PACIFIC LEGAL FOUNDATION v. CALIFORNIA COASTAL COMMISSION

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Court of Appeal, Second District, Division 2, California.

PACIFIC LEGAL FOUNDATION, etc., et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, et al., Defendants and Respondents.

E. William JACKSON & John J. Hunter, Petitioners and Respondents, v. CALIFORNIA COASTAL COMMISSION, Appellant.

Civs. 62167, 61042.

Decided: February 24, 1982

Ronald A. Zumbrun, Thomas E. Hookano, Elleene A. Kirkland, Howard E. Susman, Pacific Legal Foundation by Harold J. Hughes, Sacramento, for plaintiffs and appellants. George Deukmejian, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., Peter H. Kaufman, Deputy Atty. Gen., for defendants and respondents. Ronald A. Zumbrun, Thomas E. Hookano, Elleene A. Kirkland, Pacific Legal Foundation by Harold J. Hughes, Sacramento, for petitioners and respondents. George Deukmejian, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., Peter H. Kaufman, Richard D. Sinclair, Deputy Attys. Gen., for respondent and appellant.

These consolidated proceedings deal with challenges to the actions of the California Coastal Commission (Commission) in requiring, as a condition of its granting a permit for any improvement or development of beach front property, a dedication by the applicant of a portion of the property for vertical or lateral public access.

The case of Jackson and Hunter v. California Coastal Commission, 2 Civil No. 61042 involves an action by two individual property owners against the Commission.   The trial court ruled in favor of the property owners and issued a peremptory writ of mandate directing the Commission to remove such condition from the granting of the permit.

The Commission appealed.   After briefs were filed, the Commission requested this court to dismiss its appeal with prejudice.   The property owners moved for an award of attorneys' fees under Code of Civil Procedure section 1021.5.1  We granted the request to dismiss but consolidated the motion for fees with the appeal in the case entitled Pacific Legal Foundation v. California Coastal Commission, 2 Civil No. 62167, for the reason that the conduct of the Commission in the dismissed appeal is relevant to the latter appeal and the issue is one of broad public interest.

In the latter appeal, Pacific Legal Foundation, a public interest law firm, the California Coastal Council, a nonprofit corporation, whose membership includes persons residing within the coastal zone and Marilyn Wolk, an individual owner of a beach front residence sought, by an action for declaratory and injunctive relief and a petition for mandamus, to have declared invalid certain of the Commission's regulations concerning public access requirements.   The trial court granted summary judgment in favor of the Commission.   The plaintiffs have appealed.   We reverse.

The California Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.) (hereafter the Act) is the legislatively enacted successor to the California Coastal Zone Act of 1972, which was adopted as an initiative measure.   The stated purpose of the act is, inter alia, to protect and maintain the quality of the coastal zone environment and resources, to achieve orderly and balanced use of those resources and to maximize public access and recreational opportunities.  (Pub. Resources Code, § 30001.5.)

The Act established a coastal zone 2 and required, in addition to local approval, a coastal development permit for any development in the zone.   The Commission and regional or local commissions were created and vested with the authority, inter alia, to pass on applications for permits.   The decisions of the regional commissions were made subject to review by the Commission.   (Pub. Resources Code, §§ 30600, 30300.)

As a state regulatory agency, the Commission is vested with a rule-making power, which power of course is subject to the provisions of the Administrative Procedure Act (Gov.Code, § 11340 et seq.) as well as the general law applicable to all such agencies.  (Pub. Resources Code, § 30333.)

Public Resources Code section 30620(a)(3) authorizes the Commission to promulgate interpretive guidelines setting forth the policies to be followed by the Commission and the regional commissions in implementing the Act.

The Commission did promulgate such guidelines and it is these guidelines which are the subject of this litigation.   The guidelines are the Commission's interpretation of the requirements of the Act.

Whatever title may be given to a rule adopted by an administrative agency it is more accurately termed “regulation”.  Government Code section 11342, subd. (b) provides in part:  “ ‘Regulation’ means every rule, regulation, order or standard of general application or the amendment, supplement or revision of any such rule, regulation, order or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it or to govern its procedure, ․”  A regulation may be of two types, i.e., legislative or interpretive.   The scope of judicial review of an interpretive regulation differs from that of the legislative type.   The “guidelines” at issue here are interpretive regulations.   We will hereafter refer to them as “regulations.”

STATUTORY PROVISIONS CONCERNING ACCESS

As noted, one of the goals of the Act is to maximize public access and recreational opportunities.

A continuing theme which appears throughout the Act, however, is that in achieving the stated goals, the social and economic needs of the people are to be considered and the constitutional protection that private property not be taken for a public use without just compensation be scrupulously observed.   (Pub. Resources Code, §§ 30001.5, 30210, 30608.)   The Legislature has declared “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 and especially to working persons employed within the coastal zone.”  (Pub. Resources Code, § 30001, subd. (d).)

Public Resources Code section 30214 provides in part:

“The public access policies of this article 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 including, but not limited to, the following:  ․ (2) The capacity of the site to sustain use and at what level of intensity.  (3) The appropriateness of limiting public access to the right to pass and repass depending on such factors as the ․ proximity of the access area to adjacent residential uses.  (4) The need to provide for the management of access areas so as to protect the privacy of adjacent property owners ․  (b) 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 ․”  (Emphasis added.)

In addition to the foregoing statements of policy the Act contains specific provisions concerning access.

“Development” is first defined broadly as “the placement or erection of any solid material or structure, ․ grading ․ of ․ construction, reconstruction, demolition, or alteration ․ of any structure, ․”  (Pub. Resources Code, § 30106.)

Development shall not interfere with public access already existing by virtue of legislation or prescription.  (Pub. Resources Code, § 30211.)

Any new development shall provide for public access unless, inter alia, adequate access already exists nearby.   Dedicated access shall not be required to be open to public use unless a public agency or private association accepts the responsibility for maintenance and liability of such accessway.   (Pub. Resources Code, § 30212.)

“New development” is nowhere defined.   The act only defines what it is not.   It is not the rebuilding of a structure destroyed by a natural disaster, the demolition and reconstruction of a single family residence or the improvement of any existing structure.   The replacement of a structure destroyed by a national disaster will not be considered “new development” if it is limited to an exact replacement in size and location.   The rebuilding of a single family residence or an improvement to an existing structure will not be considered “new development” if it does not increase the size or intensity of use by more than 10%.   Such improvements, however, cannot block or impede existing public access.  (Pub. Resources Code, § 30212.)

The clear implication of these provisions of the Act is a mandate to preserve existing legal public access and where new development projects increase the need for access or impair existing access, then access requirements are to be imposed.   In other words, the access policies are keyed to the effect of the development on access.   Further, it seems clear to us that the Legislature in speaking of access requirements for “new development” meant large new construction of multi-purpose or multi-unit projects.

The Act specifically prohibits the Commission from expanding its own powers through its rulemaking power.  (§ 30620(a)(3)) and, as noted, mandates that the Commission's power not be exercised in a manner which violates the constitutionally protected right of private property.

THE COMMISSION'S REGULATIONS

 As we will point out, the regulations clearly misinterpret the Act in that they purport to expand the Commission's power, run counter to the language and spirit of the Act and offend the constitutional prohibition against the taking of private property without just compensation.

Simply stated the regulations and the Commission's conduct in applying them expose the Commission's position that the permit process is to be used as a vehicle for increasing and expanding public access at the expense of private property owners, giving no consideration to whether or not any particular proposed development creates a need for additional access or impairs existing access.

At the threshold the regulations provide that “All new development resulting in any intensification of land use generates sufficient burdens on public access to require access conditions in conjunction with that development.”   (Public Access Guidelines, Part II(B) at 5;  emphasis added.)   That is an unwarranted extension of the language of the Act and a rejection of any need for determining the relationship between the development and public access.   It is so broad that it could include many types of development which would have nothing to do with access.  “Intensification of use” does not necessarily impede existing access nor does it necessarily create a need for additional access.   For example, an addition of a bedroom to a family dwelling to accommodate a new baby would intensify the land use and might increase the size of a house by more than 10% so as to qualify as “new development,” but it could hardly be said to burden public access to the beach or create a need for additional public access.

Next the regulations declare that “Although the question of whether adequate access exists nearby applies to the siting of both lateral and vertical access, the Commission has generally found that existing access along the shoreline is not adequate to serve the public needs ․”  (Public Access Guidelines, Part III(D)(3) at 17;  emphasis added.)   That provision simply repeals that portion of section 30212, which specifically says that no access conditions should be imposed where adequate nearby access exists, and instead declares by fiat that no adequate nearby access exists any place in the zone.

Next the regulations provide that “Evidence of prescriptive use also indicates the need for dedication under Section 30212 of the Act.   Requiring dedications of historic use areas under Section 30212 would protect any public rights while avoiding public and private litigation costs over the issue of prescriptive rights in a quiet title action.”  (Public Access Guidelines, Part II(A) at 4;  emphasis added.)

Here the Commission has arrogated unto itself the power to foreclose any determination of the issue of whether access use has ripened into a prescriptive right by using the permit process to short cut quiet title actions.   It imposes access conditions merely on the basis of some evidence of historic use.

Finally the Commission's unconcealed bias against the constitutionally protected right of private property is reflected in the regulations as follows:  “Private development imposes an impediment to or burden on the public's ability to gain access to or along the shoreline, either incrementally or cumulatively in the following ways:  ․ discourages them from visiting the shoreline in the first place because of physical proximity of development ; ․ creates use conflicts in which landowners harass and intimidate the public and seek to prevent them from using tidelands ․”  (Public Access Guidelines, Part II(B) at 5;  emphasis added.)

Rarely, if ever, have we had occasion to note such an overt manifestation of bias and the use of such pejorative language in the official writings of an agency of the State of California.   By that statement the Commission has simply declared that the very existence of privately owned residences along the shore line is an anathema to the public interest and has cast the private property owner in the role of the “heavy” in every scenario.   The regulation is in direct contradiction with the spirit of Public Resources Code section 30001(d) and the stated legislative policy.

Another portion of the same regulation declares that private development is a burden on public access in “(6) creating impediments to public access by placing structures along the shoreline (e.g. sea walls) ․ that alter shoreline processes ․ and even the location of the mean high tide line.”

In other words, the Commission takes the view that private owners of beach front property must eventually lose their property by either permitting it to be eroded away by the inevitable and unaltered “shoreline processes” or dedicate it to the state as a price for preventing such erosion.   This is a veritable “Hobson's Choice” involving a decision which, as in the case of Jackson, et al. v. Commission, often must be made under exigent circumstances.

 As another string to its bow, the Commission contends that its demands for public access across private property are justified by Article X, section 4 of the California Constitution, which 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; ․”  That provision does not vitiate the right of the owners of beach front property to exclude the public from their privately owned land.   The public trust over the tide lands applies to the area between the mean high tide and the low tide line as well as the navigable waters themselves.   The constitutional provision referred to prohibits the erection of structures which would block established right of way to the tide lands (Gion v. City of Santa Cruz, 2 Cal.3d 29, 84 Cal.Rptr. 162, 465 P.2d 50) but it does not authorize the invasion of private property to acquire access to the public trust area without the necessity of exercising the power of eminent domain.   (Bolsa Land Co. v. Burdick, 151 Cal. 254, 90 P. 532;  Oakland v. Oakland Water Front Co., 118 Cal. 160, 50 P. 277;  Bohn v. Albertson, 107 Cal.App.2d 738, 238 P.2d 128.)

JUDICIAL REVIEW

Public Resources Code section 30801 provides for judicial review of any decision or action of the Commission at the request of any aggrieved person by way of a writ of mandate pursuant to Code of Civil Procedure section 1094.5.   The determination of who is an aggrieved person will necessarily turn on the nature of the decision or action involved and its particular impact.   Of course this relief is in addition to the usual remedies available to challenge the action of an administrative agency.   Section 30803 provides further that any person may bring an action for declaratory and equitable relief to restrain any violation of the Act.

“In the case of interpretive rule, the inquiry is not into validity but is into correctness or propriety.   The legislative body has not delegated power to make a rule which will be binding upon the courts if it is valid.   The statute does not prevent the reviewing court from substituting its judgment on questions of desirability or wisdom.   The law is embodied in the statute, and the court is free to interpret the statute as it sees fit.”  (Davis, Admin. Law Treatise, Vol. 1, § 5.05, p. 315.)

 Interpretative regulations cannot be binding on a court for the reason that what the agency does in interpreting the law must always yield to the court's fundamental authority to interpret the law and discern the legislative intent.  (Davis, Admin. Law Treatise (1979) (2d ed.) Vol. 2, § 7.13, p. 59.)

 The more difficult question to be addressed in determining judicial reviewability of interpretive regulation is the matter of “ripeness.”   That question in turn is governed by the regulation's pragmatic effect on the regulated parties.  (Davis, Admin. Law Treatise Supp. (1970) § 5.03, p. 250, § 21.00, p. 673, § 21.08, p. 694.)   Mere expressions of abstract opinion by an agency are generally not reviewable because they are only of academic interest.   But if those expressions are implemented in a manner which has a substantial impact on agency action, vis-a-vis, the regulated public they are “ripe” for review.

The trial court, in essence, found that the regulations involved here were not “ripe” for judicial review.   In announcing its decision the court stated that while it entertained doubt as to the validity of the regulations, that determination must await a case-by-case application to individual property owners.

For its part, the Commission argues that the regulations are “simply guidelines” with no binding effect even on the Commission itself and thus not subject to judicial review.

We disagree with both positions.   The regulations in practical effect are directives to the regional commissions which control the permit process.   Further, the Commission itself has a “track record” as reflected in its actions in the case of Jackson and Hunter v. Commission, demonstrating that it adheres to the policies evidenced by the regulations in unreasonably and unlawfully exacting dedication of access.   An agency can, by a series of administrative adjudications, promulgate policy which has the effect of a regulation.  (Securities Comm'n v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995;  Kaplan, Notes And Recent Decisions (1948) 36 Cal.L.Rev. p. 619.)

In Jackson, et al., one of the two cases before us, two property owners were threatened with severe damage to their beach front property by the storms of 1978.   In attempting to preserve their property, they placed rocks along the base of existing sea walls.   These rocks were below the normal sand level and did not change one iota the configuration of the beach nor impact existing public access to the slightest degree.   The two plaintiffs in this action were but two of a number of persons in the same area facing the same problem.

The Commission quite properly ruled that under the Act permits were required for such improvement to the sea walls and could also have properly imposed structural requirements.   The Commission, however, stating that the sea wall itself interfered with “shoreline processes” quite improperly required as a condition for the issuance of such permits that the applicants dedicate to public use the property between the base of the sea wall and the mean high tide line—all of the property owners' dry beach area and about one-half of the total property area.   It also required that the property owners assume responsibility for maintenance and liability for the dedicated property.

In that case, the trial court correctly found that there was no rational relationship between the “development” and the conditions which were imposed.   The Commission, as noted, abandoned its appeal from the trial court's order, obviously recognizing the error of its ways.   A recurrence of the injustice of forcing citizens to litigate to protect their rights against admittedly illegal deprivation, must be prevented.

These regulations hang like a “Sword of Damocles” over the heads of property owners in the coastal zone in that in deciding to undertake any improvement on property, the property owner must consider that he will be faced with expensive litigation to challenge the Commission's conditions, or lose part of his property by forced dedication.   This can only have a “chilling” effect on all development and detrimentally affect the economy of the area.   In our opinion, the issue is “ripe” for review.  (See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584;  and compare American President Lines, Ltd. v. Federal Maritime Com'n., 316 F.2d 419.)

The permit process involves the Commission in the exercise of the state's police power.   In such exercise it is governed by the law applicable to all regulatory agencies exercising that power.   The action of such an agency may not be arbitrary, unreasonable or result in the taking or destruction of private property without just compensation.  (Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303;  Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322;  Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25.)

 It has been recognized that in the exercise of the police power, by requiring permits for development and use of private property, conditions may be imposed on the granting of a permit.   Dedication of a portion of the property to public use, may be required as such a condition.   There must, however, be a reasonable and rational relationship between the use for which the landowner seeks a permit and what the government exacts for granting permission.  (Mid-Way Cabinet Etc. Mfg. v. County of San Joaquin, 257 Cal.App.2d 181, 65 Cal.Rptr. 37.)   The proposed use sets the limits on the demands that may be made by the government.  (Scrutton v. County of Sacramento, 275 Cal.App.2d 412, 79 Cal.Rptr. 872.)

“[C]onditions imposed on the grant of land use applications are valid if reasonably conceived to fulfill public needs emanating from the landowners's proposed use.   We perceive this same concept to be a prime motivation for the Legislature's adoption of ․ section 30010, which reads:  ‘The Legislature hereby finds and declares that this division is not intended, and shall not be construed as authorizing ․ the commission, ․ to exercise [its] power to grant or deny a permit in a manner which will take or damage private property for public use, without the payment of just compensation ․’ ”  (Liberty v. California Coastal Com., 113 Cal.App.3d 491, at p. 503, 170 Cal.Rptr. 247;  emphasis added.)

 It is a salutory objective to expand and develop public access to the beach and shoreline but the whole concept underlying the constitutional prohibition against taking private property for public use without just compensation is that individual property owners should not be forced to bear a disproportionate burden in the providing of public facilities.  (Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554.)

That prohibition is as important to our basic freedom and should be enforced with a vigor equal to that with which we prevent incursions on freedom of speech, press or religion.   Courts must be constantly on guard to curb the voracious appetite for power which appears to be indigenous to regulatory bodies lest the improper exercise of the police power swallow any need for the exercise of the power of eminent domain.

In promulgating and implementing these regulations, the Commission has attempted to enlarge its own powers and has proceeded in a manner which offends the constitutional protection of private property.   Thus the regulations are in direct violation of the Act and unless the regulations are set aside and their continued implementation enjoined, they will continue to threaten the exaction of dedication of private property in an unconstitutional, arbitrary and unreasonable manner.

 Plaintiffs in both of these actions have met the criteria of Code of Civil Procedure section 1021.5, in that the result of this litigation is the enforcement of an important right affecting the public interest.   They are thus entitled to an award of attorneys' fees.

In Pacific Legal Foundation v. California Coastal Commission, 2 Civil No. 62167, the judgment is reversed and the matter remanded to the trial court with directions to enter judgment in favor of plaintiffs and petitioners as prayed for and to award a reasonable amount of attorneys' fees.

In Jackson & Hunter v. California Coastal Commission, 2 Civil No. 61042, the appeal having been dismissed and the judgment of the trial court thus being final, the matter is remanded to the trial court for the sole purpose of awarding plaintiffs' reasonable attorneys' fees.

FOOTNOTES

1.   Code of Civil Procedure section 1021.5, the so-called “private attorney general” statute reads as follows:“Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if:  (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.   With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor.”

2.   The “Coastal Zone” is defined in Public Resources Code section 30103 as generally the area of the entire coast of California to a point 1,000 yards inland from the mean high tide line.   That distance may be increased or decreased depending upon the geography and the existence of estuaries or developed urban areas.

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.