Modification: Citizens for South Bay Coastal Access v. City of San Diego

CITIZENS FOR SOUTH BAY COASTAL ACCESS,

Plaintiff and Respondent,

v.

CITY OF SAN DIEGO,

Defendant and Appellant.

No. D075387

(Super. Ct. No. 37-2017-00048213-CU-TT-CTL)

California Courts of Appeal

Fourth Appellate District

Division One

Filed March 16, 2020

THE COURT:

It is ordered that the opinion filed herein on February 18, 2020, be modified as follows:

1. On page 2, line 9, the sentence commencing with "Because the" and ending with "Commission's regulations" is modified to read as follows:

Because the Commission has certified the City's local coastal program, which includes specific exemptions that are applicable to this case, those provisions apply here rather than the Commission's regulations.

2. On page 15, line 7, the sentence commencing with "As we have" and ending with "by the commission" is modified to read as follows:

As we have already discussed, when the Commission has certified a local government's LCP, except in certain cases not relevant here, "the development review authority provided for in Chapter 7 (commencing with Section 30600) shall no longer be exercised by the commission."

3. On page 20, line 12, the sentence commencing with "However" and ending with "CDP decisions" is modified as follows:

However, because the Commission has certified the City's LCP, which includes specific exemptions applicable here, Public Resources Code section 30610, subdivision (b) and the regulations that the Commission promulgated thereunder do not apply to the City's CDP decisions in this case.

4. On page 20, line 14, the sentence commencing "As the Coastal" and ending with "portion thereof" is modified as follows:

As the Coastal Act makes clear, after a local government's LCP is certified by the Commission, except in certain cases not relevant here, "the development review authority provided for in Chapter 7 (commencing with Section 30600) shall no longer be exercised by the commission over any new development proposed within the area to which the certified local coastal program, or any portion thereof, applies and shall at that time be delegated to the local government that is implementing the local coastal program or any portion thereof."

5. On page 21, line 5, the sentence commencing "The development" and ending with "certified LCP" is modified as follows:

Except as otherwise provided in the Coastal Act, the development review authority provided for in Chapter 7 does not apply when a local government has obtained a certified LCP.

6. On page 21, at the end of line 7, add as footnote 6 the following footnote, which will require renumbering of all subsequent footnotes:

6. To be clear, Public Resources Code, section 30519, subdivision (a) does not have the effect of rendering inapplicable all of the provisions appearing in Chapter 7 when a local government has adopted a certified LCP. Importantly, Public Resources Code, section 30519, subdivision (a) does not refer to the whole of Chapter 7, but only to "the development review authority provided for in Chapter 7," and it also excepts "appeals to the commission" (Pub. Resources Code, § 30519, subd. (a), italics added). Further, as subdivision (b) makes clear, subdivision (a) does not apply in cases where the Commission still retains original jurisdiction to issue a coastal development permit, including development in the coastal zone "on any tidelands, submerged lands, or on public trust lands," or "within any state university or college within the coastal zone," (Pub. Resources Code, § 30519, subd. (b)), and Public Resources Code section 30601.3 makes clear that Public Resources Code, section 30519, does not apply when a consolidated coastal development permit application is appropriate. Accordingly, even after a local government has adopted a certified LCP, any provision in Chapter 7 concerning appeals to the Commission remain fully applicable, as well as all other provisions in Chapter 7 that do not pertain to the exercise of "development review authority provided for in Chapter 7." (Pub. Resources Code, § 30519, subd. (a).) Because it is beyond the scope of this opinion, we do not opine on which provisions in Chapter 7 the Legislature intended to fall outside the scope of the "development review authority provided for in Chapter 7." The relevant point for our purposes is that Public Resources Code section 30610, subdivision (b) and the regulations that the Commission promulgated thereunder plainly concern "the development review authority provided for in Chapter 7," and thus do not apply to the City's issuance of a coastal development permit because the City has adopted a certified LCP that contains specific exemptions.

7. On page 22, delete the last sentence of the first full paragraph, and replace it with the following:

Instead, the Coastal Act expressly allows for the City's review of an application for a coastal development permit to be governed by its certified LCP provisions.

There is no change in the judgment.

McCONNELL, P. J.