Is ESHA a Death Knell?

Is ESHA a Death Knell? Using the Law to Make Your Case for Approval Presented by John J. Flynn III April 30, 2010 Copyright, 2009 Nossaman LLP. All Rights Reserved.

Preliminary Considerations Before you think great thoughts, read the statute. - W. Bagley 2

Are You Talkin to Me? Good question: Who s your target audience? - Staff - Commission - Commission Counsel - Media (the public) - The Court 3

Define the Objective Intimidation Persuasion Exhaustion Litigation All the above Language, please 4

No ESHA in the LCP/LUP: Am I Good to Go? Can the Coastal Commission designate ESHA without amending the LCP/LUP? That depends LT-WR, L.L.C. v. California Coastal Com. (2007) 152 Cal.App.4th 770 / Douda v. California Coastal Com. (2008) 159 Cal.App.4th 1181 Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402 5

Three Challenges Possible 1. Jurisdictional: Did the Commission have the legal authority to make an ESHA determination? 2. Substantial Evidence: Is it really ESHA? 3. Law: Does the presence of ESHA stop my project? 6

Read the Statute : 30240 Section 30240: Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas. Development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat and recreation areas. (Emphasis added.) 7

Are There Any Legal Arguments for Development in an ESHA? There are at least five arguments available for approval of a project in an ESHA: 1) The project is resource-dependent; 2) The resource-dependent restriction does not appear in the LCP; 3) The proposed project poses a conflict between two Coastal Act policies, which justifies the application of section 30007.5 (balancing of conflicting Coastal Act policies) to support approval; 4) Even if there is no conflict of Coastal Act policies, enforcement of the section 30240 restrictions not necessary to achieve section 30001.5 objectives; and 5) Strict application of the resource-dependent restriction will result in an inverse condemnation, in violation of section 30010 of the Coastal Act. 8

Is My Project Resource-Dependent? Under section 30240 of the Coastal Act, development in an ESHA is limited to resource-dependent uses. What is a resource-dependent use? Cases? Administrative precedents? Commission guidance documents? 9

Is My Project Resource-Dependent? (cont d) In McAllister v. California Coastal Commission (2008) 169 Cal App. 4 th 912, the Court rejected the landowners argument that, because of the habitat restoration required as mitigation, the project was a habitat restoration project rather than a residential project, and therefore qualified as a resourcedependent use. Whether a use is resource-dependent, according to the Court, depends on its primary purpose, not on its mitigation plan. 10

What If There Is No Resource- Dependent Restriction in the LCP? Referring to a planned residential project to be situated in an ESHA, even though it did not appear from the Monterey County LCP that the resource-dependent restriction had been incorporated into the text of the LCP, the McAllister Court held: [T]he county was aware that the Coastal Act established the minimum standards and policies for local coastal programs and knew that it was constrained to incorporate [into the LCP] [the resource-dependent restriction] in Section 30240(a). Accordingly, we assume that, as required, the county intended to and did incorporate those restrictions. 11

What If There Is No Resource-Dependent Restriction in the LCP? (cont d) Likewise, the Court also assumed: [I]n certifying the Monterey County Local Coastal Program, the Commission understood and found that it conformed to i.e., incorporated the minimum policies and standards of the Coastal Act, including the development restrictions in Section 30240(a). 12

What About Balancing? The Legislature further finds and recognizes that conflicts may occur between one or more policies of the division. The Legislature therefore declares that in carrying out the provisions of this division such conflicts be resolved in a manner which on balance is the most protective of significant coastal resources. In this context, the Legislature declares that broader policies which, for example, serve to concentrate development in close proximity to urban and employment centers may be more protective, overall, than specific wildlife habitat and other similar resources policies. (30007.5, emphasis added.) 13

What About Balancing? (cont d) Are all the balancing policies in Chapter 3 of the Coastal Act? Where the commission or any local government in implementing the provisions of this division identifies a conflict between the policies of this chapter, Section 30007.5 shall be utilized to resolve the conflict and the resolution of such conflicts shall be supported by appropriate findings setting forth the basis for the resolution of identified policy conflicts. ( 30200, emphasis added.) 14

What About Balancing? (cont d) What are the Chapter 3 policies? 30210 (Public Access) 30220 (Recreation) 30230 (Marine Resources [Water Quality @30231; Wetlands @30233]) 30240 (Land Resources [ESHA]) 30250 (Development) 30260 (Industrial Development) 15

Don t Forget Bolsa Chica Bolsa Chica Balancing Lessons: Habitat values are site-specific and are not transferable. Section 30007.5 is not available unless advancement of one Coastal Act policy requires the compromise of another. 16

Does the Commission Balance? How? Balancing and CCC Precedent: During the approval process for the Foothill South Extension, an intense debate took place between the Transportation Corridor Agency and Coastal Commission Staff over consistency of the Foothill South Extension with the Coastal Act. TCA argued that 30007.5 balancing should be applied in support of a consistency finding. Ralph Faust, former Coastal Commission Counsel, submitted a memorandum (attached) to the Commission, in which he disputed the TCA s position on past balancing by the Coastal Commission. 17

Does the Commission Balance? How? (cont d) Four principles emerged from the Faust analysis: (1) A project benefit, in order to be counted for balancing, must inhere in the nature of the project. (2) The conflict between Coastal Act policies must arise from the development proposal itself. (3) Doubts about balancing should be resolved in favor of allowing completion of later phases of already-approved projects. (4) Benefits must be to coastal - not inland - resources. 18

Recent Coastal Commission Balancing Decisions Decision Year Project Description Sections Balanced LCPA No. 2-06B (Carlsbad) 2006 Zone change for residential development 30240 (ESHA) and 30250 (concentration of development CDP No. 1-06-033 (Tilch) 2006 Replace falling onsite sewage wastewater disposal system for residence 30233 (wetlands) and 30231 (water quality) UCSB LRDP Amendment 1-06, NOISE 1-06, and LDP No. 4-06-097 2006 Campus housing 30233 (wetlands) and 30250 (concentration of development) CC-004-05 (North County Transit District) 2005 Construction of second railroad tracks 30233 (wetlands), 30240 (ESHA) and 30231 (water quality), 30252 (public access), and 30253 (air quality and energy conservation) LCP No. 1-03 (Dana Point) 2004 Residential, commercial, visitor-serving development, parks, trail and open space 30240 (ESHA) and 30210-31214 (public access), 30231 (water quality), 30250 (concentration of development) LCPA No. 1-03B, CC-007-003 (Carlsbad) 2003 Habitat Management Plan 30240 (ESHA) and 30250 (concentration of development) LCP Maj. Admt No. 3-01 (San Luis Obispo) 2002 Sewage Treatment Plant 30240 (ESHA) and 30231 (water quality) LCPA OXN-MAJ-1-00 (Oxnard Northshroe) 2002 Site remediation, residential development, and resource protection area 30233 (wetlands) and 30231 (water quality) CDPM 9-98-127 (City of San Diego) 2000 Construction of freeway segment of SR-56 30233 (wetlands) and 30231 (water quality) Appeal No. AS-IRC-99-301 (Irvine Community Development Co.) 2000 Mass grading and backbone infrastructure for future residential and recreational development 30233 (wetlands) and 30231 (water quality) CPDM 1-98-103 (O Neil) 1999 Construction of barn for dairy cows near stream 30233 (wetlands) and 30231 (water quality) CC-64-92/5-92-232 TCA 1993 Construction of San Joaquin Hills Transportation Corridor Toll Road (SR 73) 30233 (wetlands) and 30210-30213, 30252 and 30253 (public access) 19

What If I Can t Find a Policy Conflict? Section 30512.2(b): The following provisions shall apply to the commission s decision to certify or refuse certification of a land use plan pursuant to Section 30512: (b) The Commission shall require conformance with the policies and requirements of Chapter 3 (commencing with Section 30200) only to the extent necessary to achieve the basic state goals specified in Section 30001.5. (Emphasis added.) 20

What Are the Basic State Goals of the Coastal Act? The Legislature further finds and declares that the basic goals of the state for the coastal zone are to: a) Protect, maintain, and where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources. b) Assure orderly, balanced utilization and conservation of coastal zone resources taking into account the social and economic needs of the people and state. c) Assure priority for coastal-dependent and coastal-related development over the development on the coast. d) Encourage state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development for mutually beneficial uses, including educational uses, in the coastal zone. ( 30001.5, emphasis added.) 21

What About CDPs? These provisions demonstrate that the Legislature intended to curb the Commission s ability to champion its own agenda over the decisions made by local governments, and over the constitutional rights of property owners who live in a coastal zone. Thus, in reviewing an application for a coastal development permit prior to the certification of a local coastal program, an issuing agency should deny a permit based on a previously designated environmentally sensitive habitat area only when necessary to achieve the Legislature s basic goals. (Douda v. Cal. Coastal Com. (2008) 159 Cal.App.4 th 1181,1195, emphasis added.) 22

Questions? John J. Flynn III Nossaman LLP 18101 Von Karman Avenue Suite 1800 T 949.833.7800 F 949.833.7878 jflynn@nossaman.com The information contained herein does not constitute a legal opinion and should not be relied upon by the reader as legal advice or be regarded as a substitute for legal advice. 23