IRVINE, CA—Projects in coastal zones are more complicated because there will likely be a coastal land-use plan and the coastal commission can influence whether they go forward, Miller Starr Regalia's shareholder and co-chair of its land-use practice group Arthur Coon tells GlobeSt.com. In the court case Banning Ranch Conservancy v. City of Newport Beach, the Fourth District Court of Appeal recently upheld the City of Newport Beach's approval of a mixed-use development within the coastal zone on the 400-acre Banning Ranch property, a case that demonstrates just how influential coastal commissions and other organizations can be when it comes to development. We spoke exclusively with Coon about this case (regarding which Coon wrote a blogpost) what it means for coastal developers and what they should take away from the judgment.

GlobeSt.com: What are the key takeaways our readers should note from Banning Ranch Conservancy v. City of Newport Beach?

Coon: A city or county has great discretion in interpreting vague or ambiguous provisions of its general plan, so long as its actions and interpretations are not arbitrary or capricious. The discretion extends to determining whether development approvals the city or county grants are consistent with the provisions of its general plan, which is a finding the local entity must make in approving all subdivisions and other land-use entitlements. Projects in the coastal zone are more complicated because there will likely be a local coastal land-use plan, and the coastal commission will have either direct permitting jurisdiction or an ability to review local decisions on appeal, depending on the legal status of the local plan.

GlobeSt.com: What does the case teach developers about dealing with environmental issues and organizations in Orange County?

Coon: The coastal commission has jurisdiction over approving developments in areas within the coastal zone if the city or county doesn't have a fully certified (by the commission) local coastal program including a land-use plan and implementing measures covering the land to be developed. (In cases where the commission has signed off on a fully certified local permitting procedure that covers the development, it retains only appellate jurisdiction limited to ensuring the local entity has acted consistently with its certified program.) In cases like that of Banning Ranch, a coastal development permit obtained directly from the coastal commission is necessary to approve the development in the coastal zone, in addition to any required city or other state or federal development approvals. The coastal commission can thus essentially exercise a “veto” over the local approval by refusing to issue a CDP. Since the city is the “lead agency” for CEQA purposes, however, it prepares the project EIR, which must be considered by all permitting agencies, subject to the other agencies'—including the coastal commission's—and the public's rights to weigh in and comment on the EIR's adequacy. Since Orange County has a lot of coastline, the coastal commission is obviously a huge player in development there, and it can be a forceful critic of local environmental reviews in the CEQA process, as was shown in this case.

GlobeSt.com: Are cases like these common, either in Orange County or in other parts of California?

Coon: Conflicts between the coastal commission and local jurisdictions on how best to do environmental review and approve developments within the coastal zone are not uncommon throughout the state. In my view, as a general proposition, the commission tends to be anti-development and local jurisdictions less so, for various legal and political reasons, although much obviously depends on local politics.

GlobeSt.com: What else should our readers know about this case and its implications for developers?

Coon: The case provides a roadmap for local entities and developers preparing coastal-zone project EIRs on how to treat the topic of environmental sensitive habitat areas in situations where the coastal commission retains CDP jurisdiction. Simply put, in such situations (and unless the local entity's general plan or local coastal plan clearly provides otherwise), the ESHA designation is not a matter of biological resources “fact” or “data” that an EIR must include under CEQA in order to fully inform the public and agency decision-makers regarding the project's environmental effects; rather, it is a legal label or finding required under the coastal act that the coastal commission, not the local entity, is obliged to decide whether or not to place on specific land.

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Carrie Rossenfeld

Carrie Rossenfeld is a reporter for the San Diego and Orange County markets on GlobeSt.com and a contributor to Real Estate Forum. She was a trade-magazine and newsletter editor in New York City before moving to Southern California to become a freelance writer and editor for magazines, books and websites. Rossenfeld has written extensively on topics including commercial real estate, running a medical practice, intellectual-property licensing and giftware. She has edited books about profiting from real estate and has ghostwritten a book about starting a home-based business.