Services USA, Inc. (2018)
23 Cal.App.5th 745, 507-508 [court is precluded from considering legislative history
where statutory language is unambiguous]; Breslin v. City and County of San Francisco
(2007) 146 Cal.App.4th 1064, 1979.) We deny Sunroad's request.
21
The Act's public access policies "shall be implemented in a manner that takes into
account the need to regulate the time, place, and manner of public access depending on
the facts and circumstances in each case . . . ." (§ 30214. subd. (a), italics added.) This
implementation provision, section 30214, contains an express declaration of legislative
intent: "It is the intent of the Legislature that the public access policies of this article be
carried out in a reasonable manner that considers the equities and that balances the rights
of the individual property owner with the public's constitutional right of access pursuant
to Section 4 of Article X of the California Constitution. Nothing in this section or any
amendment thereto shall be construed as a limitation on the rights guaranteed to the
public under [the aforementioned constitutional provision]." (§ 30214, subd. (b).)8 It
further specifies mandatory considerations for Commission's implementation authority:
"In carrying out the public access policies of this article, the commission and any other
responsible public agency shall consider and encourage the utilization of innovative
access management techniques . . . . " (§ 30214, subd. (c).)
Chapter 8 of the Act governs California ports and port district master plans.
(§§ 30700, 30711.) Section 30708 provides: "All port-related developments shall be
located, designed, and constructed so as to: . . . Provide for other beneficial uses
8 Article X, section 4 of the California Constitution provides: "No individual,
partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor,
bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the
right of way to such water whenever it is required for any public purpose, nor to destroy
or obstruct the free navigation of such water; and the Legislature shall enact such laws as
will give the most liberal construction to this provision, so that access to the navigable
waters of this State shall be always attainable for the people thereof."
22
consistent with the public trust, including, but not limited to, recreation . . . , to the extent
feasible." (§ 30708, subd. (d).) Each port governing body must prepare and adopt a port
master plan with public participation and submit it for certification by Commission.
(§§ 30711, 30712, 30714.) The port master plan must describe development projects
subject to section 30715 "in sufficient detail to be able to determine their consistency
with the policies of Chapter 3 . . . ." (§ 30711, subd. (a)(4).) The plan also "shall contain
information in sufficient detail to allow the commission to determine its adequacy and
conformity with the applicable policies of this division." (§ 30711, subd. (b).) Port
master plan amendments are submitted and processed for certification in the same
manner as the original master plan. (§ 30716, subd. (a).)9
When a port governing body submits a plan amendment for certification,
Commission within 90 days "shall certify the plan or portion of a plan and reject any
portion of a plan which is not certified" and it "may not modify the plan as submitted as a
condition of certification." (§ 30714.) If Commission rejects a plan, it must base the
rejection on written findings of fact and conclusions of law. (Ibid.) If it takes no action
within 90 days, the plan is deemed certified. (Ibid.) "The commission shall certify the
plan, or portion of a plan, if the commission finds both of the following: [¶] (a) The
9 "The commission shall approve a port master plan only if the commission finds
that sufficient information has been submitted to allow the commission to determine the
adequacy and conformity of the proposed plan(s) with the applicable policies of the
California Coastal Act of 1976, pursuant to the requirements of Public Resources Code,
Section 30711 and of Section 13625 of these regulations, and that the master plan fulfills
the requirements of . . . Section 30714(a) and (b)." (Cal. Code Regs., tit. 14, § 13632,
subd. (d).)
23
master plan, or certified portions thereof, conforms with and carries out the policies of
this chapter. [¶] (b) Where a master plan, or certified portions thereof, provide for any of
the developments listed as appealable in Section 30715, the development or
developments are in conformity with all of the policies of Chapter 3 . . . ." (Ibid.) Once
Commission certifies a master plan, the Act delegates authority over coastal development
permits for new development to the appropriate port governing body, except that
approvals of certain development may be appealed to Commission. (§ 30715, subd. (a).)
The Act grants appellate jurisdiction to Commission over port district approvals of
hotel and motel development in connection with a port district master plan or master plan
amendments. (§ 30715.) The port district governing bodies "shall inform and advise the
commission in the planning and design of appealable developments authorized" under
Chapter 8, and notify Commission as to how a proposed hotel or motel development is
"consistent with the applicable port master plan and this division." (§ 30717.)
Thereafter, a port district's approval of such a development becomes effective unless an
appeal is filed with Commission within a short time period. (Ibid.)
III. The Court Erred by Relying on Standards Relating to Local Coastal Programs and
the Discretion Accorded Local Governments in Establishing, Creating and Implementing
Land Use Plans
We first address a main premise of the trial court's conclusion that Commission
exceeded its jurisdiction and failed to proceed in a manner required by law. District and
Sunroad have adopted much of the court's underlying reasoning on appeal. Citing Yost v.
Thomas, supra, 36 Cal.3d 561, City of Malibu v. California Coastal Commission (2012)
24
206 Cal.App.4th 549 and Schneider v. California Coastal Commission (2006) 140
Cal.App.4th 1339, the trial court found Commission had imposed conditions on District
for certification, and thereby "infringe[d] on the wide discretion afforded to the District to
determine the contents of land use plans and how to implement these plans."
None of the cited cases, however, involve a port district's authority; all deal with a
local coastal program (LCP), which the Act requires every "local government" within the
coastal zone to prepare. (§ 30500; Yost v. Thomas, supra, 36 Cal.3d at p. 567 [city of
Santa Barbara]; City of Malibu v. California Coastal Commission, supra, 206
Cal.App.4th at pp. 552, 554 [Malibu]; Schneider v. California Coastal Commission,
supra, 140 Cal.App.4th at pp. 1342, 1346 [county of San Luis Obispo].) A "local
government," is specifically defined by the Act as a "chartered or general law city,
charter or general law county, or any city and county." (§ 30109.) The California
Supreme Court in Yost v. Thomas did not address the scope of Commission's authority in
the port master plan context; it held the Act did not preclude a referendum on a city
council's approval of a hotel conference center development (a general plan amendment,
specific plan, rezoning, parking modifications and a development plan sought by the
respondent, a private corporation) within the coastal zone. (Yost v. Thomas, at pp. 564,
565, 567, 569.) The city was acting under the land use plan portion of its LCP that had
been approved by Commission. (Id. at p. 564.) Though the high court held the city
council's actions were legislative (id. at p. 570), the respondent argued the acts became
administrative because the land was in a coastal zone subject to the Act's requirement that
local governments develop land use plans, and thus the city council became an agency of
25
the state in enacting all land use policies. (Id. at p. 571.) The high court rejected that
argument, basing its ruling on the Act's provisions governing LCP's (§§ 30500, subds.
(a), (c), 30512, subd. (c), 30512.2, subd. (a), 3051310) granting discretion to local
governments: "Under the act, local governments . . . have discretion to zone one piece of
land to fit any of the acceptable uses under the policies of the act, but they also have the
discretion to be more restrictive than the act. The Coastal Act sets minimum standards
and policies with which local governments within the coastal zone must comply; it does
not mandate the action to be taken by a local government in implementing local land use
controls. The Commission performs a judicial function when it reviews a local
government's LCP—it determines whether the LCP meets the minimum standards of the
act [citation], but once an LCP has been approved by the Commission, a local
government has discretion to choose what action to take to implement its LCP: it can
decide to be more restrictive with respect to any parcel of land, provided such restrictions
do not conflict with the act. [¶] The act, therefore, leaves wide discretion to a local
government not only to determine the contents of its land use plans, but to choose how to
implement these plans. Under such circumstances a city is acting legislatively and its
actions are subject to the normal referendum procedure." (Yost, at pp. 572-573, fn.
omitted.) "Yost [v. Thomas] stands for nothing more than that a city's actions in
implementing the LCP retain their legislative nature for the purposes of referendum.
That does not mean that, once the LCP is certified, it becomes a matter of local law. The
10 See footnote 3, ante.
26
city's actions in implementing the LCP, as well as any coastal development permit issued
by the city, are still subject to Commission review." (Charles A. Pratt Construction Co.,
Inc. v. California Coastal Commission (2008) 162 Cal.App.4th 1068, 1076.)
In City of Malibu v. California Coastal Commission, the appellate court held
Commission had acted in excess of its jurisdiction by approving amendments to a city's
certified LCP that had been proposed by a state conservancy authority over the city's
objection. (City of Malibu v. California Coastal Commission, supra, 206 Cal.App.4th at
p. 552.) Commission sought to authorize its action under section 30515, providing that
Commission could override a city's refusal to amend its LCP but only where the
amendment was sought for "the development of a public works project or energy facility
that would meet the public needs of an area greater than that encompassed in the local
coastal program that were not anticipated when the LCP was certified." (City of
Malibu, at p. 564.) The appellate court observed the conservancy's amendment sought to
override the city's local land use plans and policies, and substitute new ones so that it
could avoid having to ask Commission for coastal development permits. (Id. at pp. 559-
560.) It held Commission's action contradicted the express legislative limitation in
section 30512.2, subdivision (a) preventing it from " 'diminish[ing] or abridge[ing] the
authority of a local government' as to 'the precise content of its land use plan.' " (Id. at
p. 564.)
In Schneider v. California Coastal Commission, the appellate court addressed
Commission's decision to impose special conditions on a coastal development permit, in
part based on a finding the proposed development would be visible from the ocean.
27
(Schneider v. California Coastal Commission, supra, 140 Cal.App.4th at pp. 1342.) The
court pointed out that after Commission certifies an LCP, development review authority
is delegated to the local government (id. at p. 1344, citing in part § 30519, subd. (a)), and
that on review of a development permit Commission's jurisdiction is limited to deciding
whether the locally approved development does not conform to the standards of a
certified LCP or the Act's access policies. (Id. at pp. 1344-1345.) It held Commission in
construing the relevant provision of the Act (§ 30251) had added words (id. at p. 1345),
and its adoption of an unwritten policy for the County of San Luis Obispo to protect
scenic views from offshore, ocean-based vantage points was unsupported by either the
language of the Act or the county's LCP. (Id. at p. 1348.) Citing Yost v. Thomas, supra,
36 Cal.3d at p. 572 and City of Chula Vista, supra, 133 Cal.App.3d at p. 488, the court
stated: "When Coastal Commission certified the LCP in 1988, it lacked authority ' "to
create or originate any land use rules and regulations" ' or draft any part of the coastal
plan. [Citations.] In reviewing the proposed development to determine whether it was
consistent with the certified LCP, Coastal Commission was not empowered to adopt a
new offshore visual resource policy for San Luis Obispo County. [Citation.]
'Administrative action that is not authorized by, or is inconsistent with, acts of the
Legislature is void.' " (Schneider v. California Coastal Commission, 140 Cal.App.4th at
p. 1348.)
The broad land-use implementation and policy-making jurisdiction discussed in
these cases is that granted to a specified city or county; the Act requires only a local
government entity within the coastal zone to prepare an LCP, with an accompanying land
28
use plan and implementing ordinances. (Landgate, Inc. v. California Coastal
Commission (1998) 17 Cal.4th 1006, 1010-1011.) Though District is an independent
governmental entity existing under state law (Rider v. City of San Diego (1998) 18
Cal.4th 1035, 1039-1040), neither District nor Sunroad cite authority for the proposition
that it falls within the specifically defined category of a local government such that the
limitations on Commission's authority with respect to LCP's apply. The provisions
governing LCP's and the express limits imposed on Commission's jurisdiction with
regard to development under an LCP—prohibiting Commission from determining the
"precise content" of a land use plan (§§ 30500, subd. (c); 30512.2, subd. (a)), creating
land use regulations, or drafting coastal plans (City of Chula Vista, supra, 133
Cal.App.3d 472, 488)—have no application to District, or District's master plan, which is
governed by a different statutory scheme within the Act. We decline to rewrite the law
so as to extend those statutory restrictions on Commission's jurisdiction over LCP's to
port district master plans governed by Chapter 8 of the Act.
On appeal, District cites the LCP-related authorities (Yost v. Thomas, supra, 36
Cal.3d 561; City of Malibu v. California Coastal Commission, supra, 206 Cal.App.4th
549) to argue that Commission lacks authority under the Act to require lower cost
overnight accommodations in connection with its proposed master plan amendment.
District seeks to extend these authorities to it as a "legislative body" so as to show it has
wide discretion to formulate "land use plans like the port master plan" and to " 'determine
how to implement' certified plans. At the same time, District appears to concede that the
provisions governing LCP's do not apply to it; it maintains it brought the LCP-related
29
limitations on Commission's authority to the trial court's attention only "to reinforce the
non-legislative role of this executive branch agency." District contends, however, that
the provisions of the Act related to port master plans and master plan amendments
impose greater constraints on Commission's discretion and authority than do the Act's
provisions for LCP's; it argues Commission is making merely "semantic" distinctions
between the LCP limitations on Commission's role and port master plan limitations.
According to District, section 30714 of the Act "expressly prohibits [Commission]
engaging in developing policy suggestions to port master plans" and from requiring
District to provide low cost overnight accommodations. As we explain more fully below,
we disagree with District's characterization or interpretation of the master plan provisions
of the Act and the extent of the limits on Commission's jurisdiction or authority in
implementing the Act and its policies.
Sunroad, for its part, argues Commission in reconsidering District's proposed
amendment "did exactly the same thing" that the trial court in January 2017 found
improper. That is, Sunroad argues, Commission assertedly "sought to regulate rental
rates anyway through the backdoor, in violation of [s]ection 30213 and the court's ruling,
when it found . . . that the [amendment] failed to provide 'intrinsically lower cost'
accommodations such as 'hostels, tent camping, cabins/yurts, and low cost hotels/motels
(e.g. budget hotels with the lowest average room rates.[)]' " Sunroad argues Commission
merely used a euphemism for describing accommodations expected to charge less than
$106 per night, and was an act by Commission that " 'impermissibly set policy . . . .' "
30
The trial court in assessing Commission's compliance with the writ, however,
determined that Commission had not impermissibly set room rates, but had complied
with the writ's directive not to do so. Narrowly interpreting the statutory exceptions to
Commission's broad authority as we must (Pacific Palisades Bowl Mobile Estates, LLC
v. City of Los Angeles, supra, 55 Cal.4th at p. 796; Citizens For A Better Eureka v.
California Coastal Commission, supra, 196 Cal.App.4th at p. 1586), we agree with the
court's reasoning. Nothing in Commission's findings required District to set or fix
overnight room rental rates "at an amount certain." (§ 30213, italics added.) That
Commission identified various types of lower cost accommodations—hostels, tent
camping, cabin or yurts, and budget hotels or motels—or used parameters in determining
what constitutes a lower cost product, does not violate the prohibition in section 30213
against setting specific monetary rates. A conclusion otherwise would read the words "at
an amount certain" out of the statute and render them meaningless, an untenable
construction. (Varshock v. Department of Forestry & Fire Protection (2011) 194
Cal.App.4th 635, 643, fn. 4 ["Under established rules of statutory construction, we may
not 'omit what has been inserted' [citation] or 'render[] a part of a statute meaningless or
inoperative' "]; Trackman v. Kenney (2010) 187 Cal.App.4th 175, 184.) There is no basis
to disturb that aspect of the court's ruling.11
11 No party has claimed that Commission sought to "establish or approve any method
for the identification of low or moderate income persons for the purpose of determining
eligibility for overnight room rentals in any [hotel, motel, or other similar visitor-serving
facility]" in violation of section 30213.
31
As for Sunroad's complaint that Commission erred by setting policy, that argument
echoes the trial court's erroneous reasoning and those arguments made in the
aforementioned cases pertaining to LCP's, in which appellate courts would not permit
Commission to usurp the land-use and policy-making functions of cities and counties.
(E.g., City of Malibu v. California Coastal Commission, supra, 206 Cal.App.4th at p. 564
["The Conservancy's overlay district . . . substitutes the land use policies and
development standards of the Conservancy and the . . . Commission for those of the city,
in contradiction of the legislative mandate preventing the . . . Commission from
'diminish[ing] or abridg[ing] the authority of a local government' as to 'the precise
content of its land use plan.' (§ 30512.2, subd. (a).)"].)
IV. Commission Did Not Exceed its Jurisdiction in Denying Certification
The narrow question at hand is whether the trial court correctly found Commission
had exceeded its jurisdiction or otherwise acted contrary to law in denying certification
on the grounds stated. As indicated, though we review the correctness of the court's
reasoning, we address de novo the question of whether Commission's decision was within
its authority or jurisdiction under the Act.
In answering this question, we give an "expansive interpretation" (Pacific
Palisades Bowl Mobile Estates, LLC v. City of Los Angeles, supra, 55 Cal.4th at p. 796)
to the Act's public access provisions, and strictly or narrowly construe exceptions to the
Act's main purposes. (Accord, ibid.; Citizens For A Better Eureka v. California Coastal
Commission, supra, 196 Cal.App.4th at p. 1586.)
32
A. The Act's Master Plan Provisions Do Not Prohibit Commission from Determining the
Scope and Extent of Coastal Policy When Reviewing a Port Master Plan Amendment's
Consistency with Those Policies
This court has previously recognized Commission's broad mandate under the Act
relating to planned development and other uses within the coastal zone. (City of Chula
Vista, supra, 133 Cal.App.3d at p. 481 ["Clearly, the statutory mandate is a large
order"].) In City of Chula Vista, we explained in the context of Commission's review of a
city's LCP that Commission "insure[s] continued state coastal planning and management"
(id. at p. 480) and achieves the Legislature's goals by providing "statewide supervision
over coastal zone development, to avoid local pressures having an undue impact upon the
planning for this unique and irreplaceable resource . . . ." (Id. at p. 481.) In view of the
broad legislative goals of the Act (§ 30001.5), Commission's role is to "promulgate[]
statewide rules and statewide policies," not merely to act as a "rubber stamp agency" with
respect to local planning. (Id. at p. 489.) It does this as the statewide entity primarily
responsible for implementing the Act and promoting its policies, ensuring they are
furthered and carried out. (Ibid.) This court pointed out Commission exercises its
independent judgment on the issue of a local entity's compliance with coastal policy.
(Ibid.; see Gherini v. California Coastal Commission, supra, 204 Cal.App.3d at pp. 709-
710.)12 Commission's broad supervisory role in implementing statewide coastal policy
12 In City of Chula Vista, we addressed a city's argument that Commission had no
legislative power with respect to its review of an LCP for conformity with statewide
standards, and therefore could decide only whether the city's action was arbitrary and
33
is particularly important when dealing with a port master plan, the purpose of which is to
guide future uses and development within the port district. A master plan is precisely the
sort of tool that requires Commission's input and expertise for enforcing and furthering
coastal policies, including those dealing with public access and lower cost visitor
facilities.
capricious. (City of Chula Vista, supra, 133 Cal.App.3d at p. 488.) We declined to find
the scope of Commission's power dictated by the fact local entities were charged with the
primary land planning function: "The fact City is the first agency to work on the plan is
not determinative of the scope of Commission's powers. . . . Local government is to be
included, but statewide standards are to be formulated; local government plans, but a
statewide commission reviews. Surely the Legislature did not go to all this trouble to
create a statewide rubber stamp agency which does no more than review local legislation
for arbitrary and capricious enactments. Rather, it is assumed statewide interests are not
always well represented at the local level, and therefore, an agency is needed which
promulgates statewide rules and statewide policies." (Id. at p. 489.) We rejected the
city's argument that Commission may not exercise its independent judgment in reviewing
an LCP. (Id. at p. 489.) We explained that the fact a city is the first agency to work on
an LCP "does not preclude the Commission also having coordinate powers at a later stage
in the procedure" and "is not determinative of the scope of Commission's powers." (Id. at
pp. 488, 489.) We explained in that context that "the entire scheme of the Act provides
for the initial planning to be done locally and the final approval to be done by a statewide
agency with an eye to statewide policies and limitations. The function of the statewide
agency would be trivial and its existence unjustifiable if its function were purely to
review City's action for rationality, for conceivable conformity to the state standards
rather than actual compliance. Clearly, the Commission must exercise its independent
judgment to decide if such conformity has been achieved because that decision cannot
be completely delegated to the local entity where it is likely to be subject to local
economic and political pressures which cannot so readily influence the Commission."
(Id. at p. 489, italics added.) If Commission is empowered to exercise its independent
judgment in the context of an LCP with the attendant limitations on its power to dictate
precise land use policies, then certainly Commission may exercise its independent
judgment with respect to a port master plan, where its powers with regard to development
policy are not so limited. District argues that City of Chula Vista merely holds that
Commission is relegated to a quasi-judicial function in reviewing consistency with the
Act, but this is an overly narrow characterization of its holding.
34
District sees Commission's jurisdiction differently. It characterizes Commission
as having a limited statutory role in certifying master plans. District argues the Coastal
Act is structured so that "precise policy" originates with a legislative body; that District is
charged with creating the policies to implement the Act whereas Commission is an
executive branch agency charged only with verifying consistency with the plan and the
Act. According to District, section 30714 of the Act "expressly prohibits [Commission
from] engaging in developing policy suggestions to port master plans." District
challenges Commission's power to articulate how District should carry out the Act's
public access policies, arguing Commission lacks authority to "originate policy," require
or dictate specific policies and policy choices, or engage in "policymaking." District
argues "[t]he California Legislature put the Port District—not Commission—in charge of
figuring out how to achieve the Port Act's [sic] mission and advance the policies of the
Coastal Act." The latter contention is asserted without citation to authority, and on that
ground alone we do not consider it. (In re Michael A. (2012) 209 Cal.App.4th 661, 668;
Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001, fn. 2; Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
District's other contentions are a variation of the same erroneous reasoning of the
trial court premised on express statutory limits on Commission's authority with respect to
a local government's LCP. And District's arguments are not supported by section 30714,
which, unlike the LCP provisions of the Act, says nothing about Commission's ability to
dictate or suggest the type of visitor facilities and alternatives that would comply with
coastal policy. Under the trial court's reasoning, when Commission determined that
35
coastal policy required District to actually provide lower cost overnight accommodations
in its master plan amendment and identified the sorts of development meeting that
standard, Commission modified the plan as a condition of certification in violation of
section 30714. But such a conclusion is based on an impermissibly broad reading of the
limit placed on Commission in section 30714, providing it "may not modify the [master]
plan as submitted as a condition of certification." Strictly construing that limitation as we
must, section 30714 prohibits Commission only from conditionally approving a master
plan, that is, granting certification subject to a specified modification. To conclude
otherwise would prevent Commission from denying certification of a master plan with
specific factual and legal findings as to its deficiencies or suggestions for compliance, as
any such decision would be construed as an unacceptable conditional approval or
modification of the plan in violation of section 30714. Commission did not conditionally
approve certification, but denied it on grounds the proposed amendment did not further
the Act's public access policies or contain sufficient specificity or detail to permit it to
find it complied with those policies, including the Act's mandate that "lower cost visitor .
. . facilities shall be . . . provided." (§ 30213, italics added.) Commission's suggestions
as to how District could meet that mandate did not tell District to amend its plan in any
particular way. In denying certification, Commission expressly acknowledged that it was
not permitted to make such modifications, but was required to approve or deny the plan
amendment as submitted.
Neither the port master plan provisions nor the public access provisions of the Act
contain a broad legislative mandate in favor of District's authority over the "precise
36
details" of port master plans; though District's governing body prepares the master plan
and Commission may not modify it as submitted as a condition of certification (§ 30714),
it ultimately remains Commission's primary role and responsibility as the statewide
supervisory agency to implement the Act and ensure a port master plan furthers the Act's
policies. (Accord, City of Chula Vista, supra, 133 Cal.App.3d at p. 481; Charles A. Pratt
Construction Co., Inc. v. California Coastal Commission, supra, 162 Cal.App.4th at
pp. 1075-1076.) Commission must certify District's plan or plan amendment with those
objectives. (§ 30714.) In doing so, Commission is empowered to not only determine
whether a master plan amendment conforms with the Act's policies, but that it carries out
those policies. (Ibid.) It exercises its independent judgment as to whether District's
proposed amendment reflects "actual compliance" with state standards and policies.
(Charles A. Pratt, at pp. 1075-1076; City of Chula Vista, supra, 133 Cal.App.3d at
p. 490.) Commission has a statutory mandate to "consider and encourage the utilization
of innovative access management techniques" (§ 30214, subd. (c); see Surfrider
Foundation v. California Coastal Commission (1994) 26 Cal.App.4th 151, 158, fn. 2),
and account for "the need to regulate the . . . manner of public access" on a case-by-case
basis (§ 30214, subd. (a)). It is permitted to "tak[e] into account the social and economic
needs of the people of the state" (§ 30001.5, subd. (b)) and "ensure that state policies
prevail" over local concerns. (See Pacific Palisades Bowl Mobile Estates, LLC v. City of
Los Angeles, supra, 55 Cal.4th at p. 794; City of Dana Point v. California Coastal
Commission, supra, 217 Cal.App.4th at p. 186.)
37
Commission exercised this permissible function in deciding whether the proposed
port master plan amendment complied with and carried out section 30213 without
actually providing lower cost overnight accommodations such as hostels, cabins,
campgrounds or budget motels. With respect to "lower cost visitor and recreational
facilities," section 30213 is unambiguously mandatory: Such facilities "shall be . . .
provided" where feasible. The statute separately references both "visitor . . . facilities"
and "recreational facilities," indicating that a visitor facility is something different from a
recreational resource such as a park, promenade, walking path, dock or golf course. As
the "state coastal zone planning and management agency for . . . all purposes" charged
with primary responsibility for implementing the Act (§ 30330) it is within Commission's
power to interpret section 30213's reference to visitor facilities as mandating the
provision of overnight accommodations. To the extent Commission interpreted section
30213 in this way—a determination that does not involve the scope of its authority—we
give great weight to its administrative construction. (Coronado Yacht Club v. California
Coastal Commission (1993) 13 Cal.App.4th 860, 868; see Ross v. California Coastal
Commission, supra, 199 Cal.App.4th at p. 922; In re Acknowledgement Cases (2015) 239
Cal.App.4th 1498, 1505 [a court must defer to the agency's interpretation of a statute
unless that interpretation contradicts the statute's clear language and purpose]; Hines v.
California Coastal Commission (2010) 186 Cal.App.4th 830, 849 [it is well established
that great weight must be given to the administrative construction of those charged with
the enforcement and interpretation of a statute].) But this court must ultimately pass on
the statute's construction (In re Lucas (2012) 53 Cal.4th 839, 849), and doing so we
38
conclude this interpretation is not "clearly erroneous" (ibid.) because it is consistent with
the statute's plain language, which refers to "any privately owned and operated hotel,
motel or other similar visitor-serving facility . . . ." (§ 30213, italics added.) The statute
itself refers to visitor facilities as places for overnight lodging. And such an
interpretation is consistent with statewide coastal policy—reflected in amendments
effective in 2018—that lower cost overnight accommodations "including hotels, motels,
hostels, cabins, and camping opportunities, are essential elements of coastal . . . access"
because "[a] lack of affordable accommodations remains a barrier to coastal access."
(§ 31411, added by Stats. 2017, ch. 838, § 3, eff. Jan. 1, 2018.) We therefore reject
District's assertions that section 30213, and the Act more generally, do not refer to or
mandate overnight accommodations.13
Nothing prevents Commission from delineating the statewide policies in its
findings, explaining a master plan's deficiencies in detail, or suggesting what sorts of
visitor facilities meet the Act's goals and section 30213's mandate. Rather, it is within
Commission's broad authority to apply its expertise and devise solutions to promote the
policy of providing "lower cost visitor . . . facilities," including by specifying overnight
accommodations that are the "type of development . . . designed in such a manner to be
intrinsically lower cost," in District's master plan. Likewise, the Act does not prevent
13 District did not argue below that it was economically infeasible to provide such
overnight facilities. It maintained visitor facilities included not just overnight
accommodations, but encompassed "public parks, public areas and promenades, streets
and sidewalks, bike paths, parking areas, boat moorings and public boat launches and
ramps." Such uses, however, fall in the separate category of "recreational facilities" in
section 30213.
39
Commission from deciding that collection of in-lieu mitigation fees no longer furthers or
carries out the legislative mandate that lower cost visitor facilities be provided. District
points out that the trigger for collecting such fees has not occurred for some of the past
hotel projects and it collected fees for another hotel that can be transferred if not used.
But Commission is entitled to conclude that the built-in delays with in-lieu mitigation
fees render them ineffectual in actually providing lower cost visitor facilities in
connection with the present plan amendment. The fact Commission previously certified
District's master plan without provision of such lower cost accommodations or subject to
in-lieu mitigation fees does not prevent Commission from now concluding that District's
proposed amendment does not further the Act's mandate for lower cost overnight
accommodations.
Additionally, Commission's denial was based on a finding that District's proposed
amendment was insufficiently specific to permit it to conclude that it met the Act's public
access policies, a conclusion well within its review authority under the master plan
provisions of the Act. (§ 30711, subds. (a)(4), (b) [requiring master plans contain
"information in sufficient detail" to permit a determination of consistency with public
access and port master plan policies].) Neither District nor Sunroad meaningfully
challenge the conclusion that the amendment lacked specific requirements for the
provision of lower cost accommodations either on the site or in the subarea generally.
District merely argues that Commission's rejections of economy and midscale
accommodations with kitchenettes, refrigerators or microwaves indirectly sets
40
room rates, a claim the trial court properly rejected. Though District also challenges the
sufficiency of the evidence supporting Commission's findings, it makes these assertions
without explanation or citation to the administrative record, then argues Commission's
findings "amount to little more than staff speculation and guesswork . . . ." The trial
court in initially reviewing Commission's decision was required to presume it was
supported by substantial evidence unless District or Sunroad showed otherwise. (Ross v
California Coastal Commission, supra, 199 Cal.App.4th at p. 921; Bay Area Citizens v.
Association of Bay Area Governments (2016) 248 Cal.App.4th 966, 998.) It did not rule
Commission's findings lacked substantial evidence. Indeed, neither District nor Sunroad
objected to Commission's postremand action on that ground.
District argues that courts consistently hold Commission "exceeds its jurisdiction
when it strays into policymaking." The broad contention is unsupported by the cited
cases, which address Commission's statutory authority under the Act to undertake
particular actions, such as require a permit, designate environmentally sensitive habitats,
or deny a coastal development permit on particular grounds. (See City of Dana Point v.
California Coastal Commission, supra, 217 Cal.App.4th at pp. 189-190 [Commission
lacked appellate jurisdiction under section 30625 to consider appeals of a nuisance
abatement ordinance because enactment of the ordinance was not an "appealable action"
permitting administrative appeal to Commission]; Burke v. California Coastal
Commission, supra, 168 Cal.App.4th at pp. 1100-1101, 1106, 1108 [Commission lacked
jurisdiction to require a permit for a fence, because it fell within a statutory exemption for
boundary disputes or settlements under section 30416, subdivision (c)]; Douda v.
41
California Coastal Commission (2008) 159 Cal.App.4th 1181, 1186, 1191, 1199-1200
[holding Commission possessed authority to designate an environmentally sensitive
habitat area before an LCP has been certified, pointing out the Act "does not parse what
policies should be specifically enforced or how they should be enforced" in that context,
and Commission also had authority under section 30251 to deny a coastal development
permit because it would impair scenic and visual resources four and a half miles inland,
because the statute "contains no restrictions"]; Security National Guaranty, Inc. v.
California Coastal Commission, supra, 159 Cal.App.4th at pp. 418, 422-423 [resolving
whether the Act granted Commission the power to declare a site an environmentally
sensitive habitat area during an administrative appeal from the grant of a coastal
development permit; the statutory scheme for LCP's did not grant Commission the
authority to make changes to the content of an LCP (§ 30603), and Commission imposed
additional standards not contained in the LCP as well as sought to amend it contrary to
section 30514, providing LCP's may be amended "by the appropriate local
government"].)
B. Commission Did Not Violate Any Other Express Statutory Limits on Its Authority in
Denying Certification.
District points to several other provisions of the Act that it suggests limit
Commission's jurisdiction in certifying a master plan and confer more power to District.
But none of these provisions restrict Commission's authority to prescribe the types of
overnight facilities that would further the mandate that lower cost visitor facilities be
42
provided in District's master plan, or suggest methods to ensure developers actually put
such facilities in place.
District points to section 30714's short, 90-day, time period within which
Commission must act to certify a master plan amendment, as well as its language
deeming an amendment approved if Commission fails to take action within that time.
But these types of provisions are merely designed to avoid unnecessary bureaucratic
delay (see, e.g., Encinitas Country Day School, Inc. v. California Coastal Commission
(2003) 108 Cal.App.4th 575, 583-584); they do not speak to the scope of Commission's
jurisdiction in assessing whether a proposed amendment complies with and furthers the
Act's public access policies and deciding what types of facilities best carry out those
policies.
District also refers to asserted limits on Commission's "permit authority" in section
30715. The section prevents Commission from exercising its "permit authority . . .
provided in Chapter 7 (commencing with Section 30600)" over "new development"
following its certification of a master plan, and delegates approvals to District at such
time. (§ 30715, subd. (a).) The specifically referenced permit authority is for coastal
development permits, which are not at issue in this proceeding. This provision in no way
limits the scope of Commission's jurisdiction in certifying or denying certification of a
port master plan or master plan amendment.
V. Commission's Denial of Certification Is Not Otherwise Contrary to Law
Sunroad maintains Commission failed to adopt written findings as required by
section 30714, which states a Commission's rejection of any portion of a plan shall be
43
based on written findings of fact and conclusions of law. It suggests Commission did not
explain its reasons for rejecting the proposed master plan amendment as modified during
the post-remand May 2017 hearing to include District's agreement to pay additional in-
lieu mitigation fees. According to Sunroad, this creates an "fundamental obstacle" to
Commission's argument that substantial evidence supports its findings.
Neither District nor Sunroad made this procedural challenge to the trial court in
objecting to Commission's June 2017 return. We decline to consider such challenges for
the first time on appeal where an objection could have been, but was not presented to the
trial court by some appropriate method. (See In re Marriage of Hinman (1997) 55
Cal.App.4th 988, 1002.) In sum, the trial court had no basis to conclude that
Commission's denial of certification is otherwise contrary to law.
44
DISPOSITION
The order is reversed and the matter remanded with directions to the trial court to
discharge the writ of mandate, and enter judgment in favor of the California Coastal
Commission. Commission shall recover its costs on appeal.
O'ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
45
Filed 10/1/18
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO UNIFIED PORT DISTRICT, D072954
Plaintiff and Respondent, (Super. Ct. No.
37-2015-00034288-CU-WM-CTL)
v.
ORDER MODIFYING OPINION
CALIFORNIA COASTAL COMMISSION, [CHANGE IN JUDGMENT]
Defendant and Appellant, ORDER DENYING REHEARING
SUNROAD MARINA PARTNERS, LP, ORDER CERTIFYING OPINION
FOR PUBLICATION
Real Party in Interest and Respondent.
THE COURT:
It is ordered that the opinion filed herein on September 7, 2018, be modified as
follows:
On page 1, in the first paragraph of the counsel listing, line 3, the words "Plaintiff
and Respondent" are replaced with the words "Defendant and Appellant," so that the
paragraph now reads:
Xavier Becerra, Attorney General, Daniel A. Olivas, Assistant Attorney
General, Jamee Jordan Patterson and Hayley Elizabeth Peterson, Deputy
Attorneys General, for Defendant and Appellant.
On page 2, in the third paragraph of the counsel listing, line 2, the words
"Defendant and Appellant" are replaced with the words "Plaintiff and Respondent," so
that the paragraph now reads:
Thomas A. Russell and Rebecca S. Harrington; Jenkins & Hogin and Christi
Hogin, Gregg W. Kettles for Plaintiff and Respondent.
On page 3, in the last line of the second full paragraph, the words "and enter
judgment in Commission's favor" are omitted so that the sentence now reads:
We reverse the order and direct the trial court to discharge the writ of
mandate.
On page 35, in the sentence starting on line 10 of the first paragraph, "[sic]" is
omitted so that the sentence now reads:
District argues "[t]he California Legislature put the Port District—not
Commission—in charge of figuring out how to achieve the Port Act's mission and
advance the policies of the Coastal Act."
On page 45, in the first sentence of the disposition, the words "and enter judgment
in favor of the California Coastal Commission" are omitted so that the sentence now
reads:
The order is reversed and the matter remanded with directions to the trial
court to discharge the writ of mandate.
The petition for rehearing is denied.
The opinion in this case filed September 7, 2018, was not certified for publication.
It appearing the opinion meets the standards for publication specified in California Rules
of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
2
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and ORDERED that the words
"Not to Be Published in the Official Reports" appearing on page 1 of said opinion be
deleted and the opinion herein be published in the Official Reports.
This modification changes the judgment.
O'ROURKE, Acting P. J.
Copies to: All parties
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