California Court of Appeals, Fourth District, First Division
Order Date 7/10/13.
APPEALS from judgments of the Superior Court of San Diego County, Nos. 37-2010-00099827-CU-WM-CTL, 37-2010-00099878-CU-WM-CTL Joan M. Lewis, Judge. As to No. D060260, affirmed in part; reversed in part; remanded with directions; as to No. D060369, held in abeyance.
Kamala D. Harris, Attorney General, John A. Sauerenman, Senior Assistant Attorney General, Jamee Jordan Patterson, Deputy Attorney General for Defendant and Appellant California Coastal Commission in No. D060260.
Rutan and Tucker, Anthony Patrick Munoz, John A. Ramirez and Jennifer J. Farrell for Plaintiff and Respondent in No. D060260, and for Defendant and Appellant in No. D060369.
Manatt Phelps & Phillips, George Michael Soneff, Michael M. Berger and Benjamin G. Shatz for Real Party in Interest and Respondent in No. D060260, and Real Party in Interest and Appellant in No. D060369.
McDermott Will & Emery, Jennifer N. Kalnins-Temple, Daniel R. Foster, David M. Beckwith; Angela Tiffany Howe for Plaintiff and Respondent in No. D060369.
ORDER DENYING REHEARING AND MODIFYING OPINION
The petitions for rehearing are denied. Justices O'Rourke and Aaron concur in the denial. Justice Benke would grant.
The opinion filed herein on June 17, 2013, is modified as follows:
1. On page 7 of the dissenting opinion, delete the third sentence of the first full paragraph.
2. On page 7 of the dissenting opinion, insert the following new paragraph after the first full paragraph:
There of course can be no serious question that the majority opinion in fact gives the Commission power to determine the validity of nuisance ordinances. Section III.A.4. of the majority opinion specifically states that on remand the trial court is directed to determine if the City was acting within the scope of section 30005, subdivision (b) in adopting its nuisance ordinance, and"[i]n making this determination, the trial court shall decide whether the City's enactment of the Nuisance Abatement Ordinance was a pretext for avoiding the requirements of its local coastal program and, if the court determines that there is an actual nuisance, whether the development mandated by the Nuisance Abatement Ordinance exceeds the amount necessary to abate that nuisance." (Maj. opn. ante, at p. 53, italics added.) The majority opinion goes on to say: "If the court determines that the City has established that it did not enact the ordinance as a pretext...." (Maj. opn. ante, at p. 54, first italics added, second italics in original.) Nothing on the face of the Coastal Act places such a burden on a municipality, and important principles of municipal and constitutional law suggest that any burden with respect to the validity of a municipal nuisance ordinance rests with the Commission, not the municipality.
There is no change in the judgment.
BENKE, Acting P. J.
These appeals stem from two consolidated cases related to a project to develop a large parcel of coastal land (the Project) within the City of Dana Point (the City). The parcel on which the Project is located is subject to the California Coastal Act of 1976 (Coastal Act) (Pub. Resources Code, § 30000 et seq.) The Project includes approximately 125 luxury home sites on an oceanfront slope. The home sites are to be situated between a newly created public park at the top of the slope and a newly dedicated public beach at the bottom of the slope. Public access trails run through the residential portion of the Project, linking the public park at the top of the slope with the beach below.
As portions of the Project neared completion, including the new public park at the top of the slope, the City adopted an ordinance that mandated limited hours of operation for the trails at the Project site that traverse the partially completed residential subdivision, and the installation of pedestrian gates on those trails. Several individuals and an entity filed administrative appeals of the ordinance with the Commission (the Commission). In ruling on the appeals, the Commission concluded that the limited hours of operation for the trails and the gates require a coastal development permit under the Coastal Act (§ 30600, subd. (a)).
The dispute in this case centers around whether the installation of the gates and the limited hours of operation for the trails fall within the City's nuisance abatement powers under the Coastal Act and therefore does not require a coastal development permit, or instead, exceeds those powers and thus requires that the City seek a coastal development permit in order to undertake such development.
The City filed an action (City's Case) seeking to set aside the Commission's decision and restrain any future attempt on the part of the Commission to exercise jurisdiction over the development mandated by the ordinance. The City contended that the Commission lacked jurisdiction over its actions because the limited hours of operation and installation of the gates were required to abate nuisance conditions at the site, and the Coastal Act provides that no provision of the Act is a limitation on "the power of any city or county or city and county to declare, prohibit, and abate nuisances." (§ 30005, subd. (b)). The City argued that the statute deprived the Commission of all jurisdiction under the Coastal Act to prohibit development mandated by the nuisance abatement ordinance for the sole reason that the City claimed that it was acting pursuant to section 30005, subdivision (b). The City sought declaratory relief, including declarations that "the Coastal Commission lacks jurisdiction under Coastal Act section 30005[, subdivision] (b) to place limitations on the enforcement of the Nuisance Abatement Ordinance, " and that "the adoption of the Nuisance Abatement Ordinance did not require any City 'coastal development permit application.' " The City also requested that the trial court enjoin the Commission "from undertaking any enforcement action arising from said ordinance." In sum, the City asked the trial court to rule that the City was legitimately exercising nuisance abatement powers under section 30005, subdivision (b) and that the Commission therefore lacked jurisdiction to restrict any action that the City might take pursuant to those powers.
Surfrider Foundation (Surfrider), a nonprofit environmental organization, filed a separate action (Surfrider Case) against the City in which Surfrider claimed that the Commission had jurisdiction over the development mandated by the ordinance, and that the development violated the Coastal Act and various land use regulations governing the Project, including the City's local coastal program (see § 30500). Surfrider also claimed that the City lacked a rational basis for adopting the ordinance and that the ordinance impinged on various state and federal constitutional rights of the public.
In the City's Case, the trial court invalidated the Commission's determination that the development mandated by the ordinance required a coastal development permit. The trial court reasoned that section 30005, subdivision (b) divests the Commission of jurisdiction over such development, "regardless of the merits" of the validity of the City's nuisance declaration. The court granted the City's request for declaratory relief, and stated, "[T]he... Commission lacks jurisdiction under Coastal Act section 30005[, subdivision] (b) to place limitations on the enforcement of the Nuisance Abatement Ordinance, " and "the adoption of the Nuisance Abatement Ordinance did not require any city 'coastal development permit application.' " The court also issued a judgment and a writ of mandate against the Commission. The Commission filed an appeal in the City's Case.
In the Surfrider Case, the trial court concluded that the City had acted arbitrarily and capriciously in the manner by which it declared a nuisance at the Project. The court entered a judgment stating that the ordinance was "invalid and void insofar as there was no properly declared nuisance and/or the manner of abatement was excessive." Both the City and Headlands appealed in the Surfrider Case.
In its appeal, the Commission claims that it had administrative appellate jurisdiction pursuant to section 30625 to consider the appeals of the City's ordinance. Section 30625 provides that "any appealable action on a coastal development permit or claim of exemption for any development by a local government... may be appealed to the commission by an applicant, any aggrieved person, or any two members of the commission." The Commission also contends that the trial court erred in interpreting section 30005, subdivision (b) as restraining the Commission from taking future actions with respect to the development mandated by the ordinance.
We conclude that the trial court properly invalidated the Commission's determination that the development mandated by the ordinance requires a permit. The Commission lacked administrative appellate jurisdiction under section 30625 to consider the appeals of the ordinance because a municipality's enactment of an ordinance does not amount to an "appealable action" (§ 30625, subd. (a)) from which an administrative appeal to the Commission may be taken. However, we also conclude that the trial court erred in restricting the Commission from exercising jurisdiction over the development mandated by the ordinance without first determining in the City's Case whether the City was acting properly within the scope of its nuisance abatement powers reserved to it pursuant to section 30005, subdivision (b). Because the City asked the trial court to order the Commission to halt any action that would interfere with the City's nuisance abatement measures, the City was required to establish that it was exercising that authority legitimately. More specifically, we hold that before a municipality may obtain a writ of mandate restraining the Commission from exercising jurisdiction over development that the municipality has authorized pursuant to section 30005, subdivision (b), the municipality must demonstrate that it has exercised its nuisance abatement powers in good faith, in that the municipality has not utilized these powers as a pretext for avoiding its obligations under its own local coastal program. We remand the matter to the trial court for a determination of whether the City properly exercised its nuisance abatement powers in this case, in light of our interpretation of section 30005, subdivision (b).
The trial court's conclusion in the Surfrider Case that the City acted arbitrarily and capriciously in enacting the ordinance suggests that on remand in the City's Case, the court is likely to conclude that the City's claim that it enacted the ordinance in order to abate a nuisance is pretextual, and thus, that the Commission may exercise jurisdiction over the gates and hours of operation on the trails. Any future proceedings by the Commission against the City that are authorized by the trial court's ruling on remand in the City's Case are likely to moot the constitutional issues raised in the Surfrider Case. For this reason, we conclude that the appeals in the Surfrider Case should be held in abeyance pending a final resolution of the issues in the City's Case.
FACTUAL AND PROCEDUAL BACKGROUND
A. The Project
In 2002, the City proposed amending its local coastal program to allow the development of the Project.
In January 2004, after requiring modifications to bring the local coastal program amendment into conformity with the Coastal Act, the Commission approved the local coastal program amendment. The modifications included a provision that states, "Public beaches and parks shall... maximize hours of use to the extent feasible, in order to maximize public access and recreation opportunities. Limitations on time of use... shall be subject to a coastal development permit."
The local coastal program amendment required that the Project include various trails from the park to the beach, including two trails, referred to as the Mid-Strand and Central Strand trails (beach access trails), that run from the park, along streets through the proposed housing development, to the beach. With respect to gates, the local coastal program amendment provided:
"Except as noted in this policy, gates, guardhouses, barriers, or other structures designed to... restrict access shall not be permitted upon any street (public or private) within the Headlands where they have the potential to limit, deter, or prevent public access to the shoreline, inland trails, or parklands. In the Strand residential area, gates, guardhouses, barriers, and other structures designed to regulate or restrict public vehicular access into the residential development may be authorized provided that 1) pedestrian and bicycle access from Selva Road [at the top of the Project near the park] and the County Beach parking lot through the residential development to the beach remains unimpeded...." (Italics added.)
The City subsequently adopted a plan entitled "The Headlands Development and Conservation Plan, " which incorporated the local coastal program polices pertaining to the hours of use of the beaches and gates at the Project, mentioned above. The City later approved a coastal development permit for the Project.
B. The City sets hours for the beach access trails and installs pedestrian gates at the entrance to the trails
In May 2009, prior to the public opening of the park and beach access trails, the City established that the trails would be open from 8:00 a.m. to either 5:00 p.m. or 7:00 p.m., depending on the time of year. The City also installed gates at the top of the beach access trails that precluded pedestrian access to the trails during hours that the trails were closed. In October 2009, the Commission discovered that the City had installed gates and that it intended to restrict the hours that the trails would be open to the public. The Commission informed the City that its adoption of restrictive hours of operation for the beach access trails and its installation of pedestrian gates at the trail heads constituted violations of the Coastal Act, the local coastal program, and the coastal development permit. The Commission demanded that the City rescind the restrictive hours of operation for the beach access trails and remove the gates. The Commission also informed the City that the City would have to seek an amendment to the local coastal program and a coastal development permit if it wished to adopt such restrictive hours of operation or install gates in the future.
C. The City adopts the Nuisance Abatement Ordinance
In November 2009, the Commission sent a notice of violation letter to the City, informing the City that it could be subject to enforcement proceedings concerning the gates and the hours of operation on the trails. After the City and the Commission engaged in further communications in an unsuccessful attempt to resolve the issue, the City Council held a meeting on March 22, 2010, at which it considered evidence pertaining to public safety issues at the Project. At this meeting, the City adopted an ordinance, Ordinance No. 10-05 (Nuisance Abatement Ordinance), which declared that public nuisance conditions existed in the area of the beach access trails. The Nuisance Abatement Ordinance states, "In the absence of closure regulations, signs, and gates, restricting public access during closures... unlawful activities will occur within... the general area of Mid-Strand Beach Access and Central Strand Beach Access." The Nuisance Abatement Ordinance reestablished that the trails would be open from 8:00 a.m. to either 5:00 p.m. or 7:00 p.m., depending on the time of year, and that pedestrian gates would be used to enforce the hours of operation.
D. The Commission's hearing
Three days after the City adopted the Nuisance Abatement Ordinance, the Commission issued a "Notification of Appeal Period, " advising the public that the ordinance could be appealed to the Commission. Three appeals were filed: one from a private citizen, Vonne M. Barnes, a second from Surfrider, and a third from two members of the Commission.
The City filed a letter brief in opposition to the appeals. In its brief, the City argued that the Commission lacked appellate jurisdiction to review a local government's enactment of an ordinance. The City also argued that under section 30005, subdivision (b), the Commission lacked jurisdiction to review a local government's nuisance abatement measures. In addition, the City argued that its enactment of the Nuisance Abatement Ordinance had been prompted by public safety conditions, and that the measures required by the ordinance were necessary to abate the nuisance conditions near the beach access trails.
On May 13, 2010, the Commission held a hearing at which it considered the appeals and the City's opposition. At the hearing, the Commission considered whether "the installation of gates, and the establishment of hours of operations that restrict... accessways to the beach" in the Project were exempt from coastal permitting requirements under the Coastal Act. The Commission heard oral presentations from several individuals, including the Commission's executive director, the city attorney for the City, Barnes, and representatives of Surfrider.
The city attorney argued that the Commission lacked jurisdiction to "second guess" the City's Nuisance Abatement Ordinance, and that the concerns addressed by the ordinance represented a "real public safety issue." The Commission's executive director stated that the Nuisance Abatement Ordinance represented "a flagrant attempt to circumvent the public access policies of the Coastal Act, and circumvent the public access requirements that the Commission imposed on this project...." The executive director added, "[B]ut for the public access that the City is now saying constitutes a nuisance, this project, I would guess[, ] would not have been approved."
Several commissioners made comments indicating their agreement with the executive director. For example, Commissioner Sara Wan stated:
"[T]his Commission allowed the destruction of important environmentally sensitive habitat, it allowed the construction of a seawall, and the benefit was public access. [¶] But, from day one, the developer has made every attempt to close that access, and in fact, to never build it, and he came to this Commission in an attempt to get permission not to build it, and this, in my opinion, was a [w]ay for the City to get around the Commission's requirement for that access.... [¶] And, that is the danger of this kind of precedent, that any time a community decides they don't want a public accessway, this is the pathway they can take, so it is very important we send a strong message, ... if you want to close the public accessway, you need to come to this Commission and need to appeal it in a way that if there are legitimate concerns, those concerns are dealt with, but also the public's rights are protected, and that is the key here."
At the conclusion of the hearing, the Commission unanimously denied "the claim of exemption for the proposed development, on the ground that the development is not exempt from the permitting requirements of the Coastal Act."
On May 17, the Commission sent the City a letter instructing the City to remove the gates and suspend the restrictive closure hours. The letter stated that if the City failed to comply with the Commission's directives, "Commission staff will have no choice but to pursue formal enforcement action to resolve this matter."
E. The City's petition and complaint
On May 24, the City filed a petition for writ of mandate and complaint for declaratory and injunctive relief in the Orange County Superior Court. In its petition and complaint, the City reiterated the arguments that it had made at the May 13 Commission hearing concerning its contention that the Commission lacked jurisdiction to consider the Nuisance Abatement Ordinance. The City maintained that the Commission's assertion of jurisdiction over the "enforcement, scope or legality of the City's nuisance abatement legislation" violated the separation of powers doctrine.
The City brought causes of action for traditional and administrative mandamus and sought declaratory and injunctive relief. In its prayer for relief, the City requested that the trial court order the Commission to vacate and set aside its actions taken on May 13, 2010, and issue a writ of mandate restraining the Commission from undertaking any future actions to submit the City's Nuisance Abatement Ordinance to the Commission's jurisdiction.
The City also requested that the court declare that the Commission "lacks jurisdiction under Coastal Act section 30005[, subdivision] (b) to place limitations on the enforcement of the Nuisance Abatement Ordinance." In addition, the City sought a declaration that the adoption of the Nuisance Abatement Ordinance did not require a coastal development permit application. Finally, the City requested a "stay and/or temporary restraining order, preliminary injunction and permanent injunction" barring the Commission from "undertaking any enforcement action arising from [the Nuisance Abatement Ordinance]."
F. The Surfrider petition and complaint
On June 17, Surfrider filed a petition for writ of mandate and complaint for declaratory and injunctive relief in which it argued that the City had violated the Coastal Act and its local coastal program by undertaking the development mandated by the Nuisance Abatement Ordinance. Surfrider raised numerous arguments in support of its contention that the Commission had jurisdiction over the development mandated by the Nuisance Abatement Ordinance, including that "[s]ection 30005 is not a limitless exemption from Coastal Act permitting requirements declared in the name of 'nuisance abatement.' " Surfrider also requested that the court declare that the "record fails to establish a public nuisance...." In addition, Surfrider contended that the Nuisance Abatement Ordinance should be subjected to a heightened standard of judicial scrutiny because the ordinance violated both a state constitutional guarantee to "maximum beach access" as well as the right to free assembly guaranteed under the First Amendment to the United States Constitution.
Surfrider brought causes of action for traditional and administrative mandamus and sought declaratory and injunctive relief. Surfrider requested that the trial court direct the City to remove the gates as well as the signs advising the public of the restrictive hours at the Mid-Strand and Central Strand trail heads. Surfrider also requested that the court declare the Nuisance Abatement Ordinance void. In addition, Surfrider asked the court to order the City to apply to the Commission for a coastal development permit prior to attempting to undertake the development mandated by the Nuisance Abatement Ordinance.
G. The court's consideration of the petitions/complaints
The trial court consolidated the City's Case and the Surfrider Case and transferred the consolidated matter from the Orange County Superior Court to the San Diego County Superior Court. The parties lodged the administrative record related to the City's adoption of the Nuisance Abatement Ordinance and the appeals of the ordinance before the Commission, and submitted additional briefing on the petitions/complaints. On April 28, 2011, the court held a hearing on the petitions/complaints.
H. The trial court's rulings
1. The City's petition and complaint
Two days before the hearing on the petitions/complaints, the trial court issued a tentative ruling that stated:
"The City's petition sought a writ of mandate commanding the... Commission to vacate and set aside its actions taken on May 13, 2010, and restraining the... Commission from undertaking any further actions to enforce the... Commission's May 13, 2010, decision.
"The Court's tentative ruling is to grant this request finding that the... Commission lacked the jurisdiction to make a determination as to the appropriateness of the City's finding of a nuisance. In reaching this result, the Court concludes that the... Commission's actions in this regard were contrary to the express language of... section 30005[, subdivision] (b) providing that no provision of the Coastal Act shall limit 'the power of any city... to declare, prohibit, and abate nuisances.'
"In this case, the City has declared a nuisance in the area of Strand Vista Park and mandated enforcement of closure hours for the Mid-Strand and Central Strand access trails. The... Commission disagrees with the City's findings of a nuisance and the manner of abatement.
"Regardless of the merits of the Commission's arguments concerning the finding of a nuisance, the Court believes that the... Commission lacks jurisdiction to adjudicate this matter and that such issues are reserved for adjudication by the courts.
"Based on this finding, the Court believes the writ of mandate should issue as requested and further makes the findings at [paragraphs 2 and 3] of the City's ...