Coalition of Concerned Communities, Inc. v. City of Los Angeles , 34 Cal. 4th 733 ( 2004 )

MORENO, J., Concurring.

I concur in the result. I write separately to clarify what I believe to be the proper holding and rationale.

I agree with the majority that neither the language of the statute nor its legislative history can resolve the question before us, although the use of the broad term “housing development” at least permits the possibility the Legislature was concerned with something beyond housing units in the strict sense. I also agree with the majority that the key to this case is to divine the legislative purpose of Government Code section 65590, subdivision (d) (hereafter section 65590(d)).

I believe the purpose of section 65590(d) was expressed in the Coastal Commission’s Interpretive Guidelines to former Public Resources Code section 30213, which had mandated the Coastal Commission to protect and provide for “housing opportunities for persons of low and moderate income.” (Stats. 1976, ch. 1330, § 1, p. 5958.) The Interpretive Guidelines state that section 30213 “is a recognition that meaningful access to the coast requires housing opportunities as well as other forms of coastal access.” (Cal. Coastal Com., Interpretive Guidelines on New Construction of Housing (1981) § II.A, p. 13.) “The access, economic development and environmental policies of the Coastal Act all provide that the coastal zone will not be the domain of a single class of citizens but will instead remain available to the entire public; the provision of affordable housing benefits not only those who live in it but all members of society.” (Id., § II.B, p. 14.)

The Mello Act transferred the responsibilities for providing affordable housing within the coastal zone from the Coastal Commission to local governments. But I believe it retained the original purpose expressed in the above Interpretive Guidelines. The reason for the concern with the absence of affordable housing in the coastal zone is obvious. The coastal zone offers some of the choicest, and most expensive, land. The housing market, left to itself, might well make the coastal zone, or large portions of it, “the domain of a single class of citizens,” i.e., the wealthy, contrary to the public policy of access embodied in the Coastal Act and transplanted in slightly different form into the Mello Act.¹

If the goal of the Mello Act is not to have the coastal zone dominated by a single class, the means chosen to achieve that goal are to require the building of affordable housing in the coastal zone when affordable coastal housing is destroyed and, “where feasible,” when any housing is constructed within the zone. (§ 65590(d).) When no housing is constructed within the coastal zone then, generally speaking, there is no issue of monopolization of coastal housing by the wealthiest citizens. But such is not invariably the case. Consider, for example a development that builds houses just outside the coastal zone boundary but constructs private amenities, e.g., golf courses or other sporting facilities, within the coastal zone. Such amenities would be occupying the coastal zone as an adjunct of residential development and would thwart the purpose of the Mello Act by making a portion of the coastal zone the exclusive domain, the backyard as it were, of wealthy homeowners.

As the majority correctly points out, the present case does not involve such private amenities. (Maj. opn., ante, at p. 737, fn. 2.) Rather, the portion of the coastal zone to be used includes various public improvements such as an access road, sewers, a storm drain, various utility lines, erosion control measures, and a public view park. These public improvements do not raise the issue of monopolization of coastal land by a single class that would be implicated by the construction of private facilities in the coastal zone that are an adjunct of residential development. I therefore concur in the majority’s result.

Kennard, L, concurred.

1 I note that the Mello Act includes moderate-income families with incomes of up to “120 percent of the area median income,” with some flexibility to adjust that figure upward for certain geographic areas. (Health & Saf. Code, § 50093.) The Mello Act was evidently concerned, therefore, with the exclusion from the coastal zone of both low-income and middle-income families.