Plaintiff and respondent San Diego Unified Port District (District) unsuccessfully asked defendant and appellant California Coastal Commission (Commission) to certify an amendment of District's port master plan (at times, the amendment) to authorize specified hotel development in the East Harbor Island subarea, including construction of a 175-room hotel by real party in interest Sunroad Marina Partners, LP (Sunroad). District filed a petition for peremptory writ of mandate challenging Commission's denial of certification, and the trial court in January 2017 issued the writ, finding Commission violated provisions of the California Coastal Act of 1976 (at times the Act; Pub. Res. Code, 1 § 30000 et seq.) and "impermissibly set policy" by setting a maximum rental rate or fixing an amount certain for room rental rates. Commission did not appeal that ruling, but reheard District's application and again denied certification, finding the master plan amendment lacked sufficient specificity to adequately protect lower cost visitor and public recreational opportunities, including overnight accommodations. On objections by District and Sunroad, the trial court in August 2017 ruled that Commission had essentially conditioned its certification on the provision of lower cost overnight accommodations, which "infring[ed] on the wide discretion afforded to the District to determine the contents of land use plans and how to implement those plans." The court ruled that Commission had acted in excess of its jurisdiction and did not proceed in the manner required by law.
Commission appeals from the August 2017 postjudgment order. It contends it complied with the writ, but afterwards in the face of Port's and Sunroad's objections the trial court expanded the writ's scope, thereby exceeding its jurisdiction. Commission asks this court to find it complied with the writ as issued, reverse the order sustaining District and Sunroad's objection, and direct the trial court to discharge the writ. Commission further contends it properly denied District's proposed amendment on remand, arguing: (1) substantial evidence supports its finding the proposed amendment does not conform to the Act's policies; (2) Commission, not District, has the ultimate authority to decide whether a proposed amendment is consistent with the Act; and (3) Commission did not set hotel rates in violation of the Act.
In this context, we narrowly review the correctness of the trial court's postjudgment ruling that Commission exceeded its jurisdiction or acted contrary to law in denying certification of District's proposed master plan amendment. Doing so, we hold the court erred by relying in part on provisions of the Act governing a local government's authority and imposing limits on Commission's jurisdiction with respect to local coastal programs,
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, District submitted to Commission Port Master Plan Amendment No. PMP-6-PSD-14-003-2 (the amendment) for certain development on the East Harbor Island subarea. The amendment proposed to revise District's existing master plan, which had allowed for a single 500-room hotel, to permit development of a 175-room hotel by Sunroad as well as up to two additional hotels with a total of 325 rooms, for a combined total of 500 rooms. About a year earlier, District submitted this proposed amendment but withdrew it after Commission staff recommended Commission deny certification due to "inconsistency with the public access and recreation policies of the Coastal Act that protect and encourage lower-cost visitor and public recreational opportunities." Specifically, Commission staff had observed the proposal did not include any specific requirement for the provision of lower cost accommodations; it did not "include policy language that either reserves a portion of this subarea for lower cost hotel units or identifies an alternative location where such lower cost accommodations will be developed to which ... in-lieu fees may apply."
After District resubmitted the amendment in 2015, Commission staff again recommended denial of certification due to inadequacies with the recreation and lower cost overnight accommodation policies. Commission staff had offered language to include in the amendment that would reserve a portion of the subarea's land, as well as a minimum of 25 percent of the 500 hotel rooms, for lower cost overnight accommodations, but District decided there was inadequate direction from its board to incorporate it into the submittal. Instead, District added a paragraph into its final submittal to address the development of the remaining 325 rooms: "If the District issues a Request for Proposals (RFP) to develop the one or two hotels (up to 325 rooms) on the southwesternmost area of Subarea 23 before the District has completed a
Commission staff determined the language was inadequate: "[I]t is unlikely that these [midscale or economy] rooms would be what the Commission considers lower cost overnight accommodations. Based on the Commission's past practice, a lower cost overnight accommodation in the San Diego region would be one whose rate is below approximately $106. Based on Commission staff's research of other midscale and economy hotel chains in the vicinity, it is very unlikely that the market rate of new hotel rooms on the waterfront developed as an economy product-let alone a midscale product-would fall into this category. In addition, the deletion of in-lieu fees should not be considered or permitted without detailed criteria and evidence regarding a project's design to ensure a reduction or deletion in the fee is warranted. In this case, the proposed language is too general to determine whether the midscale/economy hotel rooms and amenities would result in accommodations that are truly lower cost, and would allow build-out of the remainder of the room allocation for the subarea. Full-buildout should not occur until it has been determined that this subarea is not required to accommodate a lower-cost hotel and/or a very low cost option, such as a hostel, through use of in-lieu fee payments and to fulfill the results of [District's] study described below."
According to Commission staff, though District's proposed amendment acknowledged that the hotel developers must contribute a " 'fair share' " of on-site or off-site lower cost visitor accommodations or pay an in-lieu fee based on a study District was to prepare, that study had not been completed, and the "policy language does not establish or identify the number of lower cost units needed to meet public demand, or the potential location and timeframe for development of lower cost accommodations elsewhere within the Port." Commission adopted its staff's findings in its final report. It denied certification of the amendment.
District petitioned for a writ of mandate ( Code Civ. Proc., §§ 1085, 1094.5 ; Pub. Res. Code, § 30801 ) setting out four causes of action, and Sunroad
In January 2017, the trial court granted the writ as to the second cause of action seeking to compel Commission to vacate its denial based on violations of the Act, finding Commission acted " 'without, or in excess of [its] jurisdiction.' " In part, the court stated it was "not persuaded by the Commission's argument that the Commission did not modify the [amendment] or require the District to accept any language as a condition of certification. By designating $106 as the rate for a 'lower cost overnight accommodation' the Commission set a maximum rental rate and thereby 'fixed an amount certain' for room rental rates necessary for the District to obtain certification of the [amendment] in violation of [sections 30213 and 30714]." The court further ruled Commission "impermissibly set policy" and that, "while [section] 30213 protects, encourages and prefers 'lower cost visitor and recreational facilities' the Commission lacks the authority to determine the precise method by which the District should implement [section] 30213's broad policy objective."
In March 2017, the court entered judgment granting the peremptory writ of mandate. It issued a writ ordering Commission to vacate its August 2015 action to deny certification of the amendment and to "[n]otice and conduct a new public hearing in accordance with applicable regulations and the California Coastal Act during the May 2017 ... Commission meeting scheduled to be held in San Diego and, following the hearing, take action on the [amendment] application, without consideration of a requirement to provide overnight accommodations at a rate of $106 [per] night, or any other specific rate, as a means of establishing 'lower cost overnight accommodations.' " The writ further provided: "Nothing in this writ shall limit or control the discretion legally vested in you." The court retained jurisdiction over the matter "until such time as the court has determined that the ... Commission has complied with this writ by taking the mandated actions in accordance with the Coastal Act."
On remand, Commission staff sought to reach agreement with District staff regarding lower cost overnight accommodation provisions but District elected not to modify its amendment. Additionally, staff reported that District had discontinued its study on lower cost overnight accommodations, instead passing guidelines that Commission staff stated lacked specific procedures for protecting, encouraging or providing for lower cost overnight visitor accommodations within District and delayed consideration of how such accommodations could be provided. Staff explained: "As proposed, the [amendment] language acknowledges the hotel developer(s) must contribute a 'fair-share' of on-site or off-site lower cost visitor accommodations or pay in in-lieu fee based on a study conducted by the District; however, ... the study is no longer being pursued by the Port, so it is unclear how these requirements would be implemented. In addition, the language proposed in the [amendment] would be similar to that included in other [amendments] approved by the Commission for other specific hotel project; however, reliance on this language has not resulted in the actual provision of additional lower cost overnight accommodations within the Port. For example, of the existing 8,035 overnight accommodations within the Port, only 3 [percent] are lower cost (237 RV sites at Chula Vista RV Resort). There is an increasing need for lower cost overnight accommodations within the Port in the form of a specific program that will result in units as opposed to deferred collection of
Staff stated that while the Act emphasized the need to protect and provide public access and lower cost visitor and recreational facilities, the proposed amendment "does not include any specific requirement for the provision of lower cost accommodations on-site or in the subarea and does not meet the requirements of [s]ection 30213." Nor did it contain an in-lieu fee for the remaining 325 rooms if developed as mid-scale or economy to mitigate the loss of public trust lands that could otherwise be used for lower cost accommodations. Staff stated "that the proposed Port Master Plan amendment, as submitted, does not conform to the provisions of Section 30711 of the Coastal Act. The proposed changes in land use do not contain sufficient detail in the [port master plan] submittal for the Commission to make a determination of the proposed amendment's consistency with Sections 30210, 30211, and 30213 of the Coastal Act." Staff again recommended certification be denied in part on grounds the amendment "does not conform with or carry out the policies of Chapter 3 and Chapter 8 of the Coastal Act."
In June 2017, Commission filed a return to the peremptory petition for writ of mandate, stating that it had denied certification of the amendment. It "found that the [amendment] does not conform with or carry out the Chapter 3 and Chapter 8 policies of the Coastal Act." The return further states: "As directed by the Court, the Commission did not consider a requirement to provide overnight accommodations at a rate of $106 [per] night or any other specific rate." Commission asserted it had fully complied with the writ issued by the court, and requested that it be discharged.
District objected and moved to set aside Commission's return and again remand the matter to Commission to comply with the writ. It argued Commission had exceeded its jurisdiction and violated the Act, as reflected by commentary of some of the commissioners during the May 2017 hearing, by making a "specific policy of lower cost overnight accommodations ... dispositive in voting on [the amendment]." More specifically, District objected that Commission "demand[ed] a specific policy (a land set aside for low-cost overnight accommodations over public recreational facilities) and ... articulat[ed] how that policy must be carried out (must designate 25 [percent] of new hotel rooms to be provided at lower cost-hostel, yurts, cabins and camping) ...." It characterized Commission's jurisdictional role in reviewing master plan amendments as "limited" by section 30714, which states that Commission may not modify a plan as submitted as a condition of certification, and section 30512.2, which prohibited Commission from diminishing or abridging a local government's authority to "adopt and establish, by ordinance, the precise content of its land use plan." District also objected that Commission interpreted the writ as merely prohibiting it from mentioning dollar figures as a technicality; that by its actions Commission engaged in "specific policy making" and it attempted to indirectly set room rates. Sunroad joined in the objections and motion.
Commission filed this appeal from the trial court's August 2017 order after judgment.
Commission presents two issues: First, it contends the lower court exceeded its jurisdiction when it found Commission had failed to comply with the writ. According to Commission, in reaching this ruling, the court enforced portions of the writ it had previously struck as beyond the scope of its decision in response to Commission's objections, and thus the court "improperly expanded the scope of the judgment and writ." Commission relies on Craven v. Crout (1985)
Second, Commission contends it properly denied certification of the amendment on remand. It maintains substantial evidence supports its decision that the amendment does not conform to the Act's Chapter 3 policies, including section 30213, and specifically its finding that the amendment lacked sufficient specificity to adequately protect, encourage or provide lower cost visitor and public recreational facilities, including lower cost overnight accommodations, and was inconsistent with the public access and recreation policies of the Act. Commission maintains it is its role, not District's, to exercise discretion to determine whether an amendment meets the Act's standards, based on cases such as City of Chula Vista v. Superior Court (1982)
Because Commission's latter points have merit, we do not reach its contentions regarding the trial court's asserted overreach in jurisdiction. (See Burke v. California Coastal Commission (2008)
I. Standard of Review
The parties dispute in some respects the pertinent standard of review. Commission argues the question at hand is not whether the trial court erred but whether substantial evidence supports its decision on remand to deny certification. Citing Ross v. California Coastal Commission (2011)
District and Sunroad point out that because Commission did not appeal from the court's January 2017 decision to grant the writ, it has waived its right to appeal from that judgment or the writ's directives. ( Los Angeles Internat. Charter High School v. Los Angeles Unified School District (2012)
Thus, in these proceedings we review the trial court's order under section 1097 of the Code of Civil Procedure, which permits the court to "make any orders necessary and proper for the complete enforcement of the writ." ( Code Civ. Proc., § 1097.) The question on appeal is whether the trial court erred by concluding Commission had failed to comply with the writ in denying certification of District's amendment. (See Brown v. California Unemployment Insurance Appeals Board , supra ,
" 'When the determination of an agency's jurisdiction involves a question of statutory interpretation, "the issue of whether the agency proceeded in excess of its jurisdiction is a question of law." ' " ( Citizens v. A Better Eureka v. California Coastal Commission (2011)
II. The Coastal Act and Port Master Plans
The Coastal Act is a " 'comprehensive scheme to govern land use planning for the entire coastal zone of California.' " ( Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012)
The Act "shall be liberally construed to accomplish its purposes and objectives." (§ 30009; Sierra Club v. California Coastal Commission (2005)
Chapter 3 of the Act sets out coastal resources planning and management policies, which "shall constitute the standards by which the ... permissibility of proposed developments subject to the provisions of this division are determined." (§ 30200; see Sierra Club , supra ,
Chapter 3 also includes section 30213, at issue here, which provides: "Lower cost visitor and recreational facilities shall be protected, encouraged, and, where feasible, provided. Developments providing public recreational opportunities are preferred." That section further states: "The commission shall not (1) require that overnight room rentals be fixed at an amount certain for any privately owned and operated hotel, motel or other similar visitor-serving facility located on either public or private lands; or (2) establish or
The Act's public access policies "shall be implemented in a manner that takes into account the need to regulate the time, place, and manner of public access depending on the facts and circumstances in each case ...." (§ 30214. subd. (a), italics added.) This implementation provision, section 30214, contains an express declaration of legislative intent: "It is the intent of the Legislature that the public access policies of this article be carried out in a reasonable manner that considers the equities and that balances the rights of the individual property owner with the public's constitutional right of access pursuant to Section 4 of Article X of the California Constitution. Nothing in this section or any amendment thereto shall be construed as a limitation on the rights guaranteed to the public under [the aforementioned constitutional
Chapter 8 of the Act governs California ports and port district master plans. (§§ 30700, 30711.) Section 30708 provides: "All port-related developments shall be located, designed, and constructed so as to: ... Provide for other beneficial uses consistent with the public trust, including, but not limited to, recreation ..., to the extent feasible." (§ 30708, subd. (d).) Each port governing body must prepare and adopt a port master plan with public participation and submit it for certification by Commission. (§§ 30711, 30712, 30714.) The port master plan must describe development projects subject to section 30715 "in sufficient detail to be able to determine their consistency with the policies of Chapter 3 ...." (§ 30711, subd. (a)(4).) The plan also "shall contain information in sufficient detail to allow the commission to determine its adequacy and conformity with the applicable policies of this division." (§ 30711, subd. (b).) Port master plan amendments are submitted and processed for certification in the same manner as the original master plan. (§ 30716, subd. (a).)
When a port governing body submits a plan amendment for certification, Commission within 90 days "shall certify the plan or portion of a plan and reject any portion of a plan which is not certified" and it "may not modify the plan as submitted as a condition of certification." (§ 30714.) If Commission rejects a plan, it must base the rejection on written findings of fact and conclusions of law. (Ibid .) If it takes no action within 90 days, the plan is deemed certified. (Ibid .) "The commission shall certify the plan, or portion of a plan, if the commission finds both of the following: [¶] (a) The master plan, or certified portions thereof, conforms with and carries out the policies of this chapter. [¶] (b) Where a master plan, or certified portions thereof, provide for any of the developments listed as appealable in Section
The Act grants appellate jurisdiction to Commission over port district approvals of hotel and motel development in connection with a port district master plan or master plan amendments. (§ 30715.) The port district governing bodies "shall inform and advise the commission in the planning and design of appealable developments authorized" under Chapter 8, and notify Commission as to how a proposed hotel or motel development is "consistent with the applicable port master plan and this division." (§ 30717.) Thereafter, a port district's approval of such a development becomes effective unless an appeal is filed with Commission within a short time period. (Ibid .)
III. The Court Erred by Relying on Standards Relating to Local Coastal Programs and the Discretion Accorded Local Governments in Establishing, Creating and Implementing Land Use Plans
We first address a main premise of the trial court's conclusion that Commission exceeded its jurisdiction and failed to proceed in a manner required by law. District and Sunroad have adopted much of the court's underlying reasoning on appeal. Citing Yost v. Thomas , supra ,
None of the cited cases, however, involve a port district's authority; all deal with a local coastal program (LCP), which the Act requires every "local government" within the coastal zone to prepare. (§ 30500; Yost v. Thomas , supra ,
In City of Malibu v. California Coastal Commission , the appellate court held Commission had acted in excess of its jurisdiction by approving amendments to a city's certified LCP that had been proposed by a state conservancy authority over the city's objection. ( City of Malibu v. California Coastal Commission , supra ,
In Schneider v. California Coastal Commission , the appellate court addressed Commission's decision to impose special conditions on a coastal development permit, in part based on a finding the proposed development would be visible from the ocean. ( Schneider v. California Coastal Commission , supra , 140 Cal.App.4th at pp. 1342,
The broad land-use implementation and policy-making jurisdiction discussed in these cases is that granted to a specified city or county; the Act requires only a local government entity within the coastal zone to prepare an LCP, with an accompanying land use plan and implementing ordinances. ( Landgate, Inc. v. California Coastal Commission (1998)
On appeal, District cites the LCP-related authorities ( Yost v. Thomas , supra ,
Sunroad, for its part, argues Commission in reconsidering District's proposed amendment "did exactly the same thing" that the trial court in January 2017 found improper. That is, Sunroad argues, Commission assertedly "sought to regulate rental rates anyway through the backdoor, in violation of
The trial court in assessing Commission's compliance with the writ, however, determined that Commission had not impermissibly set room rates, but had complied with the writ's directive not to do so. Narrowly interpreting the statutory exceptions to Commission's broad authority as we must ( Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles , supra ,
As for Sunroad's complaint that Commission erred by setting policy, that argument echoes the trial court's erroneous reasoning and those arguments made in the aforementioned cases pertaining to LCP's, in which appellate courts would not permit Commission to usurp the land-use and policy-making functions of cities and counties. (E.g., City of Malibu v. California Coastal Commission , supra ,
The narrow question at hand is whether the trial court correctly found Commission had exceeded its jurisdiction or otherwise acted contrary to law in denying certification on the grounds stated. As indicated, though we review the correctness of the court's reasoning, we address de novo the question of whether Commission's decision was within its authority or jurisdiction under the Act.
In answering this question, we give an "expansive interpretation" ( Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles , supra ,
A. The Act's Master Plan Provisions Do Not Prohibit Commission from Determining the Scope and Extent of Coastal Policy When Reviewing a Port Master Plan Amendment's Consistency with Those Policies
This court has previously recognized Commission's broad mandate under the Act relating to planned development and other uses within the coastal zone. ( City of Chula Vista , supra ,
District sees Commission's jurisdiction differently. It characterizes Commission as having a limited statutory role in certifying master plans. District argues the Coastal Act is structured so that "precise policy" originates with a legislative body; that District is charged with creating the policies to implement the Act whereas Commission is an executive branch agency charged only with verifying consistency with the plan and the Act. According to District, section 30714 of the Act "expressly prohibits [Commission from] engaging in developing policy suggestions to port master plans." District challenges Commission's power to articulate how District should carry out the Act's public access policies, arguing Commission lacks authority to "originate policy," require or dictate specific policies and policy choices, or engage in "policymaking." District argues "[t]he California Legislature put the Port District-not Commission-in charge of figuring out how to achieve the Port Act's mission and advance the policies of the Coastal Act." The latter contention is asserted without citation to authority, and on that ground alone
District's other contentions are a variation of the same erroneous reasoning of the trial court premised on express statutory limits on Commission's authority with respect to a local government's LCP. And District's arguments are not supported by section 30714, which, unlike the LCP provisions of the Act, says nothing about Commission's ability to dictate or suggest the type of visitor facilities and alternatives that would comply with coastal policy. Under the trial court's reasoning, when Commission determined that coastal policy required District to actually provide lower cost overnight accommodations in its master plan amendment and identified the sorts of development meeting that standard, Commission modified the plan as a condition of certification in violation of section 30714. But such a conclusion is based on an impermissibly broad reading of the limit placed on Commission in section 30714, providing it "may not modify the [master] plan as submitted as a condition of certification." Strictly construing that limitation as we must, section 30714 prohibits Commission only from conditionally approving a master plan, that is, granting certification subject to a specified modification. To conclude otherwise would prevent Commission from denying certification of a master plan with specific factual and legal findings as to its deficiencies or suggestions for compliance, as any such decision would be construed as an unacceptable conditional approval or modification of the plan in violation of section 30714. Commission did not conditionally approve certification, but denied it on grounds the proposed amendment did not further the Act's public access policies or contain sufficient specificity or detail to permit it to find it complied with those policies, including the Act's mandate that "lower cost visitor ... facilities shall be ... provided." (§ 30213, italics added.) Commission's suggestions as to how District could meet that mandate did not tell District to amend its plan in any particular way. In denying certification, Commission expressly acknowledged that it was not permitted to make such modifications, but was required to approve or deny the plan amendment as submitted.
Neither the port master plan provisions nor the public access provisions of the Act contain a broad legislative mandate in favor of District's authority over the "precise details" of port master plans; though District's governing body prepares the master plan and Commission may not modify it as submitted as a condition of certification (§ 30714), it ultimately remains Commission's primary role and responsibility as the statewide supervisory agency to implement the Act and ensure a port master plan furthers the Act's policies. (Accord, City of Chula Vista , supra ,
Commission exercised this permissible function in deciding whether the proposed port master plan amendment complied with and carried out section 30213 without actually providing lower cost overnight accommodations such as hostels, cabins, campgrounds or budget motels. With respect to "lower cost visitor and recreational facilities," section 30213 is unambiguously mandatory: Such facilities "shall be ... provided " where feasible. The statute separately references both "visitor ... facilities" and "recreational facilities," indicating that a visitor facility is something different from a recreational resource such as a park, promenade, walking path, dock or golf course. As the "state coastal zone planning and management agency for ... all purposes" charged with primary responsibility for implementing the Act (§ 30330) it is within Commission's power to interpret section 30213's reference to visitor facilities as mandating the provision of overnight accommodations. To the extent Commission interpreted section 30213 in this way-a determination that does not involve the scope of its authority-we give great weight to its administrative construction. ( Coronado Yacht Club v. California Coastal Commission (1993)
Nothing prevents Commission from delineating the statewide policies in its findings, explaining a master plan's deficiencies in detail, or suggesting what sorts of visitor facilities meet the Act's goals and section 30213's mandate. Rather, it is within Commission's broad authority to apply its expertise and devise solutions to promote the policy of providing "lower cost visitor ... facilities," including by specifying overnight accommodations that are the "type of development ... designed in such a manner to be intrinsically lower cost," in District's master plan. Likewise, the Act does not prevent Commission from deciding that collection of in-lieu mitigation fees no longer furthers or carries out the legislative mandate that lower cost visitor facilities be provided. District points out that the trigger for collecting such fees has not occurred for some of the past hotel projects and it collected fees for another hotel that can be transferred if not used. But Commission is entitled to conclude that the built-in delays with in-lieu mitigation fees render them ineffectual in actually providing lower cost visitor facilities in connection with the present plan amendment. The fact Commission previously certified District's master plan without provision of such lower cost accommodations or subject to in-lieu mitigation fees does not prevent Commission from now concluding that District's proposed amendment does not further the Act's mandate for lower cost overnight accommodations.
Additionally, Commission's denial was based on a finding that District's proposed amendment was insufficiently specific to permit it to
District argues that courts consistently hold Commission "exceeds its jurisdiction when it strays into policymaking." The broad contention is unsupported by the cited cases, which address Commission's statutory authority under the Act to undertake particular actions, such as require a permit, designate environmentally sensitive habitats, or deny a coastal development permit on particular grounds. (See City of Dana Point v. California Coastal Commission , supra , 217 Cal.App.4th at pp. 189-190,
B. Commission Did Not Violate Any Other Express Statutory Limits on Its Authority in Denying Certification.
District points to several other provisions of the Act that it suggests limit Commission's jurisdiction in certifying a master plan and confer more power to District. But none of these provisions restrict Commission's authority to prescribe the types of overnight facilities that would further the mandate that lower cost visitor facilities be provided in District's master plan, or suggest methods to ensure developers actually put such facilities in place.
District points to section 30714's short, 90-day, time period within which Commission must act to certify a master plan amendment, as well as its language deeming an amendment approved if Commission fails to take action within that time. But these types of provisions are merely designed to avoid unnecessary bureaucratic delay (see, e.g., Encinitas Country Day School, Inc. v. California Coastal Commission (2003)
District also refers to asserted limits on Commission's "permit authority" in section 30715. The section prevents Commission from exercising its "permit authority ... provided in Chapter 7 (commencing with Section 30600)" over "new development" following its certification of a master plan, and delegates approvals to District at such time. (§ 30715, subd. (a).) The specifically referenced permit authority is for coastal development permits, which are not at issue in this proceeding. This provision in no way limits the scope of Commission's jurisdiction in certifying or denying certification of a port master plan or master plan amendment.
V. Commission's Denial of Certification Is Not Otherwise Contrary to Law
Sunroad maintains Commission failed to adopt written findings as required by section 30714, which states a Commission's rejection of any portion of a
Neither District nor Sunroad made this procedural challenge to the trial court in objecting to Commission's June 2017 return. We decline to consider such challenges for the first time on appeal where an objection could have been, but was not presented to the trial court by some appropriate method. (See In re Marriage of Hinman (1997)
DISPOSITION
The order is reversed and the matter remanded with directions to the trial court to discharge the writ of mandate. Commission shall recover its costs on appeal.
WE CONCUR:
IRION, J.
DATO, J.
Notes
An "in-lieu fee" generally refers to any fee paid toward mitigating impacts associated with a particular development. (See, e.g., § 30607.8, subd. (c) [defining an in-lieu fee for purposes of that section as "any fee paid as a condition for issuance of a coastal development permit to mitigate impacts associated with the development of lower cost coastal visitor-serving projects"].)
For this part of its ruling, the trial court quoted from Yost v. Thomas (1984)
Staff found District had misstated the number of rooms that would be developed as "midscale or economy" rooms; that only 82 of 325 rooms would be designated for such development, and District's actual proposal was that any hotel developed as midscale or economy would not need to pay in-lieu fees. Staff additionally found the Smith Travel Research definition used by District was unclear; it had not specified which standard its proposed language was based on and what it meant: "The ambiguity of the proposed language is confusing and the [proposed master plan] should include more specifically defined terms. The [amendment] also requires the provision of 'amenities' to lower the cost of stay, but it does not specify the extent of amenities that would be required. Thus, these mid-scale rooms could include a microwave and free wifi as amenities, and still comply with the proposed [amendment]. While [District] may have intended for its submittal to adequately provide lower cost accommodations at the Port, as drafted, it could be construed as laid out above, resulting in the construction of only higher cost rooms. Thus, the proposed [amendment] fails to protect or provide lower cost overnight accommodations." Staff stated: "The Commission acknowledges that mid-price hotels may serve as a part of the overall effort to address the need for more affordable accommodations within the Port because they are typically less costly or are more reasonably priced for larger groups and families; however, the focus for any future resumption of the study should be the protection and provision of new lower cost accommodations that all economic segments of the population can afford to use, including hostels, tent camping, cabins/yurts, and low cost hotels/motels (e.g., budget hotels with the lowest average room rates). Thus, any future study should provide a goal specifically related to providing lower cost accommodations that is distinguishable from the goal for moderate cost overnight accommodations and include analysis of how this goal is consistent with the Public Trust Doctrine and the Coastal Act."
While this appeal was pending, this court granted an application of the San Diego Port Tenants Association and Pacific Legal Foundation to file an amicus curiae brief on behalf of District. Amici contend that in denying certification, Commission imposed a condition lacking an essential nexus to the impacts of the proposed hotel development, and thus its action amounts to an unconstitutional exaction under Nollan v. California Coastal Commission (1987)
It also directed Commission to act "consistent with the court's prior rulings in this case." But the court found Commission had complied with its directive not to consider specific rental rates.
Sunroad has moved in this court for judicial notice of a 2016 minute order in an unrelated case, San Diego Navy Broadway Complex Coalition v. San Diego Unified Port District (Sunroad ) (Super. Ct. S.D. County, 2016, No. 37-2014-00009407-CU-TT-CTL), in which another San Diego Superior Court judge rejected a challenge to District's decision to certify an environmental impact report (EIR) for the same master plan amendment. Sunroad argues this decision is relevant to the procedural history of District's master plan amendment at issue, the length of time the amendment has been pending unresolved and efforts of respondents to complete the CEQA and administrative process. Sunroad states its counsel made reference to this decision in discussing the legislative history of section 30213 of the Act at the July 2014 hearing before Commission on the amendment, but that the findings were not included in the administrative record. Sunroad's arguments concerning the 2016 minute order related to the EIR do not convince us that the San Diego Navy Broadway Complex Coalition order is relevant to whether the trial judge in this case correctly decided Commission either exceeded its jurisdiction or acted in a manner contrary to law in connection with its 2017 decision to again deny certification of the amendment. Sunroad also asks this court to judicially notice 1981 revised findings of Commission in approving a 300-unit hotel in Marina Del Ray. But Sunroad does not establish that these Commission findings are in fact included within the legislative history of section 30214, that is, that they were matters available to and presumably reviewed by the Legislature when adoption of those statutes was under consideration. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998)
Article X, section 4 of the California Constitution provides: "No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof."
"The commission shall approve a port master plan only if the commission finds that sufficient information has been submitted to allow the commission to determine the adequacy and conformity of the proposed plan(s) with the applicable policies of the California Coastal Act of 1976, pursuant to the requirements of Public Resources Code, Section 30711 and of Section 13625 of these regulations, and that the master plan fulfills the requirements of ... Section 30714(a) and (b)." (Cal. Code Regs., tit. 14, § 13632, subd. (d).)
See footnote 3, ante .
No party has claimed that Commission sought to "establish or approve any method for the identification of low or moderate income persons for the purpose of determining eligibility for overnight room rentals in any [hotel, motel, or other similar visitor-serving facility]" in violation of section 30213.
In City of Chula Vista , we addressed a city's argument that Commission had no legislative power with respect to its review of an LCP for conformity with statewide standards, and therefore could decide only whether the city's action was arbitrary and capricious. (City of Chula Vista , supra ,
District did not argue below that it was economically infeasible to provide such overnight facilities. It maintained visitor facilities included not just overnight accommodations, but encompassed "public parks, public areas and promenades, streets and sidewalks, bike paths, parking areas, boat moorings and public boat launches and ramps." Such uses, however, fall in the separate category of "recreational facilities" in section 30213.