Waves of Contentious Issues Still Batter the California Coastal Act at 40
| Publication year | 2017 |
| Author | by Angela Howe (Parts I & V), Jana Zimmer (Part II), Jennifer Lucchesi (Part III), and John Erskine (Part IV) |
by Angela Howe* (Parts I & V), Jana Zimmer** (Part II), Jennifer Lucchesi*** (Part III), and John Erskine (Part IV)****
The California coast is one of the state's most valuable assets, so the management of the coast is of the utmost importance. Sound coastal management is needed to support the state's thriving coastal tourism economy and other coastal-dependent activities. In 1972, California voters approved an initiative to proactively govern and manage the state's valuable coastal resources. The initiative was drafted in response to rampant coastal development and the threat of beach access closures. Prop 20 (identified on the ballot as the Coastal Zone Conservation Act) established the California Coastal Commission and six regional commissions.1 Four years later, the legislature codified Prop 20 and enacted the California Coastal Act of 1976, which eliminated the regional commissions but requires geographic diversity for the voting commissioners.
In the 40th year of the Coastal Act, the California Coastal Commission experienced a big year and some major changes, culminating in the controversial firing of Executive Director Charles Lester in February 2016. Long-time Commission staffer Jack Ainsworth was the acting Executive Director while the Commission searched for a new leader. In February 2017, the Commission announced that Mr. Ainsworth was selected as the new Executive Director. The new head of the agency has some daunting tasks ahead, including how to increase low-cost visitor-serving accommodations on the coast and generally open the coast to a wider range of demographic groups; how to reconcile the long-debated seawall and coastal armoring policy of the state; how to manage coastal development in light of climate change; and how to assure the transparency of the Commission by altering the Coastal Act's provisions regarding ex parte communications
The California Coastal Act of 1976 opens with the legislative finding that the "California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people and exists as a delicately balanced ecosystem," and that the protection of these resources is of "paramount concern to present and future residents of the state and nation."2 The agency's stated mission is the protection, conservation, restoration, and enhancement of coastal resources for environmentally sustainable and prudent use by current and future generations.
The quasi-judicial state agency is charged with protection of coastal resources, and the agency's purview includes shoreline public access and recreation, low cost visitor accommodations, marine habitat, visual resources, shoreline alteration, agricultural lands, commercial fisheries, industrial uses, coastal water quality, offshore oil and gas development, transportation, coastal development, power plants, ports, and public works in or affecting the coastal zone. The agency does this through evaluation and oversight of Coastal Development Permits, Local Coastal Programs, and through an enforcement program. Basically, this powerful state agency is the authority for all major decisions on the California coast.
In terms of structure, the agency has a staff of experts in coastal land use and resource governance that evaluate issues and prepare reports on items for the Commissioners. There are 12 voting Commissioners (and up to 12 alternate members) and three non-voting ex officio members. California's Governor, the Senate Rules Committee, and the Speaker of the Assembly appoint all voting members. Each appoints four Commissioners, two of whom are from the general public and two of whom are local elected officials. In order to ensure statewide representation, each of the following geographical areas are designated to have one "local elected" voting member seat: San Diego, South, South Central, Central, North Central, and North Coast regions. In addition to the twelve voting Commission members, the three non-voting state agency members include Secretaries of the Resources Agency, the Chair of the State Lands Commission, and the Business, Transportation, and Housing Agency.
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In 2016, the Commission faced many changes and daunting new challenges. Along with an active Executive Director search (complete with online survey to obtain input from the public), a number of lawsuits were filed against Commissioners for improper ex parte reporting practices, and the legislature has proposed ex parte reform. In 2016, there were also 8 new bills aimed at reforming the Coastal Act. Of the eight, only three bills were approved by the Senate and Assembly Appropriations Committee, and only one bill became law.3 In 2017, the Executive Director search was completed, but there will be at least 6 and potentially 7 new Commissioner appointments, constituting over half of the voting members. No doubt bills will be introduced attempting to alter coastal management governance structure.
The Coastal Commission's power within the coastal zone is broad, and applies to all private and public entities affecting the coast, and the Commission will be faced with many difficult decisions for the future of the coast. These decisions will relate not only to coastal resource management, but also to the governance of the agency itself. Important issues include the defense of public beach access with the Commission's relatively new enforcement authority, implementation of Local Coastal Programs across the state in a way that addresses sea level rise and climate change impacts, and regulation to assure the transparency of the agency. This article assesses the nation's foremost coastal management law, the California Coastal Act, and how it is being applied forty years after its inception.
Californians associate the passage of Proposition 20 in 1972 with the voters' affirmation of their right of access to and along the shoreline, in the face of a wall of development which threatened to privatize California's beaches, making them accessible only to owners of adjacent land. The ballot argument in support of the measure stated: "Our coast has been plundered by haphazard development and land speculation. Beaches formerly open for camping, swimming, fishing and picnicking are closed to the public. Campgrounds along the coast are so overcrowded that thousands of Californians are turned away." See also CEEED v. California Coastal Zone Conservation Com. (1974) 43 Cal. App. 3d 306, 321-322.
The Commission has achieved a great deal in its first 40 years, but the nature of the issues before it remains the same; the challenges have only intensified as a result of the increased cost of coastal property, increased population, and the loss of public beach through the improvident approval of shoreline protective devices.
A. Establishing a Right to Public AccessThe 1972 Act expressly authorized the Coastal Commission to utilize its permit authority as a tool to exact access easement dedications from landowners desiring to develop their coastal properties.5 The Commission's program to maximize public access necessarily includes the obligation to preserve for the public those areas which already are held in public trust, and to consider and approve new development only where access opportunities continue to be protected.6
In California, public trust lands extend generally from submerged lands to the mean high tide line, which is a shifting boundary, moving landward. The task of defining the location of the boundary (and the grant of leases or the right to encroach on public land) falls to the State Lands Commission,7 Cal. Pub. Res. Code §§ 6501 et seq., while preservation of the public's right to vertical and lateral access to the beach is addressed by the Coastal Commission in the context of its regulation of new development on private and public lands adjacent to the shore.
Other agencies with important roles in implementing public access programs include the Coastal Conservancy, also established in the Coastal Act of 1976, which serves as a "repository for lands whose reservation is required to meet the policies and objectives" of the Coastal Act. The Conservancy acquires property and subsidiary property interests to serve these purposes. The Department of Parks and Recreation and the State Parks Commission also manage important coastal resources, including near-shore marine reserves and dozens of state beaches and coastal state parks. Finally, the Ocean Protection Council, formed by the California Ocean Protection Act of 2004, is charged with coordinating all state coastal and ocean management agencies.
The public may acquire formal easements to private land through voluntary grant offered as part of a project application to the Coastal Commission, or as conditions imposed on a development permit. The Coastal Act provides for two kinds of access easements: "vertical" access, that is, access from the nearest public roadway to the sea; and "lateral" access, that is, access along the shoreline. See City of Malibu v. California Coastal Com. (2005) 128 Cal.App.4th 897.
The public cannot use a mitigation access way or easement unless a public or nonprofit entity, approved by the Coastal Conservancy (or in the case of a local condition, a private nonprofit or government agency), accepts the offer to dedicate the easement by way of a recorded certificate of acceptance and acknowledgement, under which that public agency or private association agrees to accept responsibility for maintenance and liability for the access way (Pub. Res. Code § 30212, subd. (a).) Most offers to dedicate are irrevocable for a period of 21 years from the date of the offer.
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Easements may be required as permit conditions, provided they comport with constitutional requirements. Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v....
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