BEACH AND BLUFF CONSERVANCY, Plаintiff and Appellant, v. CITY OF SOLANA BEACH, Defendant and Appellant; CALIFORNIA COASTAL COMMISSION et al., Interveners and Appellants.
D072304
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 10/17/18
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 37-2013-00046561-CU-WM-NC)
APPEAL from a judgment of the Superior Court of San Diego County, Timothy Casserly, Judge. Affirmed in part, reversed in part with directions.
NOSSAMAN, Steven H. Kaufmann, Elizabeth Klebaner; McDougal Love Boehmer Foley Lyon & Canlas, and Johanna N. Canlas for Defendant and Appellant.
ENVIRONMENTAL LAW CLINIC; Mills Legal Clinic at Stanford Law School and Molly Melius for Intervener and Appellant Surfrider Foundation.
INTRODUCTION
The California Coastal Act of 1976 (
In the present case, the City submitted an amended LUP (ALUP) to the Commission. The Commission approved the ALUP with suggested modifications and the City accepted those modifications. In April 2013, Beach and Bluff Conservancy
(BBC) brought the present action for declaratory relief and traditional mandate under
As we shall explain, we conclude that BBC‘s exclusive remedy to challenge policies in the ALUP on the ground they are inconsistent with the Coastal Act was to file a petition for writ of administrative mandate under
FACTUAL AND PROCEDURAL BACKGROUND
In October 2011, the City submitted a draft LUP to the Commission. The Commission rejected the City‘s draft LUP in March 2012 and instead approved a different LUP that the Commission had substantially modified. In May 2012, BBC and property owner Joseph Steinberg challenged the Commission‘s decision by filing separate petitions for writ of administrative mandate under
In September 2012, while the writ petitions against the Commission were pending, the Commission notified the City that because the Commission had certified its LUP with suggested modifications, before the LUP could become “effectively certified,” the Commission would have to determine the City had taken “formal action . . . to satisfy [the suggested modifications], such as incorporating the modifications.” In February 2013, the city council accepted the Commission‘s suggested modifications to the City‘s LUP and, in May 2013, adopted additional amendments to the LUP. In January 2014, the
BBC filed the present action against the City in April 2013 but did not name the Commission in its complaint. In March 2014, BBC and the City stipulated to allow the Commission to intervene in the case on the side of the City, and the court entered an order allowing the Commission‘s intervention. The Commission filed a complaint-in-intervention, which essentially constituted its answer to BBC‘s first amended complaint. In October 2014, BBC filed its second amended complaint for declaratory relief and petition for writ of mandate under
BBC‘s operative second amended complaint challenges the ALUP policies numbered 2.60, 2.60.5, 4.19, 4.22, and 4.53, in addition to two other policies not at issue in this appeal. BBC contends these policies are either facially unconstitutional or facially inconsistent with the Coastal Act, or both, as noted below.
Policy 2.60 restricts the right of blufftop property owners to rеpair existing private beach stairways and prohibits construction of new stairways. It allows existing stairways to be maintained in good condition but not expanded, limits the extent of permissible routine repair and maintenance of stairways, and requires private stairways to be phased
out at the end of their economic life. BBC challenges policy 2.60 on the ground it violates
Policy 2.60.5 requires conversion of a private beach stairway to a public accessway “where feasible and where public access can reasonably be provided” when the property owner applies for a coastal development permit
Policy 4.19 provides that new shoreline or bluff protective devices that alter natural landforms (e.g., seawalls) “shall not be permitted to protect new development.” As a condition for a permit for new blufftop development or redevelopment, the policy requires a property owner to record a deed restriction waiving any future right under
Policy 4.22 provides: “No bluff retention device shall be allowed for the sole purpose of protecting an accessory structure.” BBC challenges policy 4.22 on the ground it violates
Policy 4.53 provides that a permit for a bluff retention device will expire when an existing blufftop structure requiring protection is redeveloped, is no longer present, or no longer requires protection. The policy requires property owners to apply for a CDP to remove, modify, or retain a protective device before expiration of the permit and provides
that the CDP will include a condition requiring reassessment of the impacts of the device in 20-year
The trial court granted BBC‘s motion for judgment in part and denied the motion in part. The court ruled in BBC‘s favor as to policies 2.60 and 4.22, finding those policies were inconsistent with the Coastal Act.7 The court denied BBC‘s motion as to policies
2.60.5, 4.19, and 4.53. The court entered judgment in accordance with its order and issued a peremptory writ of mandate commanding the Commission to “[v]acate and set aside [its] actions to approve and certify LUP Policy 4.22 and LUP Policy 2.60, insofar as it includes a condition regarding repair and maintenance of private stairways.”8
I. Section 30801 Provides BBC‘s Exclusive Remedy to Challenge a Commission-certified Policy on the Ground It Is Inconsistent with the Coastal Act
BBC‘s operative second amended complaint challenged the City‘s ALUP by seeking declaratory relief and a writ of traditional mandate under
mandamus under
We begin with a general overview of the LUP certification process and the difference between traditional mandamus under
A. LUP Certification Process
A local government subject to the Coastal Act must submit its LUP to the Commission for certification that the LUP is consistent with the policies and requirements of the Coastal Act. (
substantial issues
The Commission‘s review of an LUP is “limited to its administrative determination that the [LUP] submitted by the local government does, or does not, conform with the requirements of [the Coastal Act].” (
B. Traditional Mandamus Versus Administrative Mandamus
“The appropriate type of mandate is determined by the nature of the administrative action or decision under review. In general, ‘quasi-judicial’ or ‘adjudicative acts,’ that is, acts that involve the actual application of a rule to a specific set of existing facts arе reviewed by administrative mandamus under
[Citation.] [¶] More specifically, a petition for administrative mandamus under
In contrast, a public entity‘s enactment of a rule “constitutes a [legislative or] ‘quasi-legislative’ act and is reviewed by ordinary [or traditional] mandate [under
“The determination of whether
Council (2013) 213 Cal.App.4th 1531, 1541 [“[T]raditional mandamus under section 1085 applies to ‘[q]uasi-legislative’ decisions, defined as those involving ’ “the formulation of a rule to be applied to all future cases,” ’ while administrative mandamus under section 1094.5 applies to ‘quasi-judicial’ decisions, which involve ’ “the actual application of such a rule to a specific set of existing facts.” ’ “].) Traditional mandamus under
In addition to traditional mandamus, an action for declaratory relief is generally an appropriate means of facially challenging a legislative or quasi-legislative enactment of a public entity (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119, 128); however, the appropriate remedy for a challenge to the application of an enactment to specific property—i.e., an “as-applied challenge“—is through administrative mandamus. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 13-14 (Hensler); Agins v. Tiburon (1979) 24 Cal.3d 266, 272-273, overruled on other grounds in First English Evangelical Lutheran Church v. County of Los Angeles (1987) 482 U.S. 304.) As explained in Walter H. Leimert Co. v. California Coastal Com. (1983) 149 Cal.App.3d 222, “[t]he law is well established that an action for declaratory relief is not appropriate to review an administrative decision.” (Id. at p. 230.) Thus, a cause of action challenging the validity of an action by the Commission in applying the Coastal
Act to a particular property owner ” ‘is properly brought under the provisions of
C. Analysis
When the Commission reviews and decides whether to certify a local government‘s LUP, it acts in a quasi-judicial capacity. (San Mateo County Coastal Landowners’ Assn. v. County of San Mateo (1995) 38 Cal.App.4th 523, 540-541 (San Mateo); City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [“[W]hen the Commission rеviews an LCP for conformity to statewide standards it performs a predominantly judicial rather than legislative function.“].) Accordingly, any postapproval facial challenge to a local land use policy is essentially a challenge to the Commission‘s quasi-judicial certification decision. As such, the challenge must be made by petition for writ of administrative mandate under
In San Mateo, the appellants filed a complaint for declaratory relief and petition for writ of ordinary mandamus against San Mateo County and the Commission, claiming
a portion of an initiative measure amending the County‘s LCP conflicted with the Coastal Act policies encouraging the development of affordable housing and visitor serving recreational facilities. (San Mateo, supra, 38 Cal.App.4th at pp. 533, 557.) The San Mateo court concluded this claim was “clearly a ‘backdoor’ challenge through traditional mandate and declaratory relief to the Commission‘s certification of [the initiative measure] as consistent with the Coastal Act. . . . [T]he proper method for such challenge is through bringing of a petition for a writ of administrative mandamus pursuant to
Earlier in its opinion, the San Mateo court agreed “with the Commission that insofar as appellants claim [the initiative‘s] adoption or its provisions conflict with the Coastal Act, such challenge should have been brought in an
supra, 38 Cal.App.4th at p. 539, fn. 9.)10 We agree with this analysis. Because the Commission acted in a quasi-judicial role in reviewing and certifying the City‘s ALUP, the sole remedy for BBC‘s claims that certain policies in the ALUP conflict with the Coastal Act was administrative mandamus under
BBC contends the California Supreme Court‘s decision in Yost v. Thomas (1984) 36 Cal.3d 561, 572 is inconsistent with San Mateo and supports BBC‘s argument that declaratory relief and traditional mandamus are proper means to challenge the City‘s ALUP because the City acted in a legislative role in enacting the ALUP. BBC‘s reliance on Yost is unavailing. In Yost the California Supreme Court addressed the issue of whether the Coastal Act “precludes а referendum on any local land use measure affecting the coastal zone which is adopted by a city council after the . . . Coastal Commission . . . has approved the city‘s land use plan.” (Yost, at p. 564.) The Yost court held the Coastal Act did not preclude the referendum because the city (Santa Barbara) was acting legislatively in adopting its LUP. (Id. at pp. 569-571.) The Yost court concluded “the Coastal Act does not transform the exercise of legislative power into administrative action by virtue of a Commission certification of a land use plan. The Legislature left wide discretion to local governments to formulate land use plans for the coastal zone and
it also left wide discretion to local governments to determine how to implement certified LCPs. Under such circumstances, the City Council of Santa Barbara was acting legislatively when it adopted the two resolutions and the ordinance which are the subject of this appeal. Its action is thus subject to the normal referendum procedure.” (Id. at p. 574, italics added.)
We agree that the italicized statement from Yost supports the proposition that the City was acting legislatively in adopting its ALUP. However, the fact the City was acting legislatively when it enacted the policies at issue here is undisputed and does not defeat the City‘s argument that an administrative
Our conclusion that challenges to the Commission‘s LUP certification decisions must be through administrative mandamus, as provided in
In sum, because the Commission was statutorily required to certify the City‘s ALUP and acted in a adjudicatory role in doing so, BBC‘s challenges to the certified ALUP are essentially challenges to the Commission‘s certification decision that were required to have been raised by petition for a writ of administrative mandate under
II. BBC‘s Constitutional Challenges
A. Applicability of Section 30801
As noted,
BBC‘s challenges to policies 2.60.5 and 4.19 under the unconstitutional conditions doctrine fail on the merits.
B. General Principles Applicable to Facial Challenges on Constitutional Grounds
“Facial challenges to statutes and [local enactments] are disfavored. Because they often rest on speculation, they may lead to interpreting [enactments] prematurely, on the basis of a bare-bones record. [Citation.] Also, facial challenges conflict with the fundamental principle of judicial restraint that courts should not decide questions of constitutional law unless it is necessary to do so, nor should they formulate rules broader than required by the facts before them.” (Building Industry Assn. of Bay Area v. City of San Ramon (2016) 4 Cal.App.5th 62, 90,
The interpretation of a legislative enactment and the determination of its constitutionality are questions of law we review de novo. (Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 90.) “[W]e start from ‘the strong presumption that the [enactment] is constitutionally valid.’ [Citations.] ‘We resolve all doubts in favor of the validity of the [enactment]. [Citation.] Unless conflict with a provision of the state or federal Constitution is clear and unmistakable, we must uphold the [enactment].’ ” (Building Industry Assn. of Bay Area v. City of San Ramon, supra, 4 Cal.App.5th at p. 90.)
“In evaluating a facial challenge, a court considers ‘only the text of the [challenged enactment] itself, not its application to the particular circumstances of an individual.’ [Citation.] The California Supreme Court has not articulated a single test for determining
the propriety of a facial challenge. [Citation.] Under the strictest test, the [enactment] must be upheld unless the party establishes the [enactment] ” ‘inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions.” ’ [Citation.] Under the more lenient standard, a party must establish the [enactment] conflicts with constitutional principles ” ‘in the generality or great majority of cases.” ’ [Citation.] Under either test, the plaintiff has a heavy burden to show the [enactment] is unconstitutional in all or most cases, and ” ‘cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the [enactment].” ’ ” (Coffman Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135, 1144-1145.)
C. Facial Challenges Based on Alleged Unconstitutional Taking of Property
When the theory of the facial challenge is that a legislative enactment effects an unconstitutional taking of property without just compensation—i.e., that the mere enactment of the legislation works a taking, the claimant must additionally show that the enactment effects a physiсal taking or deprives the claimant of all economically beneficial or viable use of the property. (Lucas v. S. C. Coastal Council (1992) 505 U.S. 1003, 1015-1017 (Lucas); Del Oro Hills v. City of Oceanside (1995) 31 Cal.App.4th 1060, 1076 (Del Oro).) This requirement derives from federal takings/inverse condemnation law.
The United States Supreme Court has “described at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physical
As this court noted in Del Oro, “an ordinance is safe from a facial challenge if it preserves, through a permit procedure or otherwise, some economically viable use of the property. [Citation.] In such a case, administrative remedies must be pursued if available because the challenge is actually an ‘as-applied’ one.” (Del Oro, supra, 31 Cal.App.4th at p. 1076, italics added.) Such an “as-applied” challenge is not ripe for adjudication until there has been a ” ‘final, definitive, position regarding’ ” how the government will apply the challenged enactment to the complaining party‘s land; only then can it be determined whether a taking has occurred. (Hensler, supra, 8 Cal.4th at p. 10, quoting Williamson County Reg‘l Planning Comm‘n v. Hamilton Bank (1985) 473 U.S. 172, 191.) Further, as explained in Hensler, the governmental entity faced with an adjudication that proposed application of a regulation to particular property effects a taking has a range of available options to avoid paying compensation for the taking, including exempting the property from the regulation, amending the regulation, or even repealing the regulation. (Id. at pp. 11-12, 13, 27 [” ‘The requirement that challenges to administrative actions constituting takings be brought initially by administrative mandamus assures that the
D. Unconstitutional Conditions Doctrine
As noted, BBC alleged in its second amended complaint and argues on appeal that policies 2.60.5 and 4.19 are unconstitutional because they violate the unconstitutional conditions doctrine.
“The doctrine of unconstitutional conditions limits the government‘s power to require one to surrender a constitutional right in exchange for a discretionary benefit.” (San Diego County Water Authority v. Metropolitan Water District of Southern California (2017) 12 Cal.App.5th 1124, 1158; California Building, supra, 61 Cal.4th at p. 457.) In the takings context, the United States Supreme Court has held “the government may impose such a condition only when the government demonstrates that there is an ‘essential nexus’ [citation] and ‘rough proportionality’ [citation] between the required dedication and the projected impact of the proposed land use.” (Id. at p. 458, citing Nollan v. Cal. Coastal Com. (1987) 483 U.S. 825 (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 (Dolan).) This test for determining whether a condition is unconstitutional is commonly referred to as the “Nollan/Dolan test” (see California Building, supra, 61 Cal.4th at pp. 458-459), and is viewed as a type of “heightened scrutiny.” (Id. at p. 470; Building Industry Assn. of Central California v. County of Stanislaus (2010) 190 Cal.App.4th 582, 590; see Koontz v. St. Johns River Water Mgmt. Dist. (2013) 570 U.S. 595, 622 (dis. opn. of Kagan, J.).)
” ‘[A] predicate for any unconstitutional conditions claim is that the government could not have cоnstitutionally ordered the person asserting the claim to do what it attempted to pressure that person into doing.’ [Citation.] Or, in other words, the condition is one that would have constituted a taking of property without just compensation if it were imposed by the government on a property owner outside of the permit process.” (California Building, supra, 61 Cal.4th at pp. 459-460.) The unconstitutional conditions doctrine applies only where the condition at issue constitutes an “exaction” in the form of either the conveyance of a property interest or the payment of money; the doctrine does not apply where the government simply restricts the use of property without demanding an exaction. (Id. at pp. 457, 460.)
BBC contends policies 2.60.5 and 4.19 facially violate the unconstitutional conditions doctrine because they do not satisfy the Nollan/Dolan
The Action Apartment court affirmed the dismissal of a complaint that facially challenged a Santa Monica ordinance requiring developers of multi-family housing projects to construct affordable housing. (Action Apartment, supra, 166 Cal.App.4th at pp. 459-461.) The plaintiff argued it was entitled to assert a facial challenge to the ordinance using the Nollan/Dolan test. Based on settled United States Supreme Court and California Supreme Court case law, the Action Apartment court concluded the Nollan/Dolan test applies only to as-applied challenges and not to facial challenges. The court stated: “Both the United States and California Supreme Courts have explained the two-part Nollan/Dolan test developed for use in land exaction takings litigation applies only in the case of individual adjudicative permit approval decisions; not to generally applicable legislative general zoning decisions. [Citations.] . . . ‘The “sine qua non” for application of Nollan/Dolan scrutiny is thus the “discretionary deployment of the police power” in “the imposition of land-use conditions in individual cases.” [Citation.] Only “individualized development fees warrant a type of review akin to the conditional conveyances at issue in Nollan and Dolan.” ’ ” (Action Apartment, at p. 470, quoting San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 670 (San Remo).)13 Accordingly, the Action Apartment court concluded the Nollan/Dolan nexus and rough proportionality test, which is used to determine whether a proposed condition is unconstitutional, did not apply to the plaintiff‘s facial challenge to the ordinance. (Ibid.)
Because the Nollan/Dolan test applies to challenges under the unconstitutional conditions doctrine (California Building, supra, 61 Cal.4th at pp. 457-458), Action Apartment supports the proposition that the unconstitutional conditions doctrine does not apply to facial challenges like BBC‘s in the present case, although Action Apartment did not involve an exaction or refer to the facial challenge in that case as an unconstitutional conditions claim.
San Remo did not identify the plaintiffs’ facial challenge to the challenged ordinance in that case as an unconstitutional conditions claim, and the phrase “unconstitutional conditions doctrine” does not appear in the Supreme Court‘s opinion. The challenged ordinance in San Remo required owners of a hotel wanting to convert all of the rooms in the hotel to daily rentals rather than long-term rentals to pay a fee into a governmental fund for the construction of low and moderate-income housing. (San Remo, supra, 27 Cal.4th at p. 649.) The Court of Appeal in San Remo found that the ordinance involved an exaction and applied the heightened scrutiny of the Nollan/Dolan test (San Remo, supra, 27 Cal.4th at pp. 657), but the California Supreme Court reversed and concluded the housing replacement fees in question were not subject to Nollan/Dolan scrutiny because the fee was generally applicable to a class of property owners and was not applied to individual owners on an ad hoc basis. (San Remo, at pp. 668-670.) Thus, to the extent the San Remo plaintiffs’ constitutional challenge and bid for heightened scrutiny under the Nollan/Dolan test was an unconstitutional conditions claim, the Supreme Court decided it did not lie.
In Levin, the plaintiffs facially challenged a San Francisco ordinance that “require[d] property owners wishing to withdraw their rent-controlled property from the rental market to pay a lump sum to displaced tenants.” (Levin, supra, 71 F.Supp.3d at p. 1074 [Citation.] The Ordinance does so on its face, because the explicit purpose of the statute is to approximate a rent differential sum that is neither caused by nor related to the impact of property owners’ decisions to exercise the right to regain possession of their parcels.” (Id. at pp. 1088-1089, italics added.)
Application of the unconstitutional conditions doctrine to the facial challenge in Levin appears to be an anomaly that could be explained by the fact the ordinance at issue enabled the plaintiffs to calculate the precise sum they would be required to pay (Levin, supra, 71 F.Supp.3d at p. 1074) and, therefore, the case was ripe under the rule that “takings claims that challenge a legislative demand for money . . . are ripe without a prior damages suit
E. Analysis of BBC‘s Constitutional Challenges to Policies 2.60.5 and 4.19
1. Policy 2.60.5
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. The condition to convert the private stairway to a public stairway shall only be applied where all or a portion of the stairway utilizes public land, private land subject to a public access deed restriction or private land subject to a public access easement.”
BBC contends this policy is unconstitutional because it exacts private property for public use without compensation as a condition of a permit. BBC argues that repairing or replacing existing stairways creates no new burden on public access that could justify depriving private owners the right to exclude the public without compensation.
Policy 2.60.5 does not meet the requirements for a successful facial challenge on the ground it effects a compensable taking by imposing an unconstitutional condition. Policy 2.60.5‘s permit condition requiring conversion of a private stairway to a public accessway cannot be deemed on its face to conflict with constitutional principles in the generality or great majority of cases because it does not inevitably require a property owner to convert a private stairway to a public stairway when the owner replaces or repairs the stairway. 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. Thus, whether the policy effects an exaction or physical invasion of private property for which the City must pay just compensation under the Nollan/Dolan test can be determinеd 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.
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. A condition of the permit for all new development and blufftop redevelopment on bluff property shall require the property owner [to] record a deed restriction against the property that expressly waives any future right that may exist pursuant to Section 30235 of the Coastal Act to new or additional bluff retention devices.”
BBC contends the waiver condition imposed by policy 4.19 is an unconstitutional exaction because there is no logical connection or nexus between the waiver requirement and any identified adverse public impact of new development.
BBC‘s challenge to Policy 4.19 fails to meet two requirements for a facial challenge on the ground the policy effects an unconstitutional taking of property, and also fails to meet a separate requirement for application of the unconstitutional conditions doctrine. First, policy 4.19 cannot be deemed on its face to inevitably pose a present total and fatal conflict with applicable constitutional prohibitions or impose a taking in most cases because the condition applies only to “new development and blufftop redevelopment on bluff property,” which for specific properties may or may not occur in the future. Thus, BBC‘s unconstitutional conditions challenge to policy 4.19 falls within the princiрle that “the plaintiff has a heavy burden to show the [enactment] is unconstitutional in all or most cases, and ’ “cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the [enactment].” ’ ” (Coffman, supra, 176 Cal.App.4th at p. 1145.)
Second, the condition requiring a property owner to waive the right under
In conclusion, BBC‘s constitutional challenges essentially fail because they are not ripe for adjudication until there has been a final, definitive, position regarding how the City will apply the challenged enactment to the complaining party‘s land; only then can it be determined whether a taking has occurred. (Hensler, supra, 8 Cal.4th at pp. 10-11.) Notably, the City and Commission are undеr an express statutory directive to not apply the Coastal Act in a way that would infringe constitutional rights.
Similarly, policy 5.9.5 of the City‘s ALUP articulates the following general policy regarding new development: “Ensure the private and public interest in protecting and preserving private property rights under the state and federal Constitutions, the Coastal Act, and local ordinances, such that regulations are not overreaching and no private owner is denied reasonable use of his, her or its property. In accordance with Public Resources Code section 30010, this Policy is not intended to increase or decrease the rights of any owner of property under the Constitution of the State of California or of the United States.”
III. The Disposition of This Appeal Does Not Preclude Future As-applied Challenges to the City‘s ALUP
Although we have upheld the City‘s ALUP in its entirety against BBC‘s facial challenges, the disposition of this appeal does not preclude any property owner affected by the ALUP from later challenging the application any of its policies to the owner‘s specific property. Many federal reviewing courts have held that the doctrine of res judicata does not bar claims that arise from events that postdate the filing of the initial complaint. In Chicanos Por La Causa, Inc. v. Napolitano (9th Cir. 2009) 558 F.3d 856, 861, the Ninth Circuit Court of Appeals observed that the plaintiffs’ successful facial challenge to a statute was “brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, and the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by [this] decision.” (Id. at p. 861; accord, Whole Woman‘s Health v. Hellerstedt, ___ U.S. ____, 136 S.Ct. 2292, 2305 (2016) [doctrine of claim preclusion did not bar petitioners’ postenforcement as-applied challenge to statute because it was not the same claim as petitioners’ pre-enforcement facial challenge to statute]; Howard v. City of Coos Bay (9th Cir. 2017) 871 F.3d 1032, 1040 [“[F]or purposes of federal common law, claim preclusion does not apply to claims that accrue after the filing of the operative complaint.“]; Morgan v. Covington Twp. (3d Cir. 2011) 648 F.3d 172, 178 [“[R]es judicata does not bar claims that are predicated on events that postdate the filing of the initial complaint[.]“].)
We agree with the principle that the res judicata doctrine does not bar claims that arise from future applications for permits governed by the City‘s ALUP. ” [‘]The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent.’ ” (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065,
DISPOSITION
The portions of the judgment granting BBC‘s motion for judgment on its petition for writ of mandate as to the first cause of action of BBC‘s second amended complaint (challenging policy 4.22) and fifth cause of action (challenging policy 2.60) and directing issuance of a peremptory writ of mandate are reversed. The judgment is otherwise affirmed. The December 6, 2016 order ruling on BBC‘s motion for judgment on its petition for writ of mandate and the peremptory writ of mandate filed on April 5, 2017, are vacated. The court is directed to enter an order denying BBC‘s motion for judgment and petition for writ of mandate in their entirety. The City, the Commission, and Surfrider are awarded their costs on appeal.
HALLER, Acting P. J.
WE CONCUR:
O‘ROURKE, J.
IRION, J.
Notes
In relevant part,
- The age, condition and economic life of the existing principal structure;
- Changed geologic site conditions including[,] but not limited to, changes relative to sea level rise, implementation of a long-term, large scale sand replenishment or shoreline restoration program; and
- Any impact to coastal resources, including but not limited to public access and recreation.
“No permit shall be issued for retention of a bluff retention device unless the City finds that the bluff retention device is still required to protect an existing principal structure in danger from erosion, that it will minimize further alteration of the natural landform of the bluff, and that adequate mitigation for coastal resource impacts, including but not limited to impacts to the public beach, has been provided.”
The judgment states: “A preemptory [sic] writ shall issue from the Court remanding the proceedings to the City and Commission and commanding (a) the Commission to set aside its certification of LUP Policies 4.22 and 2.60, insofar as it includes a condition regarding repair and maintenance of private stairways, and (b) the City to set aside its acceptance of the Commission‘s suggested modifications relating to LUP policies 4.22 and 2.60, insofar as it includes a condition regarding repair and maintenance of private stairways.” However, the writ of mandate the court ultimately issued is directed at the Commission only; it does not command the City to do anything.
In light of our disposition of BBC‘s challenges to the ALUP on the grounds discussed above, we need not address the City and Commission‘s argument that BBC was required to provide an administrative record to obtain judicial review of the challenged policies.