TRIAL JUDGE: Honorable John T. Feeney TRIAL COURT: Humboldt County Superior Court Super. Ct. No. CV100085
The opinion of the court was delivered by: Marchiano, P.J.
CERTIFIED FOR PUBLICATION
A developer planned an extensive marina project on a 43-acre site near Humboldt Bay in the City of Eureka (City). This case concerns the jurisdiction of the California Coastal Commission (Commission) over Phase 1 of the proposed mixed-use development project. The City, having issued nuisance abatement orders concerning the site, finally issued a coastal development permit (CDP) for Phase 1. The CDP has been appealed to the Commission. Plaintiff Citizens For A Better Eureka (CBE) is challenging the Commission's appellate jurisdiction over the CDP.
At issue is Public Resources Code section 30005, subdivision (b),*fn1 which states no provision of the California Coastal Act of 1976 (§ 30000 et seq.; Coastal Act) "is a limitation . . . . (b) On the power of any city . . . to declare, prohibit, and abate nuisances." We interpret this statute to authorize developments that are confined to nuisance abatement to proceed without a CDP. Where, as here, the development includes, but is not limited to, nuisance abatement, a CDP is required. Because a CDP is required, the Commission has jurisdiction to determine the CDP appeal. Consistent with these conclusions, we affirm the judgment denying CBE's petition for writ of mandate that seeks to prevent the appeal from going forward.
A CDP is generally required for a development within the coastal zone as defined in the Coastal Act. (§§ 30103, subd. (a), 30600, subd. (a).) A local government within the coastal zone is required to prepare a local coastal program (LCP) for the portion of the coastal zone within its jurisdiction. (§ 30500, subd. (a).) When the Commission has certified an LCP and actions to implement the LCP have become effective, authority to issue CDP's within the certified area is delegated from the Commission to the local government, subject to appeals to the Commission. (§ 30519, subd. (a).)
Local government actions on CDP applications for certain types of developments, e.g., those within 100 feet of any wetland, are appealable to the Commission (§ 30603, subd. (a)), and the Commission has appellate jurisdiction to determine whether a CDP is consistent with the LCP and coastal access policies (§ 30603, subd. (b)). In an appeal, the Commission first determines whether a substantial issue as to such consistency has been raised. (§ 30625, subd. (b).) If a substantial issue is presented, the Commission reviews the CDP application de novo. (§ 30621, subd. (a); Cal. Code Regs., tit. 14, § 13115, subd. (b).)
B. Factual and Administrative Summary
The development site consists of 11 parcels, four of which are known as the "Balloon Track" because locomotives were formerly brought there on a circular track shaped like a balloon. The Balloon Track was used as a railroad switching, maintenance, and freight yard from the 1880's to the 1980's. Some structural foundations and railroad tracks remain, but the site has been vacant since the late 1980's.
CUE VI, LLC (hereafter CUE [standing for "Clean Up Eureka"]) acquired the property in 2006, and proposes to develop it as a mixed-use retail, housing, and open space complex that includes 313,500 square feet of retail space, 104,000 square feet of office space, 72,000 square feet of multi-family residential housing, 70,000 square feet of light industrial space, 14,000 square feet of restaurant space, 12,500 square feet of museum space, 1,590 parking spaces, and an 11.89-acre wetland reserve. The development, called the Marina Center project, will proceed in phases, with Phase 1 limited to site remediation and wetland restoration. The City approved a CDP for Phase 1 in November 2009.
The city council resolution approving the CDP stated that soils at the site were contaminated with petroleum, lead, copper, and arsenic, that overgrown vegetation at the site was creating health and fire hazards, and the site was littered with rubbish. These conditions caused the City to issue 13 nuisance abatement orders for the property from 2000 to 2008, and "continue[d] to threaten to create a public nuisance" under various sections of the Eureka Municipal Code. The North Coast Regional Water Quality Control Board (RWQCB) approved a Supplemental Interim Remediation Action Plan (SIRAP) that responded to a cleanup and abatement order the RWQCB issued for the property in 2001. "The SIRAP includes a plan for general site clearing and debris removal, a focused soil remediation of areas with contaminated soil, a restoration of the wetlands area, and a grading of the overall site." "Exercising its power to declare and abate nuisances in keeping with section 30005," the CDP resolution ordered CUE to abate the nuisance at the site by implementing the SIRAP.
Findings attached to the resolution state that 5.6 acres of existing wetlands will be filled in during Phase 1, and CUE must "ensure that functions and values of replacement wetlands are equal to or greater than the functions and values of the wetlands affected by the project . . . ." Phase 1 will include creation of a permanent wetland reserve surrounding Clark Slough, which bisects the southwest corner of the property. Areas on both sides of Clark Slough "were once marsh wetlands that were filled in, primarily with bay dredge spoils, and subsequently developed. . . . Restoration plans for the site include the restoration of some of the filled-in areas to their former wetlands state." According to the ...