JONATHAN CLUB v. CALIFORNIA COASTAL COMMISSION (1988)

This is an appeal by the Jonathan Club (the Club) from a superior court judgment denying its petition for peremptory writ of administrative mandamus.   In the petition, the Club sought to invalidate a membership condition precluding discrimination on the basis of race, sex or religion which was imposed by respondent California Coastal Commission (the Commission) as a requirement for obtaining a development permit.

The Club's primary contentions of error are that (1) the evidence failed to establish the state action which is a prerequisite to imposition of such a condition on a private club;  (2) the Commission lacked statutory authority to impose the condition;  (3) the Commission was statutorily precluded from imposing the condition due to a boundary line agreement previously entered into as part of a settlement between the Club and the state;  and (4) imposition of the condition breached the settlement.

We find no error, and therefore affirm.

In 1974, the State of California (through its Department of Parks and Recreation and State Lands Commission) and the City of Santa Monica filed an action to quiet title against various property owners along Santa Monica State Beach, the most heavily used public beach in the state.   The issue in the litigation was the ownership of the sandy beach which had accreted seaward of the mean high tide line established by a 1921 survey as the boundary between the private property towards the land and the public property towards the sea.   One of the defendants was the Club, which owns and operates a facility at the beach.

Following years of complex litigation, the state, city and Club entered into a settlement in 1984 which included a boundary line agreement and conveyances, a permit for improvements and lease option agreement, and a lease agreement with options (hereinafter sometimes referred to collectively as “the lease”).   The Club gave up all ownership claim to property seaward of the 1921 boundary line in exchange for exclusive use of four parcels of state-owned land bordering on land owned by the Club.   Three of the four parcels are seaward of the 1921 boundary;  the fourth is landward of the boundary and immediately south of Club property.   The first three parcels are leased for 25 years, and the fourth for 10 years, with options to renew.   The Club's annual rent is in excess of $40,000.   The public retains use of the tidelands nearest the water, and the Club must construct a clear public accessway along the south boundary.

The lease further provides that the Club's intended use of the leased parcels for parking and paddle tennis courts is to be deemed approved concurrently with the settlement, on condition that the Club obtain any necessary permits.   There is no mention of any condition regarding the Club's membership policies.

The 1984 settlement was approved by a judgment of the superior court on January 2, 1985.

On January 31, 1985, the Club filed an application with the Commission for a coastal development permit.¹  The proposed development is a major remodeling and expansion of the beach facility.   It involves 122,000 square feet of land, 58,000 square feet of which is leased public property.   The plan includes expanding further seaward onto both leased and fee-owned sandy beach, and incorporating parking spaces from leased public land which previously had been used for parking by both the Club and the public.   The four public parcels will be used chiefly for parking and paddle tennis courts.

The lengthy staff report prepared by the Commission recognized that the proposed project would permanently convert existing sandy beach to nonsandy beach use and benefit the Club's membership while inhibiting or preventing the general public from enjoying a publicly owned area of the beach.   To incorporate public benefits which would mitigate the project's adverse effect on the public, 10 conditions were recommended.   Among the conditions were elimination of the paddle tennis court which extended furthest seaward, restoration of a degraded public beach area adjacent to the project, continuation of a parking shuttle, and payment of a sizeable fee for shoreline enhancement purposes.   There was again no condition involving the Club's membership.

At the July 25, 1985 public hearing of the Commission, the Commission's staff analyst pointed out that granting the Club exclusive use of the parcels for development “would push the public and [the Club's] beach users, further seaward onto a public beach” which was not stabilized due to storm damage.   Approval of the permit was still recommended, subject to the conditions which were the result of months of negotiations with the Club.   The local property owner's association supported issuance of the permit.   However, a representative of the Anti-Defamation League of the B'nai B'rith, appearing on behalf of numerous minority organizations,² then argued that an additional condition should be imposed.   He maintained that it was the general perception of the public that minorities were excluded from Club membership, and that since the proposed development included public land, the Commission should condition approval upon an affirmative declaration from the Club that it utilized nondiscriminatory admission policies.

One Commission member discussed a 1981 magazine article he had read which purportedly contained descriptions by Club members of invidious discrimination in Club membership policies, including the Club's failure to grant Los Angeles' black mayor a traditional honorary membership.

When queried, representatives of the Club repeatedly refused to state whether or not the Club had discriminatory membership policies, on the ground that issue was not before the Commission.

A deputy attorney general advised the Commission that the use of state land in the project appeared to constitute sufficient state action to permit imposition of such a condition.   The Commission staff indicated it also had been concerned about the possible exclusion of minorities, but that since it was not clear whether the Coastal Act authorized such a condition, the decision had been left up to the Commission.

After lengthy debate, a majority of the Commission members voted to add a nondiscrimination condition.   The finding was adopted and the Club's motion for reconsideration was denied at a subsequent Commission hearing on August 30, 1985.

The condition which was adopted states:  “Prior to transmittal of a permit, the Jonathan Club shall deliver to the Executive Director a statement that the Club will not discriminate on the basis of race, sex or religion.   The certification of membership policy shall remain in effect during the life of this project.” ³

On September 5, 1985, the Club filed a petition for peremptory writ of administrative mandamus in an effort to set aside the membership condition.

After reading the administrative record and hearing detailed argument, the trial court denied the petition.   In its statement of decision, the court found state action because the Club was exclusively using state-owned leased property which was immediately adjacent both to property owned by the Club and to the most heavily used public beach in the state.   It further found that the state had not waived any right to enforce the Fourteenth Amendment through the 1984 settlement;  that the Commission had authority to impose a nondiscrimination condition pursuant to its statutory mandate to provide maximum access for all people;  that, although there was no evidence that the Club actually discriminated, it was reasonable to impose a condition of nondiscrimination in light of the Club's refusal to assure the Commission that it did not discriminate;  that a statute excluding boundary settlements from the jurisdiction of the Commission was inapplicable;  and that the findings of the Commission were supported by substantial evidence.

The Club's motion for new trial was denied, and this appeal followed.

I

 The Club's primary argument is that the use of leased state lands in the proposed development constitutes insufficient entanglement with the state to justify a finding of state action.

The parties agree on the controlling case law but disagree on the application of those cases to these facts.

In Burton v. Wilmington Parking Authority (1961) 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, the defendant was a privately-owned restaurant which leased space in an automobile parking building which was owned and operated by a state agency.   When the restaurant refused to serve a black man, he sued for declaratory relief on the ground of infringement of his rights under the equal protection clause of the Fourteenth Amendment.   The Supreme Court held the circumstances showed discriminatory state action which violated the equal protection clause.

The Burton court's analysis began with the well-settled principle that the equal protection clause prohibits discriminatory action by the state and not private conduct.  (365 U.S. at pp. 721–722, 81 S.Ct. at pp. 860.)   “[P]rivate conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it․”  (Id. at p. 722, 81 S.Ct. at p. 860.)   There is no precise formula.  “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.”  (Ibid.)

In evaluating the facts, the court recognized that the cost of the facility was only partly advanced from public funds;  there was a sizeable proportion of commercial leasing in the structure which would produce more annual revenue than did parking;  it was only by chance that the leasing included a restaurant;  the restaurant had expended considerable money on furnishings;  the restaurant's main entrance was from the street and not the parking area;  and the only connection between the restaurant and the parking facility was its furnishing of $28,700 in annual rent.  (Id. at p. 723, 81 S.Ct. at p. 861.)

On the other hand, the land and building were publicly owned and dedicated to public use;  public funds would be used for the costs of land acquisition, construction, maintenance and repairs;  the leased area was not surplus state property but an indispensable part of the state's plan for the project;  the restaurant could not be taxed on improvements to the leasehold;  and the location of the restaurant within the parking facility conferred various mutual benefits, such as affording convenient parking for restaurant users and a convenient dining place for users of the parking facilities.  (Id. at p. 723–724, 81 S.Ct. at p. 861.)

“Addition of all these activities, obligations and responsibilities of the Authority, the benefits mutually conferred, together with the obvious fact that the restaurant is operated as an integral part of a public building devoted to a public parking service, indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn.”  (Id. at p. 724, 81 S.Ct. at p. 861.)   The state had “so far insinuated itself into a position of interdependence” with the restaurant that it had become “a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.”  (Id., at p. 725, 81 S.Ct. at p. 862.)

Burton saw no problem with the fact the parking facility had not imposed a requirement in the lease that restaurant services be made available to the general public on a nondiscriminatory basis.  “[N]o State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be․  By its inaction, the Authority, and through it the State, has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination.”  (Id. at p. 725, 81 S.Ct. at p. 861.)

Burton cautioned that the determination of state action could not be deduced solely from a lease and must be based on the facts of each case.   Its specific and limited holding was “that when a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself.”  (Id. at p. 726, 81 S.Ct. at p. 862.)

In Moose Lodge No. 107 v. Irvis (1972) 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627, a white member of the defendant, a private club, brought a black man there as his guest.   The guest was refused service solely because of his race.   He brought an action against the club under the Civil Rights Act of 1871, on the theory that the refusal of service constituted “state action” for purposes of the Fourteenth Amendment because the State Liquor Control Board had issued a liquor license to the club.   The opinion by Justice Rehnquist found that the operation of the regulatory scheme enforced by the Liquor Control Board did not sufficiently implicate the state in the discriminatory policies of the lodge to make that operation “state action” within the ambit of the equal protection clause of the Fourteenth Amendment.  (Id. at p. 177, 92 S.Ct. at p. 1973.)

The evidence in Moose Lodge showed that each local lodge was bound by general bylaws which limited membership to white male Caucasians, and maintained a policy of permitting only white guests on lodge premises.   The club conducted all its activities in a building it owned, received no public funding, and permitted only members and invited guests inside.   While the case was on appeal, the bylaws were changed so that the official racial restriction which formerly applied only to members also applied to guests.

Justice Rehnquist's opinion recognized “the essential dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, ‘however discriminatory or wrongful,’ against which that clause ‘erects no shield.’ ”  (Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at p. 172, 92 S.Ct. at p. 1971, quoting Shelley v. Kraemer (1948) 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161.)   The court went on to find that, unlike Burton, there was no symbiotic relationship between the club and the state.   While Burton involved “a public restaurant in a public building,” Moose Lodge involved “a private social club in a private building.”  (Moose Lodge, supra, 407 U.S. at p. 175, 92 S.Ct. at p. 1972.)   The opinion concluded, however, that the bylaws having been changed to racially restrict guests, a provision of the liquor regulations, otherwise neutral in its terms, which required adherence to a licensee's constitution and bylaws invoked the sanctions of the state to enforce a concededly discriminatory private rule.  “State action, for purposes of the Equal Protection Clause, may emanate from rulings of administrative and regulatory agencies as well as from legislative or judicial action.  (Robinson v. Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771 (1964).”  (Moose Lodge, supra, 407 U.S. at p. 179, 92 S.Ct. at 1974.)   Enforcement of that provision of the regulations was therefore enjoined.

In Gilmore v. City of Montgomery (1974) 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304, the court upheld an injunction prohibiting the city from exclusively allocating its recreational facilities to segregated private schools.   The city's action was held to violate an existing parks desegregation order by depriving black citizens of their right of equal access to the city's parks and recreational facilities.  (Id. at pp. 567–569, 94 S.Ct. at pp. 2423–24.)   It also contravened an outstanding school desegregation order, since the attractiveness of the segregated schools was enhanced, the resulting capital savings could be used by the schools for other purposes, and the schools received an opportunity to operate concessions which generated revenue.

The Gilmore decision explained that the concept of “exclusive” use was “helpful not so much as a controlling legal principle but as a description of a type of use and, in the context of this case, suggestive of a means of allocating public recreational facilities.   The term ‘exclusive use’ implies that an entire facility is exclusively, and completely, in the possession, control, and use of a private group.   It also implies, without mandating, a decision-making role for the city in allocating such facilities among private and, for that matter, public groups.  [¶] Upon this understanding of the term, we agree with petitioners that the city's policy of allocating facilities to segregated private schools ․ created, in effect, ‘enclaves of segregation’ and deprived petitioners of equal access to parks and recreational facilities.”  (417 U.S. at p. 566, 94 S.Ct. at p. 2422;  fn. omitted.)

Gilmore remanded so additional evidence could be taken on the question of whether there was sufficient state action to justify enjoining nonexclusive use of the facilities by the segregated schools or all uses by segregated groups which were not connected to schools.   In analyzing the question of the applicability of Burton and Moose Lodge to the nonexclusive use of park facilities by private organizations, the court stated:  “Because the city makes city property available for use by private entities, this case is more like Burton than Moose Lodge.   The question then is whether there is significant state involvement in the private discrimination alleged.”   (Gilmore v. City of Montgomery, supra, 417 U.S. at p. 573, 94 S.Ct. at p. 2426.)   A finding of state action would be improper if based simply on the mere use by private segregated groups of public facilities open to everyone, such as zoos, museums and parks.  “If, however, the city or other governmental entity rations otherwise freely accessible recreational facilities, the case for state action will naturally be stronger than if the facilities are simply available to all comers without condition or reservation.”  (Id. at p. 574, 94 S.Ct. at p. 2426.)   In its conclusion, the court cautioned that “any denial of access to public facilities must withstand close scrutiny and be carefully circumscribed.” ⁴  (Id. at p. 575, 94 S.Ct. at p. 2427.)

We glean the following points from the preceding cases:

(1) State action was present in Burton through the symbiotic relationship between the private restaurant and the public parking facility in which the restaurant leased space, notwithstanding the failure of the lease to contain a provision precluding discrimination.

(2) State action was present in Moose Lodge to the extent that the facially neutral liquor board regulation's application to the private club's racially discriminatory constitution and bylaws invoked the sanctions of the state to enforce the concededly discriminatory private rule.

(3) Under Gilmore, the state may not ration use of limited recreational facilities to a private organization which discriminates.⁵

It is evident that the facts here fall somewhere between those of Burton and Moose Lodge.   We have a private club which was conducting its activities in part on land leased from the state.

In our view, the Gilmore concept of the allocation of limited recreational facilities is at the heart of the trial court's finding of state action.   The Club incorrectly maintains that the trial court relied solely upon the factor of the lease instead of looking at the total circumstances.   In fact, the trial court made the following findings:  “In the case before the court, there is in part the question of the use of property, the fee title of which is owned by the state, leased by the Jonathan Club.   That property is immediately adjacent to the most heavily used public beach in the State of California.   It is also immediately adjacent to the property owned by the Jonathan Club, and is to be exclusively utilized by Jonathan Club members during the term of the lease.  [¶] ․ Under these circumstances, the use of the property does involve state action, and the Fourteenth Amendment does apply.”

The fact that the public is excluded from needed, otherwise usable public beach is a crucial factor to the determination of state action, and distinguishes this case from Golden v. Biscayne Bay Yacht Club (5th Cir.1976) 530 F.2d 16, upon which the Club relies.

In Golden, two men, one Black and one Jewish, brought a federal civil rights action against a private club which had never had any Black or Jewish members.   The club was a genuinely private organization which received no funds from any public source and had existed prior to incorporation of the city.   The city asserted title in 1962 to the bay bottoms under the club-constructed and club-maintained dock facilities which were connected to the club's land on shore.   The club thereafter leased the bottom land from the city for a fee of $1 per year.   The existence of the lease was the sole participation by the City of Miami in the operation of the club.

Based on the lease, the district court in Golden found sufficient state action to justify ordering the club to cease barring the membership of applicants solely on account of race and religion.   The fifth circuit, sitting en banc, reversed on the ground that as a matter of law the facts fell “short of establishing that the City of Miami has so far insinuated itself into a position of interdependence with the club that it must be recognized as a joint participant in the internal membership policies of the club.”  (Id. at p. 22.)  Golden is not controlling here.   Further, there was no evidence in Golden that the club's use of the bottom lands in any way limited or interfered with the citizens' use of public waters.   In contrast, the leased land here is a sizeable portion of accessible sandy beach from which the public is excluded.   By permitting the Club to offer its members a state-owned portion of the limited amount of available beach at Santa Monica, the state increased the desirability of Club membership and, presumably, the value of the beach facility itself.

Moreover, while Golden involved nominal rent of $1 per year, the lease here requires the Club to pay over $40,000 per year.   The payment of rent is a significant factor in the state action equation.  (Burton v. Wilmington Parking Authority, supra, 365 U.S. at p. 723, 81 S.Ct. at p. 861.)

The Commission also maintains that state action is present under the equal protection clause of the state Constitution.  (Cal. Const., art. I, § 7, subd. (a).) ⁶  We agree.   While the state and federal equal protection safeguards are substantially equivalent (Dept. of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586, 588, 43 Cal.Rptr. 329, 400 P.2d 321;  Serrano v. Priest (1971) 5 Cal.3d 584, 596, fn. 11, 96 Cal.Rptr. 601, 487 P.2d 1241), and state action is necessary under both (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 468, 156 Cal.Rptr. 14, 595 P.2d 592), state action may exist under the state provision where it is not recognized under the federal.  “[A]lthough our court will carefully consider federal state action decisions with respect to the federal equal protection clause insofar as they are persuasive, we do not consider ourselves bound by such decisions in interpreting the reach of the safeguards of our state equal protection clause.   As article 1, section 24 of the California Constitution explicitly declares:  “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”  (Gay Law Students Assn. v. Pacific Tel. & Tel. Co., supra, at p. 469, 156 Cal.Rptr. 14, 595 P.2d 592;  Motors Ins. Corp. v. Division of Fair Employment Practices (1981) 118 Cal.App.3d 209, 220, 173 Cal.Rptr. 332.)

Past decisions in this state which have construed the “separate and distinct” state equal protection safeguard have recognized “the importance of interpreting the provision in light of the realities of the continuing problems faced by minorities today.”  (Price v. Civil Service Com. (1980) 26 Cal.3d 257, 284–285, 161 Cal.Rptr. 475, 604 P.2d 1365;  Crawford v. Board of Education (1976) 17 Cal.3d 280, 301–302, 130 Cal.Rptr. 724, 551 P.2d 28.)   The condition imposed by the Commission here was aimed at those realities.

The preceding state action analysis convinces us that state action has been established in this case under the state Constitution as well as the federal Constitution.

The Commission and amici briefs also argue for the first time on appeal that the trial court's finding is further supported by Roberts v. United States Jaycees (1984) 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462, and Bd. of Dirs. of Rotary Int'l. v. Rotary Club (1987) 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474.   Those cases involved local club chapters which challenged discriminatory policies of their parent organizations through state laws prohibiting invidious discrimination by public accommodations or business establishments.   Factors like size, purpose, policies, selectivity and congeniality showed that the clubs were not the kind of relationships warranting the constitutional protection for freedom of association.   (Roberts, supra, 468 U.S. at p. 620, 104 S.Ct. at 3251;  Bd. of Dirs. of Rotary Int'l., supra, 481 U.S. at ––––, 107 S.Ct. at 1946, 95 L.Ed.2d at pp. 484–485.)   Similarly, N.Y.S. Club Ass'n. v. City of New York (1987) 69 N.Y.2d 211, 513 N.Y.S.2d 349, 505 N.E.2d 915 (probable jurisdiction noted, New York State Club Assn. v. New York (1987) 484 U.S. 812, 108 S.Ct. 62, 98 L.Ed.2d 26), involved the constitutionality of a New York City ordinance prohibiting discrimination by large private clubs of specified characteristics.   Unfortunately, the record here does not contain sufficient details about the Jonathan Club to afford us the opportunity to engage in that kind of analysis.   All the Commission knew about the Club was that it owned and operated a facility at Santa Monica State Beach, proposed a development which included a sizeable block of leased state land, was reputed to practice discriminatory membership policies, and refused to discuss the issue.   We have approached the case on that basis.⁷

We therefore conclude that there was sufficient entanglement with the state under the equal protection clauses of the federal and state Constitutions to justify the finding of state action which permits imposition of the membership condition.

II

 The Club also argues that the Commission lacked statutory authority to impose the membership condition.   We disagree.

The California Coastal Act of 1976 is the product of a detailed study by the California Coastal Zone Conservation Commission.   That study resulted in “a plan for the orderly, long-range conservation, use, and management of the natural, scenic, cultural, recreational, and manmade resources of the coastal zone.”  (Pub.Resources Code, § 30002;  3 Witkin, Summary of Cal.Law (8th ed. 1984 supp.) § 39A, pp. 155–157.)

The access provisions of the act follow the constitutional mandate of article X, section 4 of the California Constitution, which was adopted on June 8, 1976.   It 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.”  (See comment, Public Beach Access Exactions:  Extending the Public Trust Doctrine to Vindicate Public Rights (1981) 28 UCLA L.Rev. 1049, 1067.)

One of the stated goals of the act is to “[m]aximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners.”   (Pub.Resources Code, § 30001.5, subd. (c).)

Section 30210, upon which the trial court relied, provides:  “In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse.”

We agree with the trial court that the membership condition here was authorized by the Coastal Act.   The condition ensures that, for the period of time the Club has exclusive use of public property at the beach, no member of the public will be excluded from access to that land based on invidious discrimination in Club membership policies.

The Commission's action was further supported by the Government Code.

Government Code section 54091 states:  “Any city, county, or other local agency which owns, operates, or controls any public beach shall allow the use of such public beach by all persons regardless of color, race, religion, ancestry, sex, national origin, or residence․”  And Government Code section 54092 provides:  “Any city, county or other local agency which allows any property owned, operated or controlled by it to be used as a means of access to any public beach shall allow free access over such property to all persons regardless of color, race, religion, ancestry, sex, national origin or residence.”   While we have located no cases construing those sections, it is apparent that access to the public beach by all of our citizens is of paramount importance to the Legislature.

 We recognize that under the United States Supreme Court's recent decision in Nollan v. California Coastal Com'n (1987) 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677, there are limitations on the type of condition the Commission may impose.   We see nothing in Nollan to preclude the condition at issue here.

Nollan held that the takings clause of the Fifth Amendment was violated where the commission required a private property owner to grant a beachfront easement to the public as a condition for obtaining a building permit for a single-family home.   In contrast, the instant case involved neither the granting of an easement nor the takings clause, and includes public land in the plans for the proposed development.

Indeed, there is language in Nollan which supports the membership condition imposed here.  Nollan states that the Commission's “assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end.”   (483 U.S. at ––––, 107 S.Ct. at 3147–48, 97 L.Ed.2d at p. 689.)   The majority opinion (four justices dissented) went on to find no rational connection between the expressed governmental purpose of visual access from the roadway and the imposed condition requiring lateral access along the coastline.

Here, in contrast, there is a direct connection between the governmental purpose of maximizing public access to state beach lands and the condition which was imposed.   Again, by precluding discrimination against minorities in the Club's membership policies, the Commission maximized the possibility that all segments of the public will have access to the leased land.

III

 The Club further maintains that the Commission lacked jurisdiction to impose the condition because the leased portions of the project are part of the 1984 boundary settlement, and section 30416, subdivision (c) of the Coastal Act excludes boundary settlements from the Commission's purview.

Pursuant to Public Resources Code section 30600, “any person wishing to perform or undertake any development in the coastal zone ․ shall obtain a coastal development permit.”

“Development” is broadly defined by section 30106, and includes, inter alia, “construction, reconstruction, demolition, or alteration of the size of any structure․”  However, section 30416, subdivision (c) contains the following exclusion:  “Boundary settlements between the State Lands Commission and other parties and any exchanges of land in connection therewith shall not be a development within the meaning of this division.”

The boundary line agreement which is part of the 1984 settlement is signed by the president of the Club, the Governor of California, and the Executive Officer of the State Lands Commission, among others.

In finding section 30416, subdivision (c) to be inapplicable, the trial court found:  “That code section refers to an agreement as to the location of a boundary between two pieces of property.   Similarly, the reference to an exchange of lands refers to a transfer of one piece of land in exchange for another.   Other matters which may be included in boundary line agreements or land exchanges are not excluded from the jurisdiction of the Coastal Commission.   There was nothing in the documents presented to the court in this case which provided to the contrary.   Nothing in the documents precluded the Coastal Commission from exercising jurisdiction over the property in question.”   The court further stated at the hearing that the section meant a Coastal Commission permit was not required for the boundary agreement itself as opposed to subsequent development.   We agree with and adopt that reasoning.

The State Lands Commission has long been empowered to establish the boundary line for the tidelands through agreement, arbitration, or an action to quiet title.  (Pub.Resources Code, § 6357.)   Enactment of the Coastal Act was not intended to “increase, decrease, duplicate or supersede the authority of any existing state agency.”  (§§ 30401, 30400.)   Section 30416, subdivision (c) avoids such overlap by indicating that a Coastal Commission permit is unnecessary for boundary line activity by the State Lands Commission.   The section cannot be read to mean the State Lands Commission can assume the Coastal Commission's responsibility for regulating land use and development within the coastal zone.   Indeed, the State Lands Commission itself could not undertake a development without obtaining Coastal Commission approval.  (Pub.Resources Code, §§ 30111, 30600;  see City of Coronado v. California Coastal Zone Conservation Com. (1977) 69 Cal.App.3d 570, 138 Cal.Rptr. 241.)

Nothing in the settlement documents suggests that the involvement of the State Lands Commission obviated the need for a development permit from the Coastal Commission.

The Club emphasizes that the leases granted it “exclusive use” of the leased parcels and expressed the Club's intention to relocate two paddle tennis courts, install a flower bed, and use at least one and possibly three of the parcels for parking.   It further provided that the relocated paddle tennis courts and flower bed “shall be deemed approved by the State and City concurrently with the execution of this Agreement.”   Other provisions of the lease make it clear, however, that before beginning work on the leased parcels, the Club was “required to obtain, at its own expense, any necessary permits from the City and other appropriate public agencies for doing the work.”   The Coastal Commission permit was one such necessary permit.

IV

 Finally, the Club argues that the membership condition breaches the 1984 settlement agreement, as the state and city did not raise the issue at that time and granted an “exclusive” lease.

There is no question that the boundary line agreement was binding upon the state.  “Whenever the [State Lands Commission], pursuant to authority granted to it by law, enters into any agreement for the compromise or settlement of claims, the agreement shall be submitted to the Governor, and if approved by him shall thereupon, but not before, be binding upon the State and the other party thereto.”  (Pub.Resources Code, § 6107.)

We find that, just as in Burton v. Wilmington Parking Authority, supra, 365 U.S. at page 725, 81 S.Ct. at p. 862, the fact that the initial lease with the state lacked a nondiscrimination condition did not preclude subsequent imposition of such a condition when the omission was belatedly recognized.   Faced with the possibility of invidious discrimination on public property here, which the Club refused to deny, the Commission properly avoided placing the state's “power, property and prestige” behind the Club's reputed membership policy.

The judgment is affirmed.

FOOTNOTES

1.   The City of Santa Monica had already approved the development.   Its environmental impact assessment noted that the proposal would result in reduced off-street parking and that the impact of the expansion on existing recreational opportunities could be addressed by the Commission.

2.   Including local or regional offices of the Anti–Defamation League, American Jewish Committee, Asian–Pacific American Legal Center, Jewish Federation Council, National Association for the Advancement of Colored People, National Organization for Women, Mexican–American Legal Defense and Education Fund, The Urban League, and the American Jewish Congress.

3.   The Club complains that the wording of the condition in the findings adopted on August 30, 1985, is slightly different and more difficult to meet than the language in the proposed findings which had been circulated prior to the meeting.   The Club has no valid cause for complaint.   The wording was properly changed at the August hearing to more accurately reflect the transcript of the July hearing at which the actual motion of the Commission was passed.

4.   Four concurring justices thought a remand was unnecessary as there was sufficient evidence of state action regarding private groups.   Justice White, concurring in the judgment, stated:  “It may be useful also to emphasize that there is very plainly state action of some sort involved in the leasing, rental, or extending the use of scarce city-owned recreational facilities to private schools or to other private groups.”   (Gilmore, supra, 417 U.S. at p. 582, 94 S.Ct. at p. 2430.)

5.   It is interesting to note that Justice Douglas' dissent in Moose Lodge implicitly recognized the rationing concept.   According to the dissent, the state's licensing policy was actually restricting the ability of Blacks to obtain liquor while encouraging discrimination, since the quota of available liquor licenses had been filled for years, liquor was available for many hours during the week only at private clubs, and private clubs were unlikely to thrive without such licenses.  (Moose Lodge, supra, 407 U.S. at pp. 182–183, 92 S.Ct. at p. 1976.)

6.   California Constitution, article 1, section 7, subdivision (a) provides in pertinent part:  “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws;  provided, that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation․”

7.   We note, however, that Roberts recognized both a compelling state interest in eradicating discrimination and the state's broad authority to create rights of public access.  (468 U.S. at pp. 623–625, 104 S.Ct. at pp. 3252–53.)

WOODS, Presiding Justice.

McCLOSKY and GEORGE, JJ., concur.