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Deane Earl Ross, As Co-Trustee, Etc., et al v. California Coastal Commission et al

September 9, 2011

DEANE EARL ROSS, AS CO-TRUSTEE, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA COASTAL COMMISSION ET AL., DEFENDANTS AND APPELLANTS; MALIBU BAY COMPANY, REAL PARTY IN INTEREST AND APPELLANT.



(Los Angeles County Super. Ct. No. BS118974) APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed in part; reversed in part.

The opinion of the court was delivered by: Turner, P. J.

(reposted same date to correct caption and counsel listing)

CERTIFIED FOR PARTIAL PUBLICATION*fn1

I. INTRODUCTION

A governmental entity with beachfront property within its borders must adopt a local coastal program. A local coastal program or any amendments thereto are subject to approval by the California Coastal Commission (the commission). Public Resources Code section 21080.5, subdivision (a), which is part of the California Environmental Quality Act, permits the Secretary of the Resources Agency (the secretary) to certify an administrative agency's regulatory program. The secretary's certification extends to the preparation of written documentation supporting an environmental decision. Public Resources Code section 21080.5, subdivisions (d)(2)(B), (d)(2)(D), (d)(2)(F) and (d)(3), and California Code of Regulations, title 14, section 15252, subdivision (a) of the Guidelines for the Implementation of the California Environmental Quality Act (Guidelines) specify certain procedural substantive requirements for a certified program's environmental documentation with reference to a local coastal program as well as other planning decisions. Once the secretary certifies a local coastal program, written documentation supporting the commission's approval may be used in lieu of an environmental impact report. The secretary has certified the commission's review process for approving a local coastal program amendment.

The only undeveloped beachfront property (the subject property) in the City of Malibu (the city) on Broad Beach is owned by Malibu Bay Company (the developer). In order to facilitate the subdivision of the subject property, the city, among other things, adopted an amendment to its local coastal program. The commission, relying on a written staff report and testimony, certified the amendment to the city's local coastal program; albeit only after increasing the view corridors from Pacific Coast Highway to the beach. No environmental impact report was prepared.

In response, plaintiffs, Deane Earl Ross and the Ross Family Trust, filed a mandate petition challenging the commission's certification, with the aforementioned view corridor modification, of the city's local coastal program amendment. The trial court granted plaintiffs' mandate petition, in part, finding noncompliance with the procedural and substantive requirements imposed for environmental impact reports by the California Environmental Quality Act. The commission, the city and the developer appeal from that portion of the judgment partially granting plaintiffs' mandate petition. As to that portion of the judgment denying their mandate petition, plaintiffs have appealed.

In the published portion of this opinion, we conclude the commission reasonably resolved conflicting city development standards concerning buffers in environmentally sensitive habitat areas. Further, largely applying Public Resources Code section 21080.5, subdivisions (d)(2)(B), (d)(2)(D), (d)(2)(F) and (d)(3), and Guidelines section 15252, we resolve questions about the adequacy of the commission's review, approval and modification of the amendment to the city's local coastal program. We conclude the commission complied with Public Resources Code section 21080.5, subdivisions (d)(2)(B), (d)(2)(D), (d)(2)(F) and (d)(3), and Guidelines section 15252, subdivision (a). Thus, the mandate petition should have been denied in its entirety.

II. BACKGROUND

A. The Subject Property

The administrative record reveals that the developer owns a 2.08-acre beachfront parcel in the city, located at the eastern end of Broad Beach between the Pacific Coast Highway and the ocean. The subject property is approximately 200 feet wide at its northern boundary along the Pacific Coast Highway and narrows to approximately 186 feet at its southern border along the beach. The property is the last undeveloped parcel on Broad Beach in a developed residential area. There are beachfront residences on both sides of Broad Beach Road. The subject property is undeveloped except for a narrow access driveway, landscaping, and gated fencing at the northern end of the property. The subject property is zoned for single family-medium density (1 unit per 0.25 acre) in the city's local coastal program. The Local Implementation Plan, part of the city's local coastal program, required that all new lots in the single family-medium density zoning district have a minimum size of 0.25 acre and minimum lot width of 80 feet. (We will discuss later the roles of a Local Implementation Plan and local coastal program as part of the planning process under the California Coastal Act (Coastal Act).)

The subject property is part of a larger coastal dune ecosystem at Broad Beach. The coastal dune community fronting homes along Broad Beach is part of the southern foredunes, which are considered environmentally sensitive habitat areas in the city's local coastal program. (We will later clarify the concept of an environmentally sensitive habitat area.) Dunes range from lightly to heavily impacted with non-native plants between the beach and most of the homes. The subject property has been disturbed over time: beginning with the construction of the Pacific Coast Highway; its use as a boat storage and launching site; and then use as a construction staging ground.

B. The City Proceedings

On July 29, 2005, the developer applied for issuance of a coastal development permit, tentative parcel map, general plan amendment, and zoning text amendment. The developer sought to subdivide the 2.08 acre, 200-foot wide beachfront property into 4 separate lots. Each proposed lot was more than 0.50 acre with a lot width ranging from 48 to 50 feet. The 4 proposed lots did not meet the local coastal program's minimum lot width requirement of 80 feet for the single family-medium density zoning district. The developer also requested the Local Implementation Plan portion of the local coastal program be amended so as to create a new zoning district allowing for a lot width of 45 feet.

The city staff reviewed the developer's application and prepared a draft mitigated negative declaration to satisfy California Environmental Quality Act requirements. On June 8, 2006, the city published a notice of intent to adopt the draft mitigated negative declaration for the project. Plaintiffs, who own a parcel next to the subject property, and other residents objected to the project and the draft mitigated negative declaration. Plaintiffs argued that the proposed amendment to the local coastal program would constitute illegal "spot" zoning. They also argued that the project violated the local coastal program and land use plan regulations relating to the protection of environmentally sensitive habitat areas.

On September 5, 2006, the city planning commission conditionally approved a coastal development permit, proposed tentative parcel map and draft mitigated negative declaration. The planning commission recommended the city council approve the local coastal program, zoning text and map, and general plan map amendments. Plaintiffs appealed the city planning commission's decision to the city council arguing in part that the amendment constituted illegal "spot" zoning. In response, the city staff developed an alternative proposal to amend the Local Implementation Plan portion of the local coastal program to reduce the minimum lot width standard from 80 feet to 45 feet for all of the 733 beachfront parcels. The lots were all within the city's single family-medium density zoning district.

The city staff analyzed the single family-medium density zoned beachfront properties to determine if the new lot width standard would allow for an increase in development density. The city staff found of the 733 single family-medium density zoned beachfront parcels within its boundaries, the majority were non-conforming, with an average lot width of 50 feet. At Broad Beach, the average lot width was only 48 feet.

The city staff found only five parcels meeting both the lot size and width minimum requirement which could be subdivided under the new proposed lot width standard; one of which was the subject property. The other four parcels were already developed with single-family homes. Two of the four developed parcels were created by lot mergers or ties of three and four lots and could not be further subdivided under the local coastal program. The city staff determined only two developed parcels could potentially use the draft local coastal program amendment to create an additional lot each, if demolition of the existing homes and subdivision were requested. To subdivide, the owners of these two developed parcels would be required to apply for a coastal development permit and the city would need to conduct environmental review under the California Environmental Quality Act on those lots. The city staff determined the draft local coastal program amendment would have negligible direct and cumulative impacts on aesthetics, biological resources and land use and planning.

As part of the draft mitigated negative declaration, the city staff evaluated potential impacts to environmentally sensitive habitat areas. Dune environmentally sensitive habitat areas are not designated on the land use plan environmentally sensitive habitat areas overlay map. Thus, the city staff is required to conduct a site-specific biological study to determine the extent of dune environmentally sensitive habitat areas and their buffers on the property pursuant to Local Implementation Program sections 4.3.A and 4.6.1.G. The developer submitted a dune environmentally sensitive habitat areas restoration plan for the subject property by its biologist, Edith Read. The restoration plan would restore the dune features to within 20 feet of the stringline. The plan recommended a 10-foot seaward buffer from the stringline. The restoration plan specified: removal of non-native plants; planting of native dune plants; monitoring; and the designation of one dune access path for each of the proposed four newly created parcels.

In response to plaintiffs' contention the least damaging alternative would be to allow the site to be developed under existing zoning regulations that would allow for two (rather than four) buildable lots, the city staff conducted an alternatives analysis. The city staff compared view corridors and development footprints for one, two, three and four lots on the subject property. The city staff concluded that four lots resulted in the greatest viewing area, the smallest development footprint and the least environmentally damaging option.

On December 8, 2006, plaintiffs submitted additional comments and documents to the city including a report prepared by Rincon Consultants on the biological constraints to development of the subject property. The Rincon Consultants report found the property contained environmentally sensitive habitat areas. The Rincon Consultants report concluded development could adversely affect habitat for certain rare, threatened and endangered species, including the western snowy plover, a bird, and the globose dune beetle.

On January 22, 2007, the city council adopted an ordinance approving the local coastal program amendment conditioned on the commission's certification. The city council also: adopted a resolution denying plaintiffs' appeal; adopted a revised mitigated negative declaration; and conditionally approved the tentative parcel map and the coastal development permit for the subject property. On March 6, 2007, the city submitted the proposed local coastal program amendment and related documents to the commission for certification of the local coastal program amendment.

C. The Commission Proceedings

1. The commission staff report

On May 29, 2008, the commission staff issued a report. The report recommended the commission approve the city's proposed local coastal program amendment with suggested modifications. The report also recommended that the commission adopt a modified version of the local coastal program amendment which would add a new "Malibu Bay Company Overlay District" to the Local Implementation Plan. The new overlay district would include conditions for view corridors, dune restoration, rear setback and an open space conservation easement.

The commission staff report discussed the city staff's review of the 733 single family-medium density zoned beachfront lots. The commission staff noted besides the subject property, only two other lots could feasibly be subdivided to create one additional parcel each, if demolition of the existing homes and subdivision were requested. The commission staff report stated that subdivision of the subject property as a result of the local coastal program amendment would not create additional lots significantly smaller than the average size of surrounding parcels. The commission staff report concluded reducing the minimum lot width standard in the single family-medium density beachfront zone to facilitate a future residential subdivision on the subject property would not conflict with Public Resources Code section 30250, subdivision (a)*fn2 as incorporated into the city's land use plan with the following qualification. That qualification is that the anticipated future development would comply with Public Resources Code section 30250, subdivision (a) so long as it did not have significant individual or cumulative adverse impacts on coastal resources.

The staff report analyzed the impact of the proposed development on the ocean views from the public roadways. The commission staff report noted, "[The local coastal program] view corridor provision requires that buildings occupy a maximum of 80 percent of a site's lineal frontage, while the remaining 20 percent of the lineal frontage is maintained as a contiguous view corridor, except on lots 50 feet or less in width, in which case the view corridor may be split into two 10 percent view corridors on either side of the residence." Thus, reducing the minimum lot width standard proposed in the city's local coastal program amendment would increase the number of smaller-sized parcels which in turn would create smaller view corridors. The commission staff report proposed that "[n]o less than 20 percent of the linear frontage of each created parcel of the subdivision" be maintained as one contiguous public view corridor. In addition, the commission staff report proposed mitigation measures including removal of: fencing that is not visually permeable; vegetation over two feet in height; and existing obstructions between Pacific Coast Highway and the on-site access road.

The commission staff report also analyzed impacts to biological resources on the subject property, including dune environmentally sensitive habitat areas. The commission staff report reviewed various biological reports of the on-site dune community submitted by the developer's consultants, surveys of special status species on the subject property and a May 15, 2008 memorandum from the commission staff biologist, Dr. Jonna Engel. Dr. Engel disagreed with the developer's two consultants who both stated that a portion of the dunes on the subject property, referred to as the primrose/lupine area, was previously disturbed and should not be considered as an environmentally sensitive habitat area. (Primrose and lupine are wildflower species.) Dr. Engel concluded the primrose/lupine area should be included as a dune environmentally sensitive habitat area. She explained dune hummocks and mounds dominated by native vegetation continue to persist in the area despite the intensive disturbance history of the site. Dr. Engel believed the primrose/lupine area should be considered an environmentally sensitive habitat area under the Coastal Act given the rarity of dune habitats across the state and the ease with which they are degraded by human activity. Based on the reports of the developer's consultants and Dr. Engel's memorandum, the commission staff report concluded the southern foredune community, including the lupine/primrose area on the subject property, met the Coastal Act definition of an environmentally sensitive habitat area.

The commission staff report also reviewed the biologists' opinions on the necessity of a buffer between the environmentally sensitive habitat areas and any development on the subject property. In an April 10, 2008 letter to the commission, the city's biologist, Dave Crawford, concurred with the conclusions of the dune habitat assessment by one of the developer's biologists. Mr. Crawford stated that he and the city's environmental review board have established a standard buffer policy for dune habitat on beachfront property. The standard buffer policy requires development go no further seaward than the stringline in conjunction with a dune restoration plan. This was because the remnant dunes in Malibu are highly disturbed and have limited function and value. This policy has been in effect for numerous projects along Broad Beach Road. According to Mr. Crawford, "The majority of the dunes remaining in Malibu support predominately non-native and invasive ice plant, that not only out-competes (and often eliminates) the native dune vegetation, but over-stabilizes the dunes, thus resulting in an unnatural condition that prevents the natural 'movement' of the dunes and reduces their value as native habitat." By allowing development consistent with the stringline standard, Mr. Crawford explained the city can require projects to incorporate dune restoration plans that over time will improve the remnant dune biological functions and values.

Dr. Engel disagreed with the opinion of the developer's consultants and Mr. Crawford that no buffer was necessary inland from the stringline. She noted: "Generally, the [c]ommission protects environmentally sensitive habitat, such as southern foredunes, with buffers or set-backs. Set-backs are necessary to insure that development will not significantly degrade the [environmentally sensitive habitat areas]." Dr. Engel recommended a 25-foot minimum buffer between the dune environmentally sensitive habitat areas and development. She stated, "This distance is consistent with other [c]ommission dune buffer determinations and with the United States Department of the Interior, Fish and Wildlife Service's recommendation for this site documented in their April 18, 2007 letter as well as in person . . . ." (Fn. omitted.) In the same letter, the United States Department of the Interior, Fish and Wildlife Service staff concurred with the developer that development on the subject property "would not result in the take of the federally threatened" western snowy plover.

The commission staff report rejected the no buffer recommendation made by the city's biologist, Mr. Crawford, and the developer's consultants. But, the commission staff report also did not accept Dr. Engel's 25-foot buffer recommendation. The commission staff report found that a five-foot buffer from designated environmentally sensitive habitat areas "would be both equitable and protective of the biological integrity of the on site dune [environmentally sensitive habitat areas]" especially after implementation of the dune restoration plan. The commission staff report explained: "Given the proximity of dune [environmentally sensitive habitat areas] on the property and assuming a [25-foot] buffer is applied, it is possible to site future development for four separate parcels without building in [environmentally sensitive habitat areas] or [environmentally sensitive habitat areas] buffer. This is consistent with the land division and [environmentally sensitive habitat area] policies of the Malibu [land use plan]. However, because dune [environmentally sensitive habitat areas are] situated essentially up to the 'stringline' across about three quarters of the property, a [25-foot] buffer would significantly reduce the amount of buildable area for most of the newly created parcels. The [c]ommission recognizes that the subdivision will accommodate infill development and it is important to consider what would be both equitable and most protective of coastal resources. If [environmentally sensitive habitat areas] and a [25-foot environmentally sensitive habitat areas] buffer were strictly delineated for siting future development of newly created parcels, the result would be much smaller available development area than is allowed by the existing development pattern along this densely developed stretch of Broad Beach. However, providing no buffer in exchange for restoration (as was determined sufficient by the [c]ity and the applicant's biological consultants) is inconsistent with [Land Use Plan] section 3.23, which requires buffer areas around [environmentally sensitive habitat areas] to serve as transitional habitat and provide distance and physical barriers to human intrusion in order to preserve the biological integrity of the [environmentally sensitive habitat areas]."

The commission staff report also analyzed view corridor and development alternatives with 50, 100 and 200-foot lot widths. The commission staff report stated: "Future subdivision of the subject property as a result of the [local coastal program amendment] request will result in four approximately [50-foot] wide parcels with only a [5-foot] view corridor on either side of each parcel. Compared to two [100-foot] wide lots with [20-foot] view corridors each, or one [200-foot] wide lot with a [40-foot] view corridor that is currently allowed under the [local coastal program], reducing the minimum lot width standard to accommodate the subdivision will adversely impact views of the beach and ocean from Pacific Coast Highway." The developer proposed, and the commission staff report accepted, a contiguous 20 percent (10-foot wide) view corridor on each side of the four newly created parcels. Each view corridor would be contiguous with one other view corridor. This would result in two 20-foot wide view corridors across the entire 200-foot wide property. This arrangement would replace several 10-foot wide corridors. The commission staff report found the developer's proposal would provide maximum protection of visual resources while still accommodating subdivision of the subject property.

2. The 13-day public notice and comment

On May 29, 2008, the commission issued a public notice of a June 11, 2008 public hearing in Santa Rosa to all relevant parties. The public notice stated that commission staff recommended the approval of the city's local coastal program amendment with modifications. The staff report and notice were posted on the commission's Web site the same day. Plaintiffs obtained a copy of the staff report from the commission's Web site on May 30, 2008. On June 6, 2008, plaintiffs submitted written comments on the local coastal program amendment.

3. The commission staff report addendum

On June 9, 2008, the commission staff issued an addendum to the prior May 29, 2008 staff report. The addendum made minor changes to the prior commission staff report and responded to public comments including those of plaintiffs. The addendum noted, "The proposed [45-foot] width will result in lots that are substantially similar to the existing pattern of development along Broad Beach." Although the 45-foot width standard would apply to all beachfront parcels zoned single-family medium density, the subject property was the only vacant site that would be affected by the proposed modification of the lot width standard. Two other properties could be affected by the new 45-foot width standard only if the existing development were to be demolished. The June 9, 2008 addendum further stated, "The overlay district for [the subject property] reflects the landowner's agreement to incorporate more strict development standards regarding view corridors, habitat restoration and open space easements than required by the Malibu [local coastal program]." The addendum responded to comments relating to the environmentally sensitive habitat areas and the potential environmental impacts of the project. The addendum stated that the review of the environmentally sensitive habitat areas has been conducted to a level of specificity that would normally be carried out at a coastal development permit juncture, rather than a local coastal program approval stage.

The addendum also addressed comments regarding view resources by recommending the revision of the city's Local Implementation Plan section 6.5. The commission staff recommended amending the city's Local Implementation Plan section 6.5 which is labeled, "Development Standards" to include a new provision mandating broader view corridors. The new Local Implementation Plan section 6.5(E)(6) provides: "New subdivisions of beachfront residential parcels, where structures cannot be sited or designed below road grade, shall ensure no less than 20% of the lineal frontage of each newly created parcel shall be maintained as one contiguous public view corridor (even if the resultant lots are 50 feet or less in width). The view corridors of the newly created parcels shall be contiguous to the maximum extent feasible in order to minimize impacts to public views of the ocean. This requirement shall be a condition of permit approval for the subdivision of a beachfront property." This proposed revision guaranteed 20 percent of the lineal frontage of each newly created parcel would be maintained as one contiguous public view corridor even if the resultant lots were 50 feet or less in width.

The addendum also attached: written disclosures of ex-parte communications received by certain members of the commission; a June 9, 2008 report from one of the developer's consultants entitled "Second Botanical Evaluation of Primrose/Lupine Area"; and a June 9, 2008 supplemental memorandum from Dr. Engel. In her supplemental memorandum, Dr. Engel clarified her dune landscape terminology and the definition of environmentally sensitive habitat areas in the Coastal Act. She also explained her reasons for including the primrose/lupine area as a component of overall dune environmentally sensitive habitat areas. Dr. Engel again recommended a 25-foot buffer be imposed. Dr. Engel agreed that the developer had proposed to restore the disturbed southern foredune environmentally sensitive habitat areas and had incorporated a number of best management practices into its design. She agreed these measures would help maintain the ecological functions of the southern foredune community. But Dr. Engel concluded these measures did not vitiate the need to set back development from the very edge of the environmentally sensitive habitat areas.

4. The commission hearing and decision

At the June 11, 2008 meeting, the commission considered the city's proposed local coastal program amendment. The commission heard testimony concerning the city's local coastal program amendment from several speakers including representatives for: plaintiffs; the city; the developer; and the commission staff including Executive Director Peter Douglas and Dr. Engel. Dr. Engel again recommended a 25-foot buffer for environmentally sensitive habitat areas.

During the commission's deliberations, Commissioner Ben Hueso expressed concern that the local coastal program amendment might cause a change in residential density that had not been subject to environmental review. Mr. Douglas replied that there were only two other properties that might be affected; thus, the commission staff did not think the local coastal program amendment would increase density, either individually or cumulatively within the city. As to the buffer for environmentally sensitive habitat areas, Commissioner Mary Schallenberger questioned what fair and equitable meant in the context of the Coastal Act. Commissioner Schallenberger stated that in the future when there is a single lot left in any local government jurisdiction, the commission might not be able to utilize the best science as recommended by its biologist. Instead, she indicated the commission may have to compromise and impose conditions consistent with existing permits. In response, Mr. Douglas stated that the issue of fairness and equity is always considered by the commission and is applied from time to time where other properties or areas are similarly situated. Mr. Douglas explained the commission staff's rationale: "[I]n this case, when you look at the other approvals in the City of Malibu, that there were no buffer setbacks required before, we didn't [appeal] those approvals in the past, and therefore this is a case of first impression. So, we felt that treating this party, in as much similarly to others situated in the same way made sense, but the additional factor was that the restoration that we are getting here was of such importance that we felt both the equity issues, in terms of how others had been treated-and this is the first time that we are requiring this kind of a buffer-and the restoration component warranted the requirement of a 5-foot buffer to avoid a direct impact on the [environmentally sensitive habitat areas]."

At the conclusion of the June 11, 2008 hearing, the commission adopted the staff report. The commission conditionally certified the local coastal program amendment with the staff's recommended modifications. On November 10, 2008, the city approved an ordinance adopting the local coastal program amendment with the commission's proposed modifications. On January 7, 2009, the local coastal program amendment became effective when the commission ...


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