Beach and Bluff Conservancy v. City of Solana Beach ( 2018 )

Filed 10/17/18
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BEACH AND BLUFF CONSERVANCY, D072304
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2013-00046561-CU-WM-NC)
CITY OF SOLANA BEACH,
Defendant and Appellant;
CALIFORNIA COASTAL COMMISSION et
al.
Interveners and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
Casserly, Judge. Affirmed in part, reversed in part with directions.
Jon Corn Law Firm, Jonathan Corn; Pacific Legal Foundation, Meriem L.
Hubbard, and Lawrence G. Salzman for Plaintiff and Appellant.
NOSSAMAN, Steven H. Kaufmann, Elizabeth Klebaner; McDougal Love
Boehmer Foley Lyon & Canlas, and Johanna N. Canlas for Defendant and Appellant.
Xavier Becerra, Attorney General, John A. Saurenman and Daniel A. Olivas,
Assistant Attorneys General, and Jamee Jordan Patterson, Deputy Attorney General, for
Intervener and Appellant California Coastal Commission.
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 (Pub. Resources Code, 1 § 30000 et seq.) (the
Coastal Act) requires local governments like defendant City of Solana Beach (the City) to
develop a local coastal program (LCP). The LCP, consisting of a land use plan (LUP)
and implementing ordinances, is designed to further the objectives of the Coastal Act.
(§ 30001.5, subd. (c); Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles
(2012) 55 Cal. 4th 783, 794.) The Coastal Act provides that a local government must
submit its LUP to the California Coastal Commission (the Commission) for certification
that the LUP is consistent with the policies and requirements of the Coastal Act.
(§§ 30512; 30512.2.) After the Commission certifies a local government's LUP, it
delegates authority over coastal development permits to the local government. (Pacific
Palisades, at p. 794, citing §§ 30519, subd. (a), 30600.5, subds. (a), (b), (c).)
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
1 All subsequent statutory references are to the Public Resources Code unless
otherwise specified.
2
(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. 2 In
September 2016, BBC filed a motion for judgment on its petition for writ of mandate.
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, and entered judgment accordingly.
BBC's appeal and the cross-appeals by the City, the Commission, and Surfrider
Foundation (Surfrider) concern five of the seven policies at issue in the trial court. BBC
contends the court erred in rejecting its claims that one of those policies is facially
inconsistent with the Coastal Act, another is facially unconstitutional under the
"unconstitutional conditions doctrine," and a third is both inconsistent with the Coastal
Act and unconstitutional. In their cross-appeals, the City, the Commission, and Surfrider
contend the court erred in granting BBC's motion for judgment and petition for writ of
mandate as to two of the policies. The City and the Commission also raise a number of
procedural challenges to the judgment.
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 Code of Civil Procedure section
2 BBC filed its original complaint in April 2013. The Commission intervened in the
action in March 2014 before BBC filed its second amended complaint, and Surfrider
Foundation (Surfrider) intervened in the action in January 2016.
3
1094.5 rather than an action for declaratory relief and traditional mandamus. And
assuming, without deciding, that administrative mandamus is not the exclusive remedy
for BBC's facial challenges to two policies on constitutional grounds, we conclude those
challenges fail on the merits.
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 Code of Civil Procedure section
1094.5. In November 2013, the trial court sustained the Commission's demurrers to the
petitions without leave to amend on the ground the actions were barred by the petitioners'
failure to name the City as a necessary and indispensable party. BBC and Steinberg
appealed the dismissal of those actions, but BBC voluntarily dismissed its appeal and this
court dismissed Steinberg's appeal for failure to file an opening brief.
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
4
Commission approved the City's amendments with additional proposed modifications. In
June 2014, the City accepted those proposed modifications and incorporated them into
the ALUP that BBC challenges in this action.
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 Code of Civil Procedure section 1085. In January
2016, the parties stipulated to, and the court ordered, Surfrider's intervention in the
action. Surfrider filed a complaint in intervention that defended certain policies BBC
challenged in its second amended complaint.
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 repair 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
5
out at the end of their economic life. BBC challenges policy 2.60 on the ground it
violates section 30610 of the Coastal Act. 3
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 (CDP) to replace the
stairway or more than 50 percent of the stairway. However, the conversion is required
only if any portion of the stairway uses public land or private land subject to a public
access easement or deed restriction. 4 BBC challenges policy 2.60.5 on the grounds it
violates section 30610 and is unconstitutional.
3 Policy 2.60 states: "No new private beach stairways shall be constructed, and
private beach stairways shall be phased out at the end of the economic life of the
stairways. Existing permitted or private beach stairways constructed prior to the Coastal
Act may be maintained in good condition with a CDP where required, but shall not be
expanded in size or function. Routine repair and maintenance shall not include the
replacement of the stairway or any significant portion of greater than 50% of the stairway
cumulatively over time from the date of the LUP certification."
In relevant part, section 30610 provides that "no coastal development permit shall
be required" for "[i]mprovements to any structure," for "[r]epair or maintenance activities
that do not result in an addition to, or enlargement or expansion of, the object of those
repair or maintenance activities," and for "[t]he replacement of any structure . . .
destroyed by a disaster."
4 Policy 2.60.5 states: "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."
6
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
section 30235 to construct new bluff retention devices. 5 BBC contends the permit
condition imposed by policy 4.19 is unconstitutional.
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 section 30235, which, in BBC's words, "countenances no distinctions among
the kinds of structures that may be protected from erosion."
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
5 Policy 4.19 states: "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."
Section 30235 provides: "Revetments, breakwaters, groins, harbor channels,
seawalls, cliff retaining walls, and other such construction that alters natural shoreline
processes shall be permitted when required to serve coastal-dependent uses or to protect
existing structures or public beaches in danger from erosion and when designed to
eliminate or mitigate adverse impacts on local shoreline sand supply. Existing marine
structures causing water stagnation contributing to pollution problems and fishkills
should be phased out or upgraded where feasible."
7
that the CDP will include a condition requiring reassessment of the impacts of the device
in 20-year mitigation periods. BBC claims policy 4.53 violates section 30235 by placing
unauthorized limitations on the right to protect blufftop structures with bluff retention
devices. 6
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
6 Policy 4.53 states: "All permits for bluff retention devices shall expire when the
currently existing blufftop structure requiring protection is redeveloped (per definition of
Bluff Top Redevelopment in the LUP), is no longer present, or no longer requires a
protective device, whichever occurs first[,] and a new CDP must be obtained. Prior to
expiration of the permit, the bluff top property owner shall apply for a coastal
development permit to remove, modify or retain the protective device. In addition,
expansion and/or alteration of a legally permitted existing bluff retention device shall
require a new CDP and be subject to the requirements of this policy. [¶] The CDP
application shall include a re-assessment of need for the device, the need for any repair or
maintenance of the device, and the potential for removal based on changed conditions.
The CDP application shall include an evaluation of:
"• 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.
"The CDP shall include a condition requiring reassessment of the impacts of the
device in 20 year mitigation periods pursuant to Policies 4.49 and 4.53.
"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."
7 In its order on BBC's motion for judgment, the court referred to policies 2.60 and
4.22 as being "unconstitutional" because they were inconsistent with the Coastal Act.
8
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
DISCUSSION
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 Code of Civil
Procedure section 1085. As noted, of the five policies at issue in this appeal, BBC
challenged three solely on the ground of inconsistency with the Coastal Act (2.60, 4.22,
and 4.53), challenged one solely on the ground it violates the unconstitutional conditions
doctrine (4.19), and challenged one on both of those grounds (2.60.5). The City contends
that under section 30801, BBC's exclusive remedy for its challenges lies in administrative
Presumably, the court's use of the word "unconstitutional" was inadvertent because BBC
did not challenge policy 2.60 or policy 4.22 on constitutional grounds, and the court's
finding that the policies were inconsistent with the Coastal Act is not a valid basis for
also finding them unconstitutional.
8 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.
9
mandamus under Code of Civil Procedure section 1094.5 rather than traditional
mandamus and declaratory relief.
Section 30801 provides, in relevant part: "Any aggrieved person shall have a right
to judicial review of any decision or action of the [C]ommission by filing a petition for a
writ of mandate in accordance with Section 1094.5 of the Code of Civil Procedure, within
60 days after the decision or action has become final." As we shall explain, because the
Coastal Act requires the Commission to certify a local government's LUP as consistent
with the policies and requirements of the Coastal Act (§§ 30512; 30512.2), and in doing
so the Commission acts in a quasi-judicial capacity, we conclude BBC's sole remedy to
challenge the City's ALUP was to file a petition for writ of administrative mandate under
Code of Civil Procedure section 1094.5, as provided in section 30801.
We begin with a general overview of the LUP certification process and the
difference between traditional mandamus under Code of Civil Procedure section 1085
and administrative mandamus under Code of Civil Procedure section 1094.5.
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. (§§ 30512, 30512.2.) Within 60 days after submission,
the Commission determines, after public hearing, whether the proposed LUP raises any
substantial issues as to whether it is consistent with the Coastal Act. (§ 30512, subd.
(a)(1).) If the Commission determines the LUP raises no such issue, it deems the LUP
certified as submitted. (Ibid.) If the Commission determines the LUP raises one or more
10
substantial issues regarding consistency with the Coastal Act, the Commission must
identify those issues and, after public hearing, decide whether to certify the LUP, in
whole or in part. (§ 30512, subd. (a)(2) & (3).) If the Commission decides not to certify
an LUP in whole or in part, it must provide a written explanation and may suggest
modifications. (§ 30512, subd. (b).) The local government may adopt those
modifications, which "shall cause the [LUP] to be deemed certified upon confirmation of
the [Commission's] executive director." (Ibid.) Alternatively, the local government may
resubmit its own revised LUP to the Commission for certification. (Ibid.) After the
Commission certifies a local government's LUP, it delegates authority over coastal
development permits to the local government. (§§ 30519, subd. (a), 30600.5, subds. (a),
(b), & (c).)
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]." (§ 30512.2.) The Commission must certify an LUP
if it finds, by a majority vote of its appointed members, that the LUP "meets the
requirements of, and is in conformity with, the policies of [the Coastal Act]." (§ 30512,
subd. (c).)
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 are
reviewed by administrative mandamus under Code of Civil Procedure section 1094.5.
11
[Citation.] [¶] More specifically, a petition for administrative mandamus under Code of
Civil Procedure section 1094.5 is appropriate when the party seeks review of a final
'determination, finding, or decision of a public agency, made as a result of a proceeding
in which by law a hearing is required to be given, evidence is required to be taken and
discretion in the determination of facts is vested in a public agency . . . .' " (California
Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal. App. 4th 1464,
1482 (California Water).)
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 Code of
Civil Procedure section 1085]. [Citations.] A petition for traditional mandamus is
appropriate in . . . actions brought to attack, review, set aside, or void a quasi-legislative
. . . or ministerial determination, or decision of a public agency. [Citations.] The trial
court reviews an administrative action pursuant to Code of Civil Procedure section 1085
to determine whether the agency's action was arbitrary, capricious, or entirely lacking in
evidentiary support, contrary to established public policy, unlawful, procedurally unfair,
or whether the agency failed to follow the procedure and give the notices the law
requires." (California Water, supra, 161 Cal.App.4th at 1483, fn. omitted.)
"The determination of whether Code of Civil Procedure section 1094.5 or 1085
applies does not depend on whether the agency is required by statute to hold an
evidentiary hearing in the matter, but instead turns on the nature of the challenged
action." (California Water, supra, 161 Cal.App.4th at p. 1483, fn. 19; Southern
California Cement Masons Joint Apprenticeship Committee v. California Apprenticeship
12
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 Code of Civil Procedure section 1085 "may be employed to compel the
performance of a duty which is purely ministerial in character; it cannot be applied to
control discretion as to a matter lawfully entrusted to the Commission." (State v.
Superior Court (1974) 12 Cal. 3d 237, 247 [referring to former California Coastal Zone
Conservation Commission].)
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
13
Act to a particular property owner " 'is properly brought under the provisions of section
1094.5 of the Code of Civil Procedure rather than by means of declaratory relief.'
[Citation.] A declaratory relief action is an appropriate remedy only if the party is
seeking a declaration that a statute controlling development of coastal lands is actually
unconstitutional." (Id. at p. 231, italics added.) 9
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 reviews 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 Code of Civil Procedure section
1094.5, as expressly provided in section 30801.
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
9 Although the vast majority of facial challenges to governmental enactments are on
constitutional grounds, a facial challenge may be premised on the ground the enactment
is inconsistent with statutory law. (See T.H. v. San Diego Unified School Dist. (2004)
122 Cal. App. 4th 1267, 1273, 1280-1285 [addressing facial challenge to administrative
(school district) regulations on the ground they violated state law]; Harrahill v. City of
Monrovia (2002) 104 Cal. App. 4th 761, 769 [same].)
14
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 Code
of Civil Procedure section 1094.5. [Citations.] It is established the Commission acts in a
quasi-judicial role when it reviews a LCP or LCP amendment for consistency with the
Coastal Act. [Citation.] Consequently, challenge to the Commission's actions in LCP
certification decisions is via Code of Civil Procedure, section 1094.5. (San Mateo, at p.
558, italics added, fn. omitted.)
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 action for a writ of
administrative mandamus pursuant to Code of Civil Procedure section 1094.5. [¶] The
Commission is the sole agency with statutory authority to review LCP submittals for
consistency with the Coastal Act. (§ 30500 et seq.) In so doing, the Commission acts in
a quasi-judicial capacity. [Citations.] Consequently, challenge to the Commission's
actions in LCP certification decisions is through administrative mandate." (San Mateo,
15
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 Code of Civil Procedure section 1094.5,
as provided in section 30801.
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 a 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
10 Because the San Mateo appellants' claim that the initiative was inconsistent with
the Coastal Act was "intertwined" with some of their other challenges to the initiative and
it was "difficult to separate these issues," the San Mateo court exercised its discretion to
"review [the inconsistency] claim despite appellants' failure to advance it by way of an
appropriate writ petition." (San Mateo, supra, 38 Cal.App.4th at p. 539, fn. 9.)
16
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 mandamus proceeding against the
Commission (with the City named as a necessary party) was BBC's exclusive remedy to
challenge policies on the ground of inconsistency with the Coastal Act. Unlike in Yost,
where voters challenged by referendum certain coastal land use measures that a city
adopted after the Commission had approved its LUP, in the present case BBC judicially
challenged policies in the City's ALUP as inconsistent with the Coastal Act. Because
those challenges are fundamentally challenges to the Commission's quasi-judicial
decision to certify the City's ALUP, BBC was required to proceed by administrative
mandamus under Code of Civil Procedure section 1094.5, as expressly provided in
section 30801. 11
11 The trial court in the present case cited DeVita v. County of Napa (1995) 9 Cal. 4th
763 in ruling that "declaratory relief and traditional mandamus are available to challenge
the LUP." The plaintiffs in DeVita filed a complaint for declaratory relief and petition
for writ of mandate challenging a voter initiative measure that amended the land use
element of Napa County's general plan. (Id. at p. 771.) The DeVita court held that
"general plans can be amended by initiative." (Id. at p. 775.) DeVita does not support
17
Our conclusion that challenges to the Commission's LUP certification decisions
must be through administrative mandamus, as provided in section 30801, is also
consistent with the principle that "[w]here a statute [or statutory scheme] creates new
rights and obligations not previously existing in the common law, the express statutory
remedy is deemed to be the exclusive remedy available for statutory violations, unless it
is inadequate." (De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza
Santa Cruz Mobile Estates (2001) 94 Cal. App. 4th 890, 912; see Rojo v. Kliger (1990) 52
Cal. 3d 65, 79; Brewer v. Premier Golf Properties (2008) 168 Cal. App. 4th 1243, 1253-
1254 [remedies provided in the Labor Code statutory scheme governing meal and rest
breaks were exclusive because the scheme created new rights and obligations not
previously existing in common law].) The Coastal Act created new rights and obligations
regarding the development and management of coastal property not previously existing in
common law. Consequently, 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 is the exclusive remedy for such claimants, notwithstanding other
common law remedies that might otherwise be available.
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 Code
the proposition that an action for declaratory relief and traditional mandamus is a proper
means to judicially challenge a Commission-approved LUP under the Coastal Act.
18
of Civil Procedure section 1094.5 within 60 days after the Commission's certification
decision became final. (§ 30801; Patrick Media Group, Inc. v. California Coastal Com.
(1992) 9 Cal. App. 4th 592, 607-608.) "Failure to obtain judicial review of a discretionary
administrative action by a petition for a writ of administrative mandate renders the
administrative action immune from collateral attack, either by inverse condemnation
action or by any other action." (Patrick Media, at p. 608, italics added.) Accordingly,
BBC's challenges to policies 2.60, 2.60.5, 4.22, and 4.53 on the ground they are
inconsistent with the Coastal Act are barred by BBC's failure to file a timely writ petition
against the Commission under Code of Civil Procedure section 1094.5.
II. BBC's Constitutional Challenges
A. Applicability of Section 30801
As noted, section 30801 expressly provides "[a]ny aggrieved person [the] right to
judicial review of any decision or action of the commission by filing a petition for a writ
of mandate in accordance with Section 1094.5 of the Code of Civil Procedure, within 60
days after the decision or action has become final." (Italics added.) Although on its face,
section 30801 applies to any challenge to a certification decision of the Commission,
including a claim that a Commission-certified policy is facially unconstitutional, the
Commission's review of an LUP is statutorily limited to a determination of whether the
LUP is consistent with the Coastal Act. (§§ 30512, subd. (c), 30512.2.) Thus, section
30801 arguably does not apply to a constitutional challenge to a Commission-certified
LUP. However, we need not decide whether section 30801 is the exclusive remedy for
facial challenges to Commission-certified policies on constitutional grounds because
19
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, citing Wash. State Grange v. Wash. State
Republican Party (2008) 552 U.S. 442, 450.)
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
20
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 physical 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
21
property owner to suffer a physical 'invasion' of his property. . . . [¶] The second
situation in which [the Supreme Court has] found categorical treatment appropriate is
where regulation denies all economically beneficial or productive use of land.
[Citations.] . . . [T]he Fifth Amendment is violated when land-use regulation 'does not
substantially advance legitimate state interests or denies an owner economically viable
use of his land.' " (Lucas, supra, 505 U.S. at pp. 1015-1016; see NJD, Ltd. v. City of San
Dimas (2003) 110 Cal. App. 4th 1428, 1438-1439; California Building Industry Assn. v.
City of San Jose (2015) 61 Cal. 4th 435, 462 (California Building) ["As a general matter,
so long as a land use regulation does not constitute a physical taking or deprive a property
owner of all viable economic use of the property, such a restriction does not violate the
takings clause insofar as it governs a property owner's future use of his or her property
. . . ."].) 12
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
12 A court's determination of whether a legislative enactment effects a compensable
taking without the necessity of a case-specific inquiry because it results in a physical
invasion of property or deprives a property owner of all economically beneficial or
productive use of the land goes to the facial constitutionality of the enactment. (Del Oro,
supra, 31 Cal.App.4th at p. 1076 ["Generally, a facial challenge presents an issue of law
and case-specific factual inquiry is not required."]; Hensler, supra, 8 Cal.4th at pp. 12-13
[rejecting claim that a compensable taking of plaintiff's property necessarily occurred
when ordinance was enacted because plaintiff conceded the ordinance "did not deny him
all economically feasible use of the property"; id. at p. 24 [referring to plaintiff's claim as
a "facial challenge . . . predicated on a theory that the mere enactment of the . . .
ordinance worked a taking of plaintiff's property"]; Lucas, supra, 505 U.S. at p. 1015,
fn. 6 [" ' "[T]he test to be applied in considering [a] facial [takings] challenge is fairly
straightforward. A statute regulating the uses that can be made of property effects a
taking if it 'denies an owner economically viable use of his land.' " ' "].)
22
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 administrative
agency will have the alternative of changing a decision for which compensation might be
required.' "].)
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
23
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 constitutionally 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.)
24
BBC contends policies 2.60.5 and 4.19 facially violate the unconstitutional
conditions doctrine because they do not satisfy the Nolan/Dolan "essential nexus" and
"rough proportionality" test. However, another limitation on the applicability of the
unconstitutional conditions doctrine to takings claims is that the doctrine, with its
attendant Nollan/Dolan test, generally is not applied to facial challenges. (Action
Apartment Ass'n v. City of Santa Monica (2008) 166 Cal. App. 4th 456, 470 (Action
Apartment) ["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."].)
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
25
"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.
BBC disagrees with this proposition and cites San Remo and the federal case Levin
v. City & County of San Francisco (2014) 71 F. Supp. 3d 1072 (Levin) as examples of
courts having adjudicated facial challenges based on the unconstitutional conditions
doctrine. BBC states that the City has mistakenly represented that San Remo did not
involve an unconstitutional conditions claim.
13 The Action Apartment court earlier stated that "[t]he United States and California
Supreme Courts have applied the Nollan/Dolan nexus and rough proportionality test only
when an adjudicative decision is made in the case of an individual developer's request for
approval of a project." (Action Apartment, supra, 166 Cal.App.4th at p. 460.)
26
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.) The federal district court applied the unconstitutional conditions doctrine and the
Nollan/Dolan test, and concluded the ordinance did "not pass constitutional muster"
because it was "a monetary exaction that 'lack[s] an essential nexus and rough
proportionality to the effects of the proposed new use of the specific property at issue.'
27
[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 [seeking reimbursement after payment of the challenged money demand]."
(Id. at p. 1079.) In any event, as a federal district court case, Levin is not binding
authority, and it is inapposite because none of the policies at issue in the present case
require an exaction in the form of payment of money. However, even assuming BBC's
challenges to policies 2.60.5 and 4.19 under the unconstitutional conditions doctrine do
not automatically fail because they are facial challenges, we conclude they fail for the
reasons explained below.
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
28
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 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.
29
1. Policy 4.19
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."
Section 30235 provides: "Revetments, breakwaters, groins, harbor channels,
seawalls, cliff retaining walls, and other such construction that alters natural shoreline
processes shall be permitted when required to serve coastal-dependent uses or to protect
existing structures or public beaches in danger from erosion and when designed to
eliminate or mitigate adverse impacts on local shoreline sand supply. Existing marine
structures causing water stagnation contributing to pollution problems and fishkills
should be phased out or upgraded where feasible."
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
30
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 principle 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 section
30235 to new or additional bluff retention devices does not constitute a physical invasion
of property or deprive blufftop property owners of all economically viable use of their
properties. The extent to which the policy would cause economic harm to particular
property owners can be determined only on a case-by-case basis through as-applied
challenges to the policy.
Finally, as noted above, California Building stated that the unconstitutional
conditions doctrine does not apply "where the government simply restricts the use of
property without demanding the conveyance of some identifiable protected property
interest (a dedication of property or the payment of money) as a condition of approval."
(California Building, 61 Cal.4th at p. 460, italics added.) "[T]here can be no valid
unconstitutional conditions takings claim without a government exaction of property
. . . ." (Id. at p. 457.) As the trial court correctly ruled, the condition on future
31
development imposed by policy 4.19 does not require an exaction but "simply places a
restriction on the way the homeowner may use its property." Specifically, policy 4.19
does not require a conveyance of money or property; it requires the property owner to
record a deed restriction against the property that expressly waives any future right under
section 30235 to new or additional bluff retention devices. Because policy 4.19 simply
restricts the use of property without demanding an exaction of a property interest or
money as a condition of approval, the unconstitutional conditions doctrine does not
apply.
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 under an express statutory directive to not apply
the Coastal Act in a way that would infringe constitutional rights. Section 30010
provides: "The Legislature hereby finds and declares that this division is not intended,
and shall not be construed as authorizing the [C]ommission, port governing body, or local
government acting pursuant to this division to exercise their power to grant or deny a
permit in a manner which will take or damage private property for public use, without the
payment of just compensation therefor. This section is not intended to increase or
decrease the rights of any owner of property under the Constitution of the State of
California or the United States."
32
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 property owner under the Constitution of the State of California or of the
United States."
Invalidating the policies on BBC's facial challenges before they are applied would
deprive the City and Commission the opportunity to apply them in a way that will not
result in unconstitutional takings without just compensation, as required by section 30010
and policy 5.9.5. And where specific application of a policy would constitute a taking
requiring compensation, facial invalidation before application would deny the City its
range of available options to avoid paying compensation for the taking, such as
exempting the property from the regulation, amending the regulation, or rescinding the
regulation. (Hensler, supra, 8 Cal.4th at pp. 11-12, 13.)
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
33
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,
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 [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, quoting Panos v. Great
34
Western Packing Co. (1943) 21 Cal. 2d 636, 637.) None of the property owners in the
City who are affected by the subject ALUP have had the opportunity to litigate the
validity or constitutionality of any of the policies in the ALUP as applied to them.
Therefore, the doctrines of res judicata and collateral estoppel do not bar them from
bringing future challenges to the application of policies to their specific properties. As
the Commission stated in its responding and opening brief, "Property owners in the City,
including individual members of BBC, will not be without a remedy regarding these
policies. They can always challenge the application of the policies to their properties." 14
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
14 Although it is unnecessary to address the issue, we note that the City and
Commission's argument that BBC's facial challenges to policies 4.19 and 4.22 are barred
under the doctrine of res judicata has merit. The City and Commission contend those
challenges are barred by res judicata because policies 4.19 and 4.22 were not added or
amended between BBC's first dismissed action and the present action. In Cal. Coastal
Com. v. Superior Court (1989) 210 Cal. App. 3d 1488, this court held that once a decision
by the Commission becomes final because it is not challenged by a petition for writ of
administrative mandate under section 30801 within 60 days, it is res judicata as to any
future challenge and cannot be later challenged in a collateral proceeding. (Cal. Coastal
Com., at pp. 1493-1494, 1496-1501, 1497, fn. 5.) Accordingly, the Commission's
decision to approve policies 4.19 and 4.22 became final when the prior action challenging
that decision was dismissed and, under the doctrine of res judicata, cannot be collaterally
challenged in the present action.
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.
35
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.
36