New California Coastal Laws for 2018 - Development, Accommodations, Sea Rise and Public Access

by Best Best & Krieger LLP

Best Best & Krieger LLP

For California coastal issues, 2017 was a busy year, both in the courts and the state Legislature.

Three significant court decisions were handed down:

  • Banning Ranch Conservancy v. City of Newport Beach held that a city’s Environmental Impact Report was inadequate because it omitted any consideration of potential or previously identified environmentally sensitive habitat areas under the California Coastal Act of 1976.
  • Lynch v. California Coastal Commission held that property owners had forfeited their right to challenge a Coastal Commission action by constructing the improvements that the Commission authorized.
  • Surfrider Foundation v. Martins Beach 1, LLC concluded that certain actions taken by a property owner resulting in a change in access to Martins Beach constituted “development” requiring a coastal permit and that requiring the property owner to maintain prior levels of access did not constitute a per se physical “taking.” 

In addition to these court decisions, the Legislature passed several new bills that will go into effect Jan. 1.
First, AB 250 requires the State Coastal Conservancy to develop and implement a Lower Cost Coastal Accommodations Program. The Program’s purpose is to improve the availability of lower-cost accommodations within one and one-half miles of the coast. The new law also authorizes the California Coastal Commission to reclaim any in-lieu fee paid by developers not expended within seven years of its deposit, and reassign the fee for use for low-cost coastal accommodation and visitor-serving facilities.
This new law comes on the heels of a study released this year by University of California, Los Angeles Institute of the Environment and Sustainability, which reported that 75 percent of Californians say the lack of affordable options for overnight accommodations is a problem. Indeed, the Coastal Commission attempted to force a San Diego hotel developer to set aside 25 percent of its new hotel rooms at $106 per night. When the Commission was challenged in court, the court concluded that the Commission lacked the power to impose such a condition. Rather than complying with the trial court ruling, the Commission appealed that decision.
The Legislature also passed AB 184, which extends the requirement that the State’s Natural Resources Agency create and maintain a website devoted to planning for sea level rise until Jan. 1, 2023. As part of that website development and maintenance, various state and private entities are required to provide the Agency with any sea level rise planning information that they possess. This law reinforces the State’s emphasis on sea level rise issues — which are not being addressed solely at the state level. Some local jurisdictions, including the City of Imperial Beach and the counties of San Mateo and Marin, have sued various oil companies, alleging damages as a result of anticipated sea level rise conditions they claim are caused by petroleum products.
Also passed was SB 367, which will allow leases of up to 66 years for tidelands that are held by the County of Orange. Previously, such leases could not exceed 50 years. This law was sought as part of an effort to revitalize the Dana Point Harbor. The County, which oversaw such revitalization, believed that it will have better chances of redeveloping the Harbor if it is able to enter into longer-term leases with private entities than were previously allowed by law.
Finally, the Legislature passed, but Gov. Jerry Brown vetoed, a bill that would have established a separate state fund to acquire a public access route to and along the Martins State Beach. Brown said he vetoed the bill because it prevented the use of eminent domain and, therefore, limited the State’s options. He also said that the public’s right to access Martins Beach would be established by way of further judicial and administrative (i.e., Coastal Commission) proceedings. Indeed, following the court of appeal decision, and under threat of hefty $11,000 per day fines from the Coastal Commission, the property owner did commit to maintaining pre-existing public access to the beach. The California Supreme Court declined to review the matter.
As can be seen, the Coastal Commission was handed several favorable court decisions by the California Supreme Court and the Court of Appeal, as well as new laws by the Legislature, as it enters 2018.

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