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October 6, 2011

Program Satisfied CEQA for Amendment to Local Coastal Plan

California Coastal Commission’s “Substitute Document” Prepared Under Its Certified Regulatory Program Satisfied CEQA for Amendment to Local Coastal Plan

Ross v. California Coastal Commission [Second Appellate District No. B225796; filed September 9, 2011]

By Andrea A. Matarazzo

The California Coastal Commission was established by voter initiative in 1972 (Proposition 20) and later made permanent by the Legislature through adoption of the California Coastal Act of 1976.  In partnership with coastal cities and counties, the Coastal Commission plans and regulates the use of land and water in the coastal zone.  Development activities, which are broadly defined by the Coastal Act to include (among others) construction of buildings, divisions of land, and activities that change the intensity of use of land or public access to coastal waters, generally require a coastal permit from either the Coastal Commission or the local government.

Implementation of Coastal Act policies is accomplished primarily through the preparation of local coastal programs (“LCPs”) that must be completed by each of the 15 counties and 60 cities located in whole or in part in the coastal zone.  Completed LCPs must be submitted to the Commission for review and approval.  An LCP includes a land use plan (“LUP”), which may be the relevant portion of the local general plan, and the zoning ordinances, maps, and other legal instruments necessary to implement the land use plan.  Amendments to certified LUPs and LCPs only become effective after approval by the Coastal Commission.  The Coastal Commission’s regulatory program pursuant to the Coastal Act has been certified by the Secretary of the Natural Resources Agency as the functional equivalent of an environmental impact report (“EIR”) for compliance with CEQA.  (Pub. Resources Code, § 21080.5; CEQA Guidelines, § 15251, subd. (c).)

The substantive and procedural requirements for environmental documentation used in a certified regulatory program are those specified in Public Resources Code section 21080.5, and CEQA Guidelines section 15252.  The Court of Appeal in this case applied those provisions in evaluating plaintiffs’ procedural and substantive challenges to the Coastal Commission’s approval of the City of Malibu’s local coastal program amendment.  The court noted that some of the parties’ briefing relied on the requirements applicable to an EIR.  “No doubt,” the court explained, “there is an overlap between the requirements of a substitute document prepared for use in a certified regulatory program and those applicable to the preparation of an environmental impact report.  We need not describe in detail how the requirements for a negative declaration or an environmental report, on one hand, and a certified program substitute document, on the other, differ or are the same.  Rather, we apply the statutory and regulatory requirements specified in Public Resources Code section 21080.5 . . . and Guidelines section 15252.”  In so doing, the appellate court concluded that by way of its certified regulatory program, the Coastal Commission had complied with CEQA regarding the required public review period, the determination of the lead agency, and various substantive aspects of the environmental review such as alternatives and cumulative impacts.

Under Public Resources Code section 21080.5, subdivision (d)(3)(B), a certified regulatory program’s “plan or written documentation” must be available for a reasonable time for review and comment by other agencies and the public.  In this case, the Secretary of the Resources Agency certified the Coastal Commission’s regulations relating to its review of local coastal program amendments, including the seven-day notice for staff reports. By providing 13 days’ notice of the filing of the staff report, the court reasoned, the Coastal Commission complied with CEQA.  In reaching its conclusion, the appellate court distinguished this case from the opinions in Ultramar, Inc. v. South Coast Air Quality Management District (1993) 17 Cal.App.4th 689, 702-703, and Joy Road Area Forest and Watershed Assn. v. California Department of Forestry and Fire Protection (2006) 142 Cal.App.4th 656, 667-668.  In the court’s view, “[n]either Ultramar nor Joy Road is controlling,” because “[n]either Ultramar nor Joy Road involves . . . a certified regulatory program which expressly deviates from the 30-day notice time frame specified in Public Resources Code section 21091, subdivision (a) for a draft environmental impact report.”

 

The Court of Appeal also considered the Coastal Commission’s argument that it functioned as a responsible agency rather than the lead agency for the project, and as such, had more limited CEQA duties.  The Coastal Commission pointed out that the City was the first public agency to review the project, and the City was the only agency involved in review of the project that has general governmental powers.  Public Resource Code section 21067 defines, “lead agency” as the public agency with the principal responsibility for approving a project.  Public Resources Code section 21069 defines a “responsible agency” as any other public agency that shares responsibility for approving a project.  In some cases, two or more public entities may qualify as a lead agency.  In that case, the entity that acts first is the lead agency.  (CEQA Guidelines, § 15051, subd. (c).) The court found that the Coastal Commission, not the City, had the burden of complying with the CEQA in connection with the LCP amendment, as set forth in CEQA Guidelines section 15265: “(a) CEQA does not apply to activities and approvals pursuant to the California Coastal Act . . . by: [¶] (1) Any local government . . . necessary for the preparation and adoption of a local coastal program . . . . [¶] (c) This section shifts the burden of CEQA compliance from the local agency . . . to the California Coastal Commission.”  The court went on to reiterate, however, that “the commission is exempted from preparing an environmental impact report because of the secretary’s approval of its certified regulatory program.  Thus, the commission must only comply with the environmental documentation requirements in Public Resources Code section 21080.5 . . . ,  Hence, no environmental impact report had to be prepared in this case.  Nor are the requirements imposed on a lead agency for preparation of an environmental impact report applicable to the commission’s environmental decisionmaking.”  Because the City and the Coastal Commission had adequately responded to comments during the LCP amendment process and considered reasonable alternatives as well as potential cumulative impacts, the Commission’s process complied with CEQA.

 

Authored by:

Andrea A. Matarazzo

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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