Posted by: Patricia Salkin | January 13, 2019

CA Appeals Court Holds Land Use Plan Policy Conditioning Coastal Development Permit on Conversion of Private Beach Stairway to Public Accessway was Not a Compensable Taking

This post was authored by Matthew Loeser, Esq.

As it pertains to this case, the California Coastal Act of 1976 requires local governments to develop a local coastal program (“LCP”). To comply with this requirement, the City of Solana Beach submitted an amended LUP (“ALUP”) to the Commission, which approved the ALUP with suggested modifications and the City accepted those modifications. In 2013, Beach and Bluff Conservancy (“BBC”) brought the present action for declaratory relief and traditional mandate under Code of Civil Procedure section 1085, challenging seven specific policies of the City’s ALUP as facially inconsistent with the Coastal Act and/or facially unconstitutional. The court granted BBC’s motion and petition for writ of mandate as to two of the challenged policies, and denied the motion and writ petition as to the other five challenged policies.

At the outset, the court noted that whenever the Commission reviews and decides whether to certify a local government’s LUP, it is acting in a quasi-judicial capacity. Here, the Coastal Act created new rights and obligations regarding the development and management of coastal property which did not previously exist in common law. As such, the statutory remedy provided by section 30801 to persons claiming to be aggrieved by actions and decisions of the Commission in implementing the Coastal Act was the exclusive remedy for such claimants, notwithstanding other common law remedies that may have otherwise been available. Accordingly, any challenge was required to be made by petition for writ of administrative mandate under Code of Civil Procedure section 1094.5, as expressly provided in section 30801.

BBC contended that policies 2.60.5 and 4.19 were unconstitutional because they violated the unconstitutional conditions doctrine. Specifically, BBC contends policies 2.60.5 and 4.19 facially violated the unconstitutional conditions doctrine as they did not satisfy the Nollan v. California Coastal Comm’n, 483 U.S. 825, (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) “essential nexus” and “rough proportionality” test. The court found, however, that Nollan/Dolan was inapplicable to facial challenges. Moreover, even assuming BBC’s challenges to policies 2.60.5 and 4.19 under the unconstitutional conditions doctrine did not automatically fail because they were facial challenges, the court concluded they also failed on the merits.

Policy 2.60.5 provides: “Upon application for a coastal development permit for the replacement of a private beach stairway or replacement of greater than 50% thereof, private beach accessways shall be converted to public accessways where feasible and where public access can reasonably be provided.” BBC contended that repairing or replacing existing stairways created a new burden on public access that could justify depriving private owners the right to exclude the public without compensation. Despite this contention, the policy requires conversion only where it is feasible, public access can be reasonably provided, and the stairway already partially uses public land or a land subject to a public easement or deed restriction. As such, the court determined that whether the policy would effect an exaction or physical invasion of private property for which the City must pay just compensation under the Nollan/Dolan test could be determined only on a case-by-case basis as individual property owners subject to the policy’s permit condition apply for permits to repair or replace their beach stairways. Accordingly, the court held Policy 2.60.5 did not facially conflict with constitutional principles.

Policy 4.19 provides: “New shoreline or bluff protective devices that alter natural landforms along the bluffs or shoreline processes shall not be permitted to protect new development.” The court found that Policy 4.19 was neither facially unconstitutional nor imposed a taking in most cases because the condition applied only to “new development and blufftop redevelopment on bluff property,” which for specific properties may or may not occur in the future. As with Policy 2.60.5, the extent to which the policy would cause economic harm to particular property owners could only be determined on a case-by-case basis through as-applied challenges to the policy. Furthermore, because Policy 4.19 restricted the use of property without demanding an exaction of a property interest or money as a condition of approval, the court held that the unconstitutional conditions doctrine did not apply. Therefore, the portions of the judgment granting BBC’s motion regarding Policy 2.60.5 and 4.19 were reversed.

Beach and Bluff Conservancy v City of Solana Beach, 28 Cal. App. 5th 244 (4th Dist 10/17/2018)


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