CEEED v. California Coastal Zone Conservation Commission

This appeal involves the constitutionality of the Coastal Zone Conservation Act of 1972 (Pub. Resources Code, § 27000 et seq.).^[1] Plaintiffs^[2] brought a declaratory relief action alleging that the Act is on its face subject to numerous constitutional infirmities. The court below upheld the constitutionality of the Act against each and all of the attacks and entered judgment accordingly. Plaintiffs appeal from the judgment.

Preliminarily, we shall review the salient features of the statute under review.

Proposed as an initiative measure known as “Proposition 20,” the Act was approved by the voters at the general election of November 7, 1972. It declares the California coastal zone to be a “delicately balanced ecosystem” whose preservation and protection for present and succeeding generations are of paramount concern to the state and nation. (§ 27001.) The coastal zone is defined as the area of the state seaward to the outer limits of the state’s jurisdiction and landward to the nearest coastal mountain range except that in Los Angeles, Orange and San Diego counties, the landward limit is the nearest coastal mountain range or five miles from the mean high tide line, whichever distance is the shorter. (§ 27100.)

The Act creates the California Coastal Zone Conservation Commission (Commission) and six regional commissions (§§ 27200-27201) to undertake studies to determine the ecological planning principles and assumptions needed to ensure conservation and protection of coastal zone resources and, based upon such studies and in full consultation with all affected public and private interests, to develop and adopt a California Coastal Zone Conservation Plan (Coastal Zone Plan). (§§ 27001, subd. (b), 27300-27304.) Each regional commission, in cooperation with local agencies and after public hearings in each county within its region, is directed to prepare and submit its recommendations to the Commission no later than April 1, 1975. No later than December 1, 1975, the Commission must adopt and submit a Coastal Zone Plan to the Legislature for its adoption and implementation. (§ 27320.)

To ensure that developments pending formulation and adoption of a Coastal Zone Plan will be consistent with the objectives of the Act, any

Unlike the ordinances invalidated in the cases cited by plaintiffs, the Coastal Initiative is not a zoning measure. It “does not zone any property but merely requires the Commission to formulate a coastal zone plan for submission to the Legislature.” (State of California v. Superior Court, 12 Cal.3d 237 , 255 [ 115 Cal.Rptr. 497 , 524 P.2d 1281 ].) And, unlike the zoning regulations involved in the cited cases, the Coastal Initiative does not restrict land use permanently or for an indefinite period. Hie only land use restriction imposed by the Act and of which plaintiffs complain is the control over development in the permit area pending formulation of the Coastal Zone Plan. That restriction is simply “an interim measure to assure that developments in the coastal zone are consistent with the objectives

One important reason for less stringent procedural requirements for stopgap land use regulation is that the hardship visited on property owners is less severe than in the case of a conventional zoning ordinance permanently or indefinitely regulating land use. “Reasonableness ... is the yardstick by which the validity of a zoning ordinance is to be measured and

Plaintiffs suggest that had there been a hearing the following issues would have been argued: Definition of the terms “development” and “environment,” powers of the Commission and burden of proof in permit hearings, and relation of the Act to municipal home rule powers. It is settled law that procedural amendments to a zoning ordinance may be adopted without prior notice and hearing. (Adler v. City Council, 184 Cal. App.2d 763 , 777-778 [ 7 Cal.Rptr. 805 ].) Likewise, definition of the terms embodying the fundamental policy of the Act is clearly the sort of legislative or “quasi-legislative” function which may properly be exercised without prior notice and hearing. (Wood v. Public Utilities Commission, 4 Cal.3d 288 , 292 [ 93 Cal.Rptr. 455 , 481 P.2d 823 ] [app. dism., 404 U.S. 931 ( 30 L.Ed.2d 245 , 92 S.Ct. 293 )]; Security-First Nat. Bk. v. Franchise Tax Bd., 55 Cal.2d 407 , 419-420 [ 11 Cal.Rptr. 289 , 359 P.2d 625 ] [app. dism., 368 U.S. 3 ( 7 L.Ed.2d 16 , 82 S.Ct. 15 )]; see also, Chesebro v. Los Angeles Co. Dist., 306 U.S. 459 , 464 [ 83 L.Ed. 921 , 926, 59 S.Ct. 622 ].)^[7]

Scott v. City of Indian Wells, 6 Cal.3d 541 [ 99 Cal.Rptr. 745 , 492 P.2d 1137 ], does not undermine past decisions upholding interim land use regulations adopted without prior notice and hearing. Scott involved the validity of a local administrative proceeding in connection with an appli

The Escondido decision rests on the traditional power of government to regulate and even prohibit activities constituting a public nuisance. If local governmental interest in highway safety and preservation of community aesthetic values is sufficient to support enactment, without notice and hearing, of a city ordinance prohibiting billboards near freeways, it would seem necessarily to follow that the state may, without prior notice and hearing, adopt an interim permit system to preserve and protect our vital coastal physical and aesthetic resources.

The law of nuisance, called the oldest form of land use control,^[8] evolved from the ancient maxim “sic utere tuo ut alienum non laedes”—one must so use his rights as not to infringe on the rights of others. At common law a public nuisance was defined as an act or omission which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all “Her Majesty’s subjects.”^[9] (Prosser, Torts (4th ed. 1971) § 88, p.583.) Subject to constitutional barriers against unreasonable or arbitrary action, the Legislature may declare that a specified condition or activity constitutes a public nuisance. (City of Bakersfield v. Miller, 64 Cal.2d 93 , 99 [ 48 Cal.Rptr. 889 , 410 P.2d 393 ] [cert. den., 384 U.S. 988 ( 16 L.Ed.2d 1005 , 86 S.Ct. 1890 )].) The power of the state to declare acts injurious to the state’s natural resources to constitute a public nuisance has long been recognized in this state. (People v. K. Hovden Co., 215 Cal. 54 , 56 [ 8 P.2d 481 ].) Contemporary environmental legislation represents an exercise by government of this traditional power to regulate activities in the nature of nuisances: “Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power.” (Huron Portland Cement Co. v. Detroit, 362 U.S. 440 , 442 [ 4 L.Ed.2d 852 , 855, 80 S.Ct. 813 , 78 A.L.R.2d 1294 ].) As one Pennsylvania court observed: “There is no doubt that, because of the recent notoriety of the condition of the environment that there has been formed

We turn to plaintiffs’ contention that the Act constitutes an invalid state intrusion into municipal affairs of chartered cities in violation of article XI, section 5, subdivision (a), of the California Constitution.^[10] Specifically, it is urged that the interim permit system violates the municipal home rule concept since zoning, planning and issuance of permits for land development are matters over which chartered cities have plenary power. Further, plaintiffs argue that to require a municipality to secure Commission approval for the construction of municipal projects in the permit area unlawfully interferes with the conduct of city business. The contentions are devoid of merit.

At the outset it should be noted that the Act does not preempt local regulation pertaining to planning, zoning and permit issuance. Rather, it expressly provides that the permit required by the Act is in addition to any required by law from “any city, county, state, regional or local agency.” (§ 27400.) The municipal affairs doctrine does not foreclose state legislation with respect to municipal affairs of a home rule city; it is only in the event of a conflict between local and state regulation or state preemption of local regulation that the question whether the matter regulated is a municipal affair or of statewide concern becomes determinative. (Bishop v. City of San Jose, 1 Cal.3d 56 , 62 [ 81 Cal.Rptr. 465 , 460 P.2d 137 ].)

In any event, assuming, arguendo, that the Act be deemed inconsistent with local regulations, it clearly involves a matter of statewide concern.

Resolution of the question whether a particular subject is solely a municipal affair or a matter of statewide concern is a judicial function. (Bishop v. City of San Jose, supra, 1 Cal.3d 56 , 62.) However, there has

The Coastal Initiative finds and declares that the coastal zone is a “distinct and valuable natural resource belonging to all the people,” that it exists as a “delicately balanced ecosystem” and “that the permanent protection of the remaining natural and scenic resources of the coastal zone is a paramount concern to present and future residents of the state and nation.” (§ 27001.) Not only are these legislative findings and declarations entitled to great weight (People ex rel. Younger v. County of El Dorado, supra, 5 Cal.3d 480 , 493; Bishop v. City of San Jose, supra, 1 Cal.3d 56 , 63), they are largely matters of common knowledge, fully documented by governmental studies.^[11] “The deleterious consequences of haphazard community growth in this state and the need to prevent further random development are evident to even the most casual observer.” (Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110 , 120 [ 109 Cal.Rptr. 799 , 514 P.2d 111 ].) This is particularly true of our 1,000-mile coastline. Visual, as well as physical, access to large segments of our beaches has been obstructed by residential, commercial and industrial development. Dredging and filling of lagoons and estuaries for boat marinas to promote residential

More than three-fourths of California’s 20,000,000 population live within an hour’s drive of the Pacific Ocean. Each year thousands of people are turned away from coastal state parks and campgrounds because of inadequate facilities.

Resolution of the environmental and ecological problems arising out of the competing and conflicting demands made upon the use and enjoyment of the California shoreline has proven to be beyond the capabilities of local governmental agencies. The present coastal land allocation system has failed to protect the public interest. It has been described as “largely a market-oriented system in which uses that desire access to coastal zone resources pay a rent or price per acre for the land they wish to occupy. The use which occupies each acre is therefore, in theory, the highest bidder for that acre.”^[12]

There is a close parallel between the regional interest which the court found to be present in the Lake Tahoe Basin in People ex rel. Younger v. County of El Dorado, supra, 5 Cal.3d 480 , and the statewide interest in the California coastline. In upholding the Tahoe Regional Planning Compact, the court aptly stated at page 494: “Only an agency transcending local boundaries can devise, adopt and put into operation solutions for the problems besetting the region as a whole.”

Although constitutional issues cannot be determined by a “consensus of current public opinion” (see Parr v. Municipal Court, 3 Cal.3d 861 , 870 [ 92 Cal.Rptr. 153 , 479 P.2d 353 ] [cert. den., 404 U.S. 869 ( 30 L.Ed.2d 113 , 92 S.Ct. 46 )]), or an election (Weaver v. Jordan, 64 Cal.2d 235 , 241 [ 49 Cal.Rptr. 537 , 411 P.2d 289 ] [cert. den., 385 U.S. 844 ( 17 L.Ed.2d 75 , 87 S.Ct. 49 )]), the fact,that the Act was proposed as a statewide initiative and passed by the voters at a statewide election is evidence that the preservation and protection of the coastal resources are matters of concern to

The cases relied upon by plaintiffs are not authority for the proposition that planning and zoning are exclusively municipal affairs. Brougher v. Board of Public Works, 205 Cal. 426 [ 271 P. 487 ], merely held that the manner of enacting a zoning ordinance is a municipal affair. Similarly, Lindell Co. v. Board of Permit Appeals, 23 Cal.2d 303 [ 144 P.2d 4 ], declared, by dictum, that the procedure for issuance of a building permit is a municipal affair. While Fletcher v. Porter, supra, 203 Cal.App.2d 313 , 320, and O’Loane v. O’Rourke, 231 Cal.App.2d 774 , 783 [ 42 Cal.Rptr. 283 ], contain certain strong dicta to the effect that zoning is a municipal affair and not a matter of statewide legislative concern, the actual holdings in those cases pertained to the method of enacting zoning ordinances.

Although planning and zoning in the conventional sense have traditionally been deemed municipal affairs, where the ecological and environmental impact of land use affect the people of the entire state, they can no longer remain matters of purely local concern. In People ex rel. Younger v. County of El Dorado, supra, 5 Cal.3d 480 , an argument similar to that advanced by plaintiffs in the case at bench was rejected by the Supreme Court. It was there urged that the Tahoe Regional Planning Compact constituted an invalid legislative attempt to confer planning and zoning powers upon the Tahoe Regional Planning Agency in violation of article XI, section 11 of the California Constitution.^[13] The court answered the contention by pointing out that the power conferred on the agency was to adopt and implement regional plans and concluded: “It is beyond dispute, then that the powers as to planning and zoning which the counties single out as violative of the Constitution are not powers local in nature and purpose.” (At p.' 497.) The court pointed out that the concept of municipal affairs changes with changing conditions and “[w]hen the effects of change are felt beyond the point of its immediate impact, it is fatuous to expect that controlling such changes remains a local problem to be- solved by local methods. Old attitudes confer no irrevocable license to continue looking with unseeing eyes. The Compact gives the Agency power to adopt regional planning and regional zoning ordinances to solve regional problems of

In summary, the municipal affairs concept does not preclude the state from regulating land use when necessary to further the state’s interest. (See Sato, “Municipal Affairs’’ in California, supra, 60 Cal.L.Rev. 1055 , 1097-1098.) The Coastal Initiative does not violate article XI, section 5, subdivision (a) of the California Constitution.

Ill

The contention that the Act constitutes an unlawful taking of private property for public use without just compensation merits little discussion.

That issue was squarely decided by the Supreme Court in State of California v. Superior Court, supra, 12 Cal.3d 237 , 252-255. There, following Commission denial of a permit to develop land in the permit area, the developer filed a petition for writ of mandate against the Commission alleging several causes of action including one for inverse condemnation. Among its several rulings on the Commission’s demurrer to the complaint, the trial court overruled the demurrer to the inverse condemnation cause of action. As a basis for the inverse condemnation cause of action, the complaint alleged the permit was denied in order that its land would “remain undeveloped and devoted to, and held for, public use as open space land.” Accepting the truth of the allegations for the purpose of the demurrer, the Supreme Court held that it nevertheless failed to state a cause of action in inverse condemnation. The court’s decision was based, not on the theory that the state is immune from a suit in inverse condemnation for an alleged unconstitutional land use regulation or administrative action taken thereunder,^[14] but on the substantive ground that denial of a permit on the basis that the land proposed to be developed may ultimately be designated for public use in the Coastal Zone Plan to be adopted by the Commission did not “at the time” amount to a taking of private property for public purpose without just compensation. The court noted that the rationale underlying the Coastal Initiative was based on the McAteer-Petris Act creating the San Francisco Bay Conservation and Development Commission whose constitutionality was upheld against a like attack in Candlestick Properties,

Standards for the issuance of building and land use permits couched in general health, safety or welfare terms similar to those upheld in Candlestick have been uniformly upheld against the charge that they confer unbridled discretion on the administrative body or are unconstitutionally vague. (City & County of S. F. v. Superior Court, 53 Cal.2d 236 , 250 [ 1 Cal.Rptr. 158 , 347 P.2d 294 ]; Garavatti v. Fairfax Planning Com., 22 Cal.App.3d 145 , 150 [ 99 Cal.Rptr. 260 ]; City of Santa Clara v. Santa Clara Unified Sch. Dist., 22 Cal.App.3d 152 , 163 [ 99 Cal.Rptr. 212 ]; Mitcheltree v. City of Los Angeles, 17 Cal.App.3d 791 , 797 [ 95 Cal.Rptr. 76 ]; Van Sicklen v. Browne, 15 Cal.App.3d 122 , 126-127 [ 92 Cal.Rptr. 786 ]; Stoddard v. Edelman, 4 Cal.App.3d 544 , 548 [ 84 Cal.Rptr. 443 ].)^[15]

The Coastal Initiative sets out the goals to be achieved and the standards for permit issuance with the same, if not greater, clarity than expressed in the McAteer-Petris Act. (Jackson & Baum, Regional Planning: The Coastal Zone Initiative Analyzed in Light of the BCDC Experience, 47 State Bar J. 427, 488-490.)^[16] Before a permit is issued, the regional commission must

Plaintiffs seek to bring the instant case within the rationale of Bayside Timber and like cases by contending that the lack of standards is “magnified by the built-in bias of the commissions against development.” The charge is based on section 27220 prescribing the qualifications for public members of the Commission or regional commissions.^[17] The argument is specious.

The policy against interim developments in the permit area which may result in irreversible commitment of land use to purposes inconsistent with the Coastal Zone Plan ultimately to be developed is not fixed by the statutory provision for the composition of the commissions. The “bias” against uncontrolled, haphazard development along the shoreline is the declared policy of the Act. Education, training and experience in the analysis of environmental information and expertise in conservation, ecological sciences, planning and recreation are desirable, if not essential, qualifications for those to whom the administration of the Act has been committed. Commissioners possessing those qualifications will be better equipped to evaluate scientific, environmental, ecological, and planning data and render informed decisions than those lacking such training and experience. The fact, if it be a fact, that members possessing the statutory qualifications may be sympathetic towards the objectives of the Act is not a valid criticism: It is the statutory duty of the commissions to implement the policies of the Act. (§ 27001, subd. (d).) “Administrators who are unsympathetic toward the legislative program are very likely to thwart the democratic

The foregoing discussion disposes of plaintiff’s subsidiary contention that the standards governing permit issuance are void for vagueness. Cases relied upon by plaintiffs all involve statutes imposing restrictions on the exercise of fundamental rights. (Morrison v. State Board of Education, 1 Cal.3d 214 , 231 [ 82 Cal.Rptr. 175 , 461 P.2d 375 ]; Orloff v. Los Angeles Turf Club, 36 Cal.2d 734 , 739 [ 227 P.2d 449 ]; Perez v. Sharp, 32 Cal.2d 711 , 728 [ 198 P.2d 17 ].)

V

Plaintiff’s contention that the Act fails to provide for procedural due process in permit application proceedings is without merit.

While administrative proceedings must comport with procedural due process, no particular form of notice or proceeding is required. A statute providing for reasonable notice and reasonable opportunity to be heard is sufficient. (Anderson Nat. Bank v. Luckett, 321 U.S. 233 , 246 [ 88 L.Ed. 692 , 704-705, 64 S.Ct. 599 , 151 A.L.R. 824 ]; Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75 , 80-81 [ 87 P.2d 848 ]; Baker v. Wadsworth, 6 Cal.App.3d 253 , 264 [ 85 Cal.Rptr. 880 ].)

The permit procedure prescribed by the Act provides for notice and public hearing before the regional commission (§ 27420), for appeals to the Commission by an applicant or any person aggrieved by a permit approval (§ 27423, subd. (a)), for de novo public hearings by the Commission on appeals involving substantial issues (§ 27423, subd. (c)), and for judicial review of an action or decision of the Commission or regional commission by filing a petition for writ of mandate (§ 27424). The Act on its face fully guarantees procedural due process to permit applicants as well as to persons aggrieved by a decision or action of the Commission or regional commissions.

Plaintiffs complain that the Act places on the applicant the burden of

It does not follow, however, that all regulations affecting travel, however indirect or inconsequential, constitute invasions of the fundamental right. The right may be invoked if the regulations “unreasonably burden or restrict” the freedom of movement. (Shapiro v. Thompson, supra, 394 U.S. 618 , 629 [ 22 L.Ed.2d 600 , 612].) In a particular case the question is whether the travel inhibited is of sufficient importance to individual liberty to give rise to a constitutional violation. (See Comment, The Supreme Court of California 1972-1973, 62 Cal.L.Rev. 408 , 440.) Thus far the United States Supreme Court has invoked the right to travel only in cases involving invidious discrimination, durational residence requirements or direct restrictions on interstate or foreign travel. (See, e.g., Shapiro v. Thompson, supra, Kent v. Dulles, supra, 357 U.S. 116 ; Dunn v. Blumstein, supra, 405 U.S. 330 ; Memorial Hospital v. Maricopa County, supra, 415 U.S. 250 .) Our Supreme Court found no infringement of the right in a city charter provision requiring all officers and employees of the city to be or become residents of the city within six months after their appointment or employment. (Ector v. City of Tor

We fail to see how the Coastal Initiative interferes with the fundamental right to travel. It is not discriminatory; it imposes no durational residence requirement; it exacts no penalty for exercising the right to travel or to select one’s place of residence. In short, it has no chilling effect on an individual’s freedom of movement. To paraphrase the language of our Supreme Court in Ector v. City of Torrance, supra, 10 Cal.3d 129 , 136, plaintiffs are stretching their case mightily to bring it within the scope of the fundamental right to travel.

The Pennsylvania Supreme Court cases cited by plaintiffs are inapposite. They involved municipal zoning restrictions designed to prevent future migration into a city in order to preserve for its residents its rural and secluded atmosphere. (National Land and Investment Co. v. Kohn, 419 Pa. 504 [ 215 A.2d 597 ]; Appeal of Girsh, 437 Pa. 237 [ 263 A.2d 395 ]; Appeal of Kit-Mar Builders, Inc., 439 Pa. 466 [ 268 A.2d 765 ].) The regulations were invalidated on the ground that “[a] zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the administration' of public services and facilities can not be held valid.” (National Land and Investment Co., v. Kohn, supra, 215 A.2d 597 , 612.)

Similarly, Construction Ind. Ass’n of Sonoma Cty. v. City of Petaluma, 375 F.Supp: 574,^[20] cited by plaintiffs, was concerned with a Petaluma ordinance enacted to control its growth rate. According to the court’s findings and conclusions; “The express purpose and the intended and actual effects of the ‘Petaluma Plan’ have been to exclude substantial numbers of people who would otherwise have elected to immigrate into the city.” (At p. 581.) Persuaded by the rationale of the Pennsylvania decisions discussed above, the court determined that the “Petaluma Plan” infringed upon the fundamental right to travel. Applying the strict scrutiny test, the court found that there was no compelling governmental interest justifying the plan and declared it invalid. In so doing, however, the court hastened to point out that the issue before it was not whether “local government may engage in any number of traditional zoning efforts which have been common throughout our history, such as providing for a certain density of population in a given neighborhood, or standards for the type and quality of construction, etc.” (At p. 587.) In the court’s words, the only issue presented was “whether

It is far-fetched to suggest that the purpose of the Coastal Initiative is “to keep others away” from the permit area. Its objective is to protect, conserve and, where possible, restore the physical and aesthetic resources of the coastline for the enjoyment of all the people of the state. Rather than inhibit or restrict the right to travel, the Act seeks to promote it by providing the public greater physical and visual access to the beaches which would otherwise remain or become private enclaves of adjoining property owners. Plaintiffs’ contention that the Act infringes upon the fundamental right to travel is without substance.

Conclusion

Plaintiffs’ charge that the Coastal Initiative represents an example of the majority unfairly “trampling” the rights of the minority through the use of the initiative process is unfounded. While on occasions the initiative process has been used in California to enact legislation violative of fundamental rights of minority groups,^[22] the Coastal Initiative is not such a measure. It seeks to further legitimate and commendable governmental goals by constitutional means. It is free of the constitutional infirmities charged by plaintiffs.

Judgment is affirmed.

Kerrigan, Acting P. J., and Kaufman, J., concurred.