196 Cal. App. 4th 1577
Cal. Ct. App.2011Background
- Developer planned 43-acre Marina Center near Humboldt Bay with phased approach; phase 1 focused on nuisance abatement (site remediation, debris removal) and wetlands restoration; City of Eureka issued nuisance abatement orders 2000–2008 and approved a CDP for phase 1; CUE ownership and CBE challenge the Commission’s appellate jurisdiction over the CDP; the CDP was appealed to the Coastal Commission; Commission found substantial issues and scheduled de novo review while requiring further information.
- Phase 1 includes 5.6 acres of wetlands to be filled and creation of a wetland reserve surrounding Clark Slough; restoration plans and mitigation measures required to protect LCP policies; wetlands are central to Coastal Act jurisdiction.
- RWQCB approved a SIRAP remediation plan addressing contamination and debris; the CDP resolution ties nuisance abatement to the SIRAP and wetlands restoration commitments.
- Trial court denied petitions, concluding the phase 1 development goes beyond nuisance abatement, thus CDP/appeal procedures apply; CBE and CUE appealed the demurrers and motions for judgment.
- Appellate court addressed whether section 30005, subdivision (b) limits local nuisance abatement power and whether a CDP is required when a development includes wetlands restoration; court concluded a CDP is required and Commission has appellate jurisdiction over the CDP appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 30005(b) saves nuisance abatement from CDP requirements. | CBE argues nuisance abatement is solely within City power and excludes CDP. | Commission asserts that when development exceeds nuisance abatement, a CDP is required and Commission review applies. | CDP required; nuisance abatement exemption narrowly construed. |
| Whether phase 1 is limited to nuisance abatement or involves broader development (wetlands/restoration). | CBE contends activities are nuisance abatement; no further review needed. | Phase 1 includes wetlands restoration and significant environmental impacts exceeding nuisance abatement. | Phase 1 transcends nuisance abatement; CDP required. |
| Whether the Commission has appellate jurisdiction over the CDP despite 30005(b). | CBE claims the City’s nuisance abatement power should not be reviewed by the Commission. | If a CDP is required, Commission has authority to review the CDP appeal de novo. | Commission has jurisdiction to determine the CDP appeal. |
| Whether exhaustion of administrative remedies affects the case. | Not determinative; court proceeded on jurisdictional grounds. |
Key Cases Cited
- Monterey v. California Coastal Com., 120 Cal.App.3d 799 (Cal. App. Dist. 1st Div. 1981) (nuisance abatement vs. permit requirement; repair exception to nuisance abatement)
- Pacific Lumber Co. v. State Water Resources Control Bd., 37 Cal.4th 921 (Cal. 2005) (overlapping jurisdiction; savings clause in regulatory act)
- McAllister v. California Coastal Com., 169 Cal.App.4th 912 (Cal. App. Dist. 2nd Div. 2008) (Commission de novo jurisdiction over CDP appeal)
- Kaczorowski v. Mendocino County Bd. of Supervisors, 88 Cal.App.4th 564 (Cal. App. Dist. 3rd Div. 2001) (CDP appeal results in de novo review by Commission)
- Donnellan v. City of Novato, 86 Cal.App.4th 1097 (Cal. App. Dist. 1st Div. 2001) (statutory interpretation standard of review)