Exploding vocabulary

Language is all the rage these days. From the proper use of pronouns to the rewriting (some might say bowdlerizing) of classic works of fiction, the use of words has become front page news. The reports of California appellate courts are following right along.

Our text for today comes from the recent court of appeal decision in Spencer v. City of Palos Verdes Estates (2/27/2023) no. B309225. The language issue in the case turns on the meaning of the word "development." This was, as you probably suspected, no ordinary development. And the story is fascinating.

The setting for the story is the wealthy enclave of Palos Verdes Estates in Los Angeles County. It is apparently home to a number of prime surfing spots, including one at Lunada Bay. The surfing at Lunada Bay is so spectacular that the area is guarded by a local group of citizens known as the Lunada Bay Boys (or just the Bay Boys), a group so notorious as to warrant its own Wikipedia page and description as a "surfer gang." In addition to enjoying the surf themselves, the Bay Boys apparently made it their mission to keep the area clear of outsiders. According to the complaint, they engaged in multifarious acts of intimidation, including physical obstruction, rock throwing, assault, vandalization of vehicles and the like.

So far, as interesting as it may be, that is only a run of the mill story of a turf war between groups of civilians. But (aside from the Bay Boys) the case involved the City of Palos Verdes Estates as a defendant and a claim that the city violated the California Coastal Act, Pub. Res. Code § 30000 et seq.). How they got there is a fascinating adventure in lexicography.

As pertinent here, the Coastal Act requires a permit for all "development" in the coastal zone. Hmm. So far, all we have discussed is harassment of outsiders. Development? Permit? Call me old school, but "development" has always seemed to me to imply building something or demolishing something in preparation for building something else. Read on. We have inventive courts.

While the case also deals with the construction of a "rock fort" used by the Bay Boys as their headquarters (an obvious development), we will skip that and head for the more interesting issue, i.e., how does harassment transmogrify into development? One other allegation you need to know: The Bay Boys' activities have gone on for some 40 years and the city is charged with conspiring with the Bay Boys to exclude outsiders and "protect" Lunada Bay.

The judicial analysis starts with the Coastal Act. One of the prime goals of that statute is to "maximize public access" to the coast. Pub. Res. Code §§ 30001.5, 30200. A large part of the Coastal Act is devoted to the permit process, through which control is exercised over coastal development. In that context, the statute then defines development as including many things that we would ordinarily recognize as development, but also as including "change in the intensity of use of water, or of access thereto ...." Pub. Res. Code § 30106.

In analyzing the facts underlying the Lunada Bay case, the court actually had some earlier case law on which to build. In Greenfield v. Mandalay Shores Community Assn. (2018) 21 Cal.App.5th 896, the court concluded that a ban on short-term rentals literally changed the intensity of use and access to coastal residences and thus qualified as development. Although the ban did not erect a physical barrier to access, it created a monetary barrier, and that was sufficient to require a development permit. To the same effect regarding the ramifications of a ban on short-term rentals as impacting coastal access by low-income residents and tourists see Kracke v. City of Santa Barbara (2021) 63 Cal.App.5th 1089.

In Surfrider Foundation v. Martin's Beach (2017) 14 Cal.App.5th 238, the court went a bit further and held that putting up a "closed" sign (eliminating parking and a path to the beach) satisfied the statutory definition of development. Martin's Beach provided the penultimate nail for the coffin in this analysis when it concluded that "the Coastal Act's definition of 'development' goes beyond what is commonly regarded as a development of real property and is not restricted to activities that physically alter the land or water. What is important for purposes of section 30106 in the present case is that appellant's conduct indisputably resulted in a significant decrease in access to the beach." 14 Cal.App.5th at 252 (cleaned up).

In short, the court concluded that "[t]here is no structures versus conduct dichotomy for 'development' within the meaning of the caselaw. Structures are development and conduct may be too, if it impacts access."

The final piece in the puzzle was determining how to hold the city responsible for failing to obtain a coastal development permit for the Bay Boys' activities. Simple, said the court, at least at the pleading stage. The complaint alleges that the city was complicit with the Bay Boys in their intimidating activities and supported them.

Give the court credit for being inventive, and for lining up some prior appellate decisions that appear to support its conclusion. I would, however, offer this dissenting view. At least the earlier cases on which this opinion says it relies involved the actual use or non-use of some "developed" portion of the coastal area. That is, restricting the type of rental use that may be made will actually impact the use of the coastal zone. The same is true of closing a parking lot and access road that had previously been open. Each of those decisions may have seemed a stretch at the time, as none involved what ordinary folks would describe as development. But at least they were close.

Allegedly conspiring with a gang of local thugs to keep unwanted strangers out of town and concluding that such a conspiracy required the city to obtain a development permit to validate the local harassment seems a bridge too far. (It may actually be a step worse than that. As the Coastal Commission had approved the city's local coastal program, the city was authorized to issue its own coastal development permits. So it could theoretically issue itself a permit to harass strangers.) Does the court of appeal really expect the city to grant itself a permit or seek a permit from the Coastal Commission to support organized harassment of outsiders (including various criminal actions) by its residents? For that is what the bottom line of all this discussion is: a requirement to apply for a coastal development permit. Really? A state permit to harass?

There is still time to repair this. The court of appeal could decide to rehear the matter and conclude that whatever else the city and the Bay Boys may have been up to, and whatever else they may be liable for, the idea of requiring a permit to engage in harassing activities seems a bit of a stretch, even for a statute that has been broadly interpreted and applied. Barring that, the California Supreme Court could grant review and consider this unique issue on its own. Although the city should certainly face liability for complicity in harassment of non-local surfers (including assault and vandalism), expansion of the Coastal Act to include obtaining a permit to harass cannot be the answer.