AB 2616 allows the commission and local agencies issuing coastal development permits to consider “environmental justice, or the equitable distribution of environmental benefits throughout the state.” The bill defines environment justice as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.” It requires one of the governor's Coastal Commission appointments to be someone who lives in or works with communities in the state that are disproportionately burdened by, and vulnerable to, high levels of pollution and issues of environmental justice, including, but not limited to, communities with diverse racial and ethnic populations and communities with low-income populations. That appointment must be made in 2017.

GlobeSt.com: How do you think these changes will impact policy moving forward?

Lamport: Environmental justice concepts have already found their way into the commission's decision-making process. AB2616 does not amend Chapter 3 of the Coastal Act, which states the policies that govern approvals of coastal development permits and local coastal programs. As a result, I don't expect that the bill will appreciably change the commission's decision-making process; although it will formalize what has been occurring informally with respect to the application of the access and recreation policies in Chapter 3.

GlobeSt.com: A bill to ban private meetings between lobbyists and members of the Coastal Commission was recently defeated in the State Assembly. What is the status of ex parte communications with members of the board?

There were two bills affecting ex parte communication. SB 1190, which would have banned any ex parte communications, was overwhelming defeated in the Assembly. AB 2002 would have banned ex parte communications within 24 hours of a commission meeting and would have required persons who are paid to communicate with the commission and their clients to register as lobbyists and lobbyist employers. That bill failed to obtain the two-thirds vote in the Senate required for passage. It is anticipated that both bills will be reintroduced in the next session. So the issue may be revisited in the next legislative session.

GlobeSt.com: What other ex parte issues are looming on the horizon?

Lamport: The issue has shifted to the courts for now. Interests who oppose ex parte communications have brought a lawsuit against commissioners who engage in ex parte communications claiming that they failed to adequately disclose the communications. The lawsuit seeks substantial civil penalties against those commissioners.

Recently, a court overturned a Coastal Commission approval on the grounds that commissioners who voted to approve the project had ex parte communications that were not disclosed in the record before the court. The deputy attorney general who is the litigation liaison to the commission discussed that case at the recent conference and mentioned that the commissioners had in fact disclosed their ex parte communications, but that the forms had not been included in the record as a result of a staff error.

For various reasons, four of the 11 commissioners who had historically accepted ex parte communications discontinued the practice. Some announced that they did so while the legislation was pending. The pending litigation seeking penalties may be deterring some commissioners from engaging in ex parte communications. At the same time, the commission has worked to make it easier for interested parties to schedule ex parte communications with the commissioners who still accept ex parte communications. Ex parte communications with commissioners can now be requested through the Coastal Commission's website.

GlobeSt.com: You say that ex parte communications play an important role in the process. Why?

Lamport: Unless there is a fundamental change in the Coastal Commission hearing process, ex parte communications will continue to be necessary to deal effectively with the commission, particularly when dealing with a negative staff recommendation or a complicated project. It is typical for Coastal Commission staff reports to exceed 100 pages. For many projects, the staff reports and exhibits can be well over 500 pages in length. Applicants and the public do not see the staff report until it is released, which typically occurs 10 days before the hearing. As a result, interested parties usually have very little time to respond. Commissioners typically do not see a response, which also can be lengthy, until within a week of the hearing. The commission typically has three full days of hearings each month with an agenda full of items with lengthy staff reports and responses. It is very difficult for any human being to be able process the volume of information that commissioners must process in the limited time leading up to the commission's hearings. An applicant may have only 15 minutes to present, and in some instances as little as two or three minutes, depending on the issue the commission is considering. In many cases, that is not enough time to meaningfully address all of the issues that commissioners are asked to decide. Ex parte communications have become the vehicle to help commissioners process the information in ways that the hearing process does not afford an applicant or an interested party.

Globest.com: One of the topics of the conference was sea level rise and climate change in the coastal zone. Can you tell me a little bit about that?

Lamport: The Coastal Commission has adopted a sea level rise guidance document, which was discussed at the conference. The document identifies threats to the coast from sea level rise including impacts on public infrastructure and public access to the coast. On this latter point, the commission's thesis is that as sea level rises and beaches become inundated, public access to the coast may be diminished if development prevents the establishment of new beaches. The guidance describes the potential loss of public beaches as an issue of environmental justice.

To address this, the guidance adopts an approach that would prevent the use of shoreline protection devices (such as sea walls) to address sea level rise. New development must be designed to be set back to avoid the need for devices to protect the property from erosion due to sea level rise. Existing structures can be protected for their remaining useful life, but must be relocated at the point the structure will need to be rebuilt. There are some significant unanswered questions, particularly when it comes to protection of private property. The boundary between private property and state land is the mean high tide line on the coast. If the land is not protected, private property converts to public land as the mean high tide moves inland. The law has not yet evolved to address whether the state can prevent a private property owner from taking measures to stop that conversion from occurring in connection with sea level rise.

What was clear at the conference is that the Coastal Commission has given considerable thought and has dedicated considerable resources to this issue. Property owners along the coast will need be to be prepared to deal with the issues in the commission's guidance.

GlobeSt.com: What are some other top issues discussed at the conference that are having a significant impact on coastal development today?

Lamport: There was a lively debate between the Coastal Commission's legal staff and the director of litigation for the Pacific Legal Foundation regarding takings law (essentially eminent domain) and the Coastal Act. The commission's acting executive director and the deputy director for the South Central Coast gave a very interesting presentation about how staff approaches its role. Three current commissioners and two former commissioners provided useful insight in the commission's decision-making process.

The issue that probably will most significantly affect coastal development today concerns low-cost lodging and short-term rentals, such as Airbnb. There was a presentation regarding the number of inexpensive hotels and motels that have been upgraded and converted to more expensive establishments. There was discussion about how these upgrades likely meet the broad definition of “development” in the Coastal Act and will need to receive closer scrutiny by the Coastal Commission. There was also discussion about how short term rentals are now being considered within the Coastal Commission's purview. The Coastal Commission staff has announced that ordinances that restrict short-term rentals in the coastal zone must be approved by the commission as part of a local coastal program before they can be enforced in connection with coastal permitting. The commission is reviewing short-term rental regulations on a case-by-case basis and has not adopted a single approach. However, in the coming year expect to see situations where the Coastal Commission pushes back on local efforts to curtail short-term rentals.

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