Beach and Bluff Conservancy v. City of Solana Beach

• Court: California Court of Appeal
• Decided: October 17, 2018
• Docket: D072304
• Status: Published

Opinion

Filed 10/17/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BEACH AND BLUFF CONSERVANCY, D072304

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2013-00046561-CU-WM-NC) CITY OF SOLANA BEACH,

Defendant and Appellant;

CALIFORNIA COASTAL COMMISSION et al.

Interveners and Appellants.

APPEAL from a judgment of the Superior Court of San Diego County, Timothy

Casserly, Judge. Affirmed in part, reversed in part with directions.

Jon Corn Law Firm, Jonathan Corn; Pacific Legal Foundation, Meriem L.

Hubbard, and Lawrence G. Salzman for Plaintiff and Appellant.

NOSSAMAN, Steven H. Kaufmann, Elizabeth Klebaner; McDougal Love

Boehmer Foley Lyon & Canlas, and Johanna N. Canlas for Defendant and Appellant. Xavier Becerra, Attorney General, John A. Saurenman and Daniel A. Olivas,

Assistant Attorneys General, and Jamee Jordan Patterson, Deputy Attorney General, for

Intervener and Appellant California Coastal Commission.

ENVIRONMENTAL LAW CLINIC; Mills Legal Clinic at Stanford Law School

and Molly Melius for Intervener and Appellant Surfrider Foundation.

INTRODUCTION

The California Coastal Act of 1976 (Pub. Resources Code, 1 § 30000 et seq.) (the

Coastal Act) requires local governments like defendant City of Solana Beach (the City) to

develop a local coastal program (LCP). The LCP, consisting of a land use plan (LUP)

and implementing ordinances, is designed to further the objectives of the Coastal Act.

(§ 30001.5, subd. (c); Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles

(2012) 55 Cal.4th 783, 794.) The Coastal Act provides that a local government must

submit its LUP to the California Coastal Commission (the Commission) for certification

that the LUP is consistent with the policies and requirements of the Coastal Act.

(§§ 30512; 30512.2.) After the Commission certifies a local government's LUP, it

delegates authority over coastal development permits to the local government. (Pacific

Palisades, at p. 794, citing §§ 30519, subd. (a), 30600.5, subds. (a), (b), (c).)

In the present case, the City submitted an amended LUP (ALUP) to the

Commission. The Commission approved the ALUP with suggested modifications and

the City accepted those modifications. In April 2013, Beach and Bluff Conservancy

1 All subsequent statutory references are to the Public Resources Code unless otherwise specified.

2 (BBC) brought the present action for declaratory relief and traditional mandate under

Code of Civil Procedure section 1085, challenging seven specific policies of the City's

ALUP as facially inconsistent with the Coastal Act and/or facially unconstitutional. 2 In

September 2016, BBC filed a motion for judgment on its petition for writ of mandate.

The court granted BBC's motion and petition for writ of mandate as to two of the

challenged policies and denied the motion and writ petition as to the other five challenged

policies, and entered judgment accordingly.

BBC's appeal and the cross-appeals by the City, the Commission, and Surfrider

Foundation (Surfrider) concern five of the seven policies at issue in the trial court. BBC

contends the court erred in rejecting its claims that one of those policies is facially

inconsistent with the Coastal Act, another is facially unconstitutional under the

"unconstitutional conditions doctrine," and a third is both inconsistent with the Coastal

Act and unconstitutional. In their cross-appeals, the City, the Commission, and Surfrider

contend the court erred in granting BBC's motion for judgment and petition for writ of

mandate as to two of the policies. The City and the Commission also raise a number of

procedural challenges to the judgment.

As we shall explain, we conclude that BBC's exclusive remedy to challenge

policies in the ALUP on the ground they are inconsistent with the Coastal Act was to file

a petition for writ of administrative mandate under Code of Civil Procedure section

2 BBC filed its original complaint in April 2013. The Commission intervened in the action in March 2014 before BBC filed its second amended complaint, and Surfrider Foundation (Surfrider) intervened in the action in January 2016.

3 1094.5 rather than an action for declaratory relief and traditional mandamus. And

assuming, without deciding, that administrative mandamus is not the exclusive remedy

for BBC's facial challenges to two policies on constitutional grounds, we conclude those

challenges fail on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2011, the City submitted a draft LUP to the Commission. The

Commission rejected the City's draft LUP in March 2012 and instead approved a

different LUP that the Commission had substantially modified. In May 2012, BBC and

property owner Joseph Steinberg challenged the Commission's decision by filing separate

petitions for writ of administrative mandate under Code of Civil Procedure section

1094.5. In November 2013, the trial court sustained the Commission's demurrers to the

petitions without leave to amend on the ground the actions were barred by the petitioners'

failure to name the City as a necessary and indispensable party. BBC and Steinberg

appealed the dismissal of those actions, but BBC voluntarily dismissed its appeal and this

court dismissed Steinberg's appeal for failure to file an opening brief.

In September 2012, while the writ petitions against the Commission were pending,

the Commission notified the City that because the Commission had certified its LUP with

suggested modifications, before the LUP could become "effectively certified," the

Commission would have to determine the City had taken "formal action . . . to satisfy [the

suggested modifications], such as incorporating the modifications." In February 2013,

the city council accepted the Commission's suggested modifications to the City's LUP

and, in May 2013, adopted additional amendments to the LUP. In January 2014, the

4 Commission approved the City's amendments with additional proposed modifications. In

June 2014, the City accepted those proposed modifications and incorporated them into

the ALUP that BBC challenges in this action.

BBC filed the present action against the City in April 2013 but did not name the

Commission in its complaint. In March 2014, BBC and the City stipulated to allow the

Commission to intervene in the case on the side of the City, and the court entered an

order allowing the Commission's intervention. The Commission filed a complaint-in-

intervention, which essentially constituted its answer to BBC's first amended complaint.

In October 2014, BBC filed its second amended complaint for declaratory relief and

petition for writ of mandate under Code of Civil Procedure section 1085. In January

2016, the parties stipulated to, and the court ordered, Surfrider's intervention in the

action. Surfrider filed a complaint in intervention that defended certain policies BBC

challenged in its second amended complaint.

BBC's operative second amended complaint challenges the ALUP policies

numbered 2.60, 2.60.5, 4.19, 4.22, and 4.53, in addition to two other policies not at issue

in this appeal. BBC contends these policies are either facially unconstitutional or facially

inconsistent with the Coastal Act, or both, as noted below.

Policy 2.60 restricts the right of blufftop property owners to repair existing private

beach stairways and prohibits construction of new stairways. It allows existing stairways

to be maintained in good condition but not expanded, limits the extent of permissible

routine repair and maintenance of stairways, and requires private stairways to be phased

5 out at the end of their economic life. BBC challenges policy 2.60 on the ground it

violates section 30610 of the Coastal Act. 3

Policy 2.60.5 requires conversion of a private beach stairway to a public

accessway "where feasible and where public access can reasonably be provided" when

the property owner applies for a coastal development permit (CDP) to replace the

stairway or more than 50 percent of the stairway. However, the conversion is required

only if any portion of the stairway uses public land or private land subject to a public

access easement or deed restriction. 4 BBC challenges policy 2.60.5 on the grounds it

violates section 30610 and is unconstitutional.

3 Policy 2.60 states: "No new private beach stairways shall be constructed, and private beach stairways shall be phased out at the end of the economic life of the stairways. Existing permitted or private beach stairways constructed prior to the Coastal Act may be maintained in good condition with a CDP where required, but shall not be expanded in size or function. Routine repair and maintenance shall not include the replacement of the stairway or any significant portion of greater than 50% of the stairway cumulatively over time from the date of the LUP certification." In relevant part, section 30610 provides that "no coastal development permit shall be required" for "[i]mprovements to any structure," for "[r]epair or maintenance activities that do not result in an addition to, or enlargement or expansion of, the object of those repair or maintenance activities," and for "[t]he replacement of any structure . . . destroyed by a disaster."

4 Policy 2.60.5 states: "Upon application for a coastal development permit for the replacement of a private beach stairway or replacement of greater than 50% thereof, private beach accessways shall be converted to public accessways where feasible and where public access can reasonably be provided. The condition to convert the private stairway to a public stairway shall only be applied where all or a portion of the stairway utilizes public land, private land subject to a public access deed restriction or private land subject to a public access easement."

6 Policy 4.19 provides that new shoreline or bluff protective devices that alter

natural landforms (e.g., seawalls) "shall not be permitted to protect new development."

As a condition for a permit for new blufftop development or redevelopment, the policy

requires a property owner to record a deed restriction waiving any future right under

section 30235 to construct new bluff retention devices. 5 BBC contends the permit

condition imposed by policy 4.19 is unconstitutional.

Policy 4.22 provides: "No bluff retention device shall be allowed for the sole

purpose of protecting an accessory structure." BBC challenges policy 4.22 on the ground

it violates section 30235, which, in BBC's words, "countenances no distinctions among

the kinds of structures that may be protected from erosion."

Policy 4.53 provides that a permit for a bluff retention device will expire when an

existing blufftop structure requiring protection is redeveloped, is no longer present, or no

longer requires protection. The policy requires property owners to apply for a CDP to

remove, modify, or retain a protective device before expiration of the permit and provides

5 Policy 4.19 states: "New shoreline or bluff protective devices that alter natural landforms along the bluffs or shoreline processes shall not be permitted to protect new development. A condition of the permit for all new development and blufftop redevelopment on bluff property shall require the property owner [to] record a deed restriction against the property that expressly waives any future right that may exist pursuant to Section 30235 of the Coastal Act to new or additional bluff retention devices." Section 30235 provides: "Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. Existing marine structures causing water stagnation contributing to pollution problems and fishkills should be phased out or upgraded where feasible."

7 that the CDP will include a condition requiring reassessment of the impacts of the device

in 20-year mitigation periods. BBC claims policy 4.53 violates section 30235 by placing

unauthorized limitations on the right to protect blufftop structures with bluff retention

devices. 6

The trial court granted BBC's motion for judgment in part and denied the motion

in part. The court ruled in BBC's favor as to policies 2.60 and 4.22, finding those policies

were inconsistent with the Coastal Act. 7 The court denied BBC's motion as to policies

6 Policy 4.53 states: "All permits for bluff retention devices shall expire when the currently existing blufftop structure requiring protection is redeveloped (per definition of Bluff Top Redevelopment in the LUP), is no longer present, or no longer requires a protective device, whichever occurs first[,] and a new CDP must be obtained. Prior to expiration of the permit, the bluff top property owner shall apply for a coastal development permit to remove, modify or retain the protective device. In addition, expansion and/or alteration of a legally permitted existing bluff retention device shall require a new CDP and be subject to the requirements of this policy. [¶] The CDP application shall include a re-assessment of need for the device, the need for any repair or maintenance of the device, and the potential for removal based on changed conditions. The CDP application shall include an evaluation of: "• The age, condition and economic life of the existing principal structure; "• Changed geologic site conditions including[,] but not limited to, changes relative to sea level rise, implementation of a long-term, large scale sand replenishment or shoreline restoration program; and "• Any impact to coastal resources, including but not limited to public access and recreation. "The CDP shall include a condition requiring reassessment of the impacts of the device in 20 year mitigation periods pursuant to Policies 4.49 and 4.53. "No permit shall be issued for retention of a bluff retention device unless the City finds that the bluff retention device is still required to protect an existing principal structure in danger from erosion, that it will minimize further alteration of the natural landform of the bluff, and that adequate mitigation for coastal resource impacts, including but not limited to impacts to the public beach, has been provided."

7 In its order on BBC's motion for judgment, the court referred to policies 2.60 and 4.22 as being "unconstitutional" because they were inconsistent with the Coastal Act. 8 2.60.5, 4.19, and 4.53. The court entered judgment in accordance with its order and

issued a peremptory writ of mandate commanding the Commission to "[v]acate and set

aside [its] actions to approve and certify LUP Policy 4.22 and LUP Policy 2.60, insofar as

it includes a condition regarding repair and maintenance of private stairways." 8

DISCUSSION

I. Section 30801 Provides BBC's Exclusive Remedy to Challenge a Commission-certified Policy on the Ground It Is Inconsistent with the Coastal Act

BBC's operative second amended complaint challenged the City's ALUP by

seeking declaratory relief and a writ of traditional mandate under Code of Civil

Procedure section 1085. As noted, of the five policies at issue in this appeal, BBC

challenged three solely on the ground of inconsistency with the Coastal Act (2.60, 4.22,

and 4.53), challenged one solely on the ground it violates the unconstitutional conditions

doctrine (4.19), and challenged one on both of those grounds (2.60.5). The City contends

that under section 30801, BBC's exclusive remedy for its challenges lies in administrative

Presumably, the court's use of the word "unconstitutional" was inadvertent because BBC did not challenge policy 2.60 or policy 4.22 on constitutional grounds, and the court's finding that the policies were inconsistent with the Coastal Act is not a valid basis for also finding them unconstitutional.

8 The judgment states: "A preemptory [sic] writ shall issue from the Court remanding the proceedings to the City and Commission and commanding (a) the Commission to set aside its certification of LUP Policies 4.22 and 2.60, insofar as it includes a condition regarding repair and maintenance of private stairways, and (b) the City to set aside its acceptance of the Commission's suggested modifications relating to LUP policies 4.22 and 2.60, insofar as it includes a condition regarding repair and maintenance of private stairways." However, the writ of mandate the court ultimately issued is directed at the Commission only; it does not command the City to do anything.

9 mandamus under Code of Civil Procedure section 1094.5 rather than traditional

mandamus and declaratory relief.

Section 30801 provides, in relevant part: "Any aggrieved person shall have a right

to judicial review of any decision or action of the [C]ommission by filing a petition for a

writ of mandate in accordance with Section 1094.5 of the Code of Civil Procedure, within

60 days after the decision or action has become final." As we shall explain, because the

Coastal Act requires the Commission to certify a local government's LUP as consistent

with the policies and requirements of the Coastal Act (§§ 30512; 30512.2), and in doing

so the Commission acts in a quasi-judicial capacity, we conclude BBC's sole remedy to

challenge the City's ALUP was to file a petition for writ of administrative mandate under

Code of Civil Procedure section 1094.5, as provided in section 30801.

We begin with a general overview of the LUP certification process and the

difference between traditional mandamus under Code of Civil Procedure section 1085

and administrative mandamus under Code of Civil Procedure section 1094.5.

A. LUP Certification Process

A local government subject to the Coastal Act must submit its LUP to the

Commission for certification that the LUP is consistent with the policies and

requirements of the Coastal Act. (§§ 30512, 30512.2.) Within 60 days after submission,

the Commission determines, after public hearing, whether the proposed LUP raises any

substantial issues as to whether it is consistent with the Coastal Act. (§ 30512, subd.

(a)(1).) If the Commission determines the LUP raises no such issue, it deems the LUP

certified as submitted. (Ibid.) If the Commission determines the LUP raises one or more

10 substantial issues regarding consistency with the Coastal Act, the Commission must

identify those issues and, after public hearing, decide whether to certify the LUP, in

whole or in part. (§ 30512, subd. (a)(2) & (3).) If the Commission decides not to certify

an LUP in whole or in part, it must provide a written explanation and may suggest

modifications. (§ 30512, subd. (b).) The local government may adopt those

modifications, which "shall cause the [LUP] to be deemed certified upon confirmation of

the [Commission's] executive director." (Ibid.) Alternatively, the local government may

resubmit its own revised LUP to the Commission for certification. (Ibid.) After the

Commission certifies a local government's LUP, it delegates authority over coastal

development permits to the local government. (§§ 30519, subd. (a), 30600.5, subds. (a),

(b), & (c).)

The Commission's review of an LUP is "limited to its administrative determination

that the [LUP] submitted by the local government does, or does not, conform with the

requirements of [the Coastal Act]." (§ 30512.2.) The Commission must certify an LUP

if it finds, by a majority vote of its appointed members, that the LUP "meets the

requirements of, and is in conformity with, the policies of [the Coastal Act]." (§ 30512,

subd. (c).)

B. Traditional Mandamus Versus Administrative Mandamus

"The appropriate type of mandate is determined by the nature of the administrative

action or decision under review. In general, 'quasi-judicial' or 'adjudicative acts,' that is,

acts that involve the actual application of a rule to a specific set of existing facts are

reviewed by administrative mandamus under Code of Civil Procedure section 1094.5.

11 [Citation.] [¶] More specifically, a petition for administrative mandamus under Code of

Civil Procedure section 1094.5 is appropriate when the party seeks review of a final

'determination, finding, or decision of a public agency, made as a result of a proceeding

in which by law a hearing is required to be given, evidence is required to be taken and

discretion in the determination of facts is vested in a public agency . . . .' " (California

Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464,

1482 (California Water).)

In contrast, a public entity's enactment of a rule "constitutes a [legislative or]

'quasi-legislative' act and is reviewed by ordinary [or traditional] mandate [under Code of

Civil Procedure section 1085]. [Citations.] A petition for traditional mandamus is

appropriate in . . . actions brought to attack, review, set aside, or void a quasi-legislative

. . . or ministerial determination, or decision of a public agency. [Citations.] The trial

court reviews an administrative action pursuant to Code of Civil Procedure section 1085

to determine whether the agency's action was arbitrary, capricious, or entirely lacking in

evidentiary support, contrary to established public policy, unlawful, procedurally unfair,

or whether the agency failed to follow the procedure and give the notices the law

requires." (California Water, supra, 161 Cal.App.4th at 1483, fn. omitted.)

"The determination of whether Code of Civil Procedure section 1094.5 or 1085

applies does not depend on whether the agency is required by statute to hold an

evidentiary hearing in the matter, but instead turns on the nature of the challenged

action." (California Water, supra, 161 Cal.App.4th at p. 1483, fn. 19; Southern

California Cement Masons Joint Apprenticeship Committee v. California Apprenticeship

12 Council (2013) 213 Cal.App.4th 1531, 1541 ["[T]raditional mandamus under section

1085 applies to '[q]uasi-legislative' decisions, defined as those involving ' "the

formulation of a rule to be applied to all future cases," ' while administrative mandamus

under section 1094.5 applies to 'quasi-judicial' decisions, which involve ' "the actual

application of such a rule to a specific set of existing facts." ' "].) Traditional mandamus

under Code of Civil Procedure section 1085 "may be employed to compel the

performance of a duty which is purely ministerial in character; it cannot be applied to

control discretion as to a matter lawfully entrusted to the Commission." (State v.

Superior Court (1974) 12 Cal.3d 237, 247 [referring to former California Coastal Zone

Conservation Commission].)

In addition to traditional mandamus, an action for declaratory relief is generally an

appropriate means of facially challenging a legislative or quasi-legislative enactment of a

public entity (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2006)

136 Cal.App.4th 119, 128); however, the appropriate remedy for a challenge to the

application of an enactment to specific property—i.e., an "as-applied challenge"—is

through administrative mandamus. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 13-

14 (Hensler); Agins v. Tiburon (1979) 24 Cal.3d 266, 272-273, overruled on other

grounds in First English Evangelical Lutheran Church v. County of Los Angeles (1987)

482 U.S. 304.) As explained in Walter H. Leimert Co. v. California Coastal Com. (1983)

149 Cal.App.3d 222, "[t]he law is well established that an action for declaratory relief is

not appropriate to review an administrative decision." (Id. at p. 230.) Thus, a cause of

action challenging the validity of an action by the Commission in applying the Coastal

13 Act to a particular property owner " 'is properly brought under the provisions of section

1094.5 of the Code of Civil Procedure rather than by means of declaratory relief.'

[Citation.] A declaratory relief action is an appropriate remedy only if the party is

seeking a declaration that a statute controlling development of coastal lands is actually

unconstitutional." (Id. at p. 231, italics added.) 9

C. Analysis

When the Commission reviews and decides whether to certify a local

government's LUP, it acts in a quasi-judicial capacity. (San Mateo County Coastal

Landowners' Assn. v. County of San Mateo (1995) 38 Cal.App.4th 523, 540-541 (San

Mateo); City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 ["[W]hen

the Commission reviews an LCP for conformity to statewide standards it performs a

predominantly judicial rather than legislative function."].) Accordingly, any

postapproval facial challenge to a local land use policy is essentially a challenge to the

Commission's quasi-judicial certification decision. As such, the challenge must be made

by petition for writ of administrative mandate under Code of Civil Procedure section

1094.5, as expressly provided in section 30801.

In San Mateo, the appellants filed a complaint for declaratory relief and petition

for writ of ordinary mandamus against San Mateo County and the Commission, claiming

9 Although the vast majority of facial challenges to governmental enactments are on constitutional grounds, a facial challenge may be premised on the ground the enactment is inconsistent with statutory law. (See T.H. v. San Diego Unified School Dist. (2004) 122 Cal.App.4th 1267, 1273, 1280-1285 [addressing facial challenge to administrative (school district) regulations on the ground they violated state law]; Harrahill v. City of Monrovia (2002) 104 Cal.App.4th 761, 769 [same].)

14 a portion of an initiative measure amending the County's LCP conflicted with the Coastal

Act policies encouraging the development of affordable housing and visitor serving

recreational facilities. (San Mateo, supra, 38 Cal.App.4th at pp. 533, 557.) The San

Mateo court concluded this claim was "clearly a 'backdoor' challenge through traditional

mandate and declaratory relief to the Commission's certification of [the initiative

measure] as consistent with the Coastal Act. . . . [T]he proper method for such challenge

is through bringing of a petition for a writ of administrative mandamus pursuant to Code

of Civil Procedure section 1094.5. [Citations.] It is established the Commission acts in a

quasi-judicial role when it reviews a LCP or LCP amendment for consistency with the

Coastal Act. [Citation.] Consequently, challenge to the Commission's actions in LCP

certification decisions is via Code of Civil Procedure, section 1094.5. (San Mateo, at p.

558, italics added, fn. omitted.)

Earlier in its opinion, the San Mateo court agreed "with the Commission that

insofar as appellants claim [the initiative's] adoption or its provisions conflict with the

Coastal Act, such challenge should have been brought in an action for a writ of

administrative mandamus pursuant to Code of Civil Procedure section 1094.5. [¶] The

Commission is the sole agency with statutory authority to review LCP submittals for

consistency with the Coastal Act. (§ 30500 et seq.) In so doing, the Commission acts in

a quasi-judicial capacity. [Citations.] Consequently, challenge to the Commission's

actions in LCP certification decisions is through administrative mandate." (San Mateo,

15 supra, 38 Cal.App.4th at p. 539, fn. 9.) 10 We agree with this analysis. Because the

Commission acted in a quasi-judicial role in reviewing and certifying the City's ALUP,

the sole remedy for BBC's claims that certain policies in the ALUP conflict with the

Coastal Act was administrative mandamus under Code of Civil Procedure section 1094.5,

as provided in section 30801.

BBC contends the California Supreme Court's decision in Yost v. Thomas (1984)

36 Cal.3d 561, 572 is inconsistent with San Mateo and supports BBC's argument that

declaratory relief and traditional mandamus are proper means to challenge the City's

ALUP because the City acted in a legislative role in enacting the ALUP. BBC's reliance

on Yost is unavailing. In Yost the California Supreme Court addressed the issue of

whether the Coastal Act "precludes a referendum on any local land use measure affecting

the coastal zone which is adopted by a city council after the . . . Coastal Commission . . .

has approved the city's land use plan." (Yost, at p. 564.) The Yost court held the Coastal

Act did not preclude the referendum because the city (Santa Barbara) was acting

legislatively in adopting its LUP. (Id. at pp. 569-571.) The Yost court concluded "the

Coastal Act does not transform the exercise of legislative power into administrative

action by virtue of a Commission certification of a land use plan. The Legislature left

wide discretion to local governments to formulate land use plans for the coastal zone and

10 Because the San Mateo appellants' claim that the initiative was inconsistent with the Coastal Act was "intertwined" with some of their other challenges to the initiative and it was "difficult to separate these issues," the San Mateo court exercised its discretion to "review [the inconsistency] claim despite appellants' failure to advance it by way of an appropriate writ petition." (San Mateo, supra, 38 Cal.App.4th at p. 539, fn. 9.)

16 it also left wide discretion to local governments to determine how to implement certified

LCPs. Under such circumstances, the City Council of Santa Barbara was acting

legislatively when it adopted the two resolutions and the ordinance which are the subject

of this appeal. Its action is thus subject to the normal referendum procedure." (Id. at p.

574, italics added.)

We agree that the italicized statement from Yost supports the proposition that the

City was acting legislatively in adopting its ALUP. However, the fact the City was

acting legislatively when it enacted the policies at issue here is undisputed and does not

defeat the City's argument that an administrative mandamus proceeding against the

Commission (with the City named as a necessary party) was BBC's exclusive remedy to

challenge policies on the ground of inconsistency with the Coastal Act. Unlike in Yost,

where voters challenged by referendum certain coastal land use measures that a city

adopted after the Commission had approved its LUP, in the present case BBC judicially

challenged policies in the City's ALUP as inconsistent with the Coastal Act. Because

those challenges are fundamentally challenges to the Commission's quasi-judicial

decision to certify the City's ALUP, BBC was required to proceed by administrative

mandamus under Code of Civil Procedure section 1094.5, as expressly provided in

section 30801. 11

11 The trial court in the present case cited DeVita v. County of Napa (1995) 9 Cal.4th 763 in ruling that "declaratory relief and traditional mandamus are available to challenge the LUP." The plaintiffs in DeVita filed a complaint for declaratory relief and petition for writ of mandate challenging a voter initiative measure that amended the land use element of Napa County's general plan. (Id. at p. 771.) The DeVita court held that "general plans can be amended by initiative." (Id. at p. 775.) DeVita does not support 17 Our conclusion that challenges to the Commission's LUP certification decisions

must be through administrative mandamus, as provided in section 30801, is also

consistent with the principle that "[w]here a statute [or statutory scheme] creates new

rights and obligations not previously existing in the common law, the express statutory

remedy is deemed to be the exclusive remedy available for statutory violations, unless it

is inadequate." (De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza

Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 912; see Rojo v. Kliger (1990) 52

Cal.3d 65, 79; Brewer v. Premier Golf Properties (2008) 168 Cal.App.4th 1243, 1253-

1254 [remedies provided in the Labor Code statutory scheme governing meal and rest

breaks were exclusive because the scheme created new rights and obligations not

previously existing in common law].) The Coastal Act created new rights and obligations

regarding the development and management of coastal property not previously existing in

common law. Consequently, the statutory remedy provided by section 30801 to persons

claiming to be aggrieved by actions and decisions of the Commission in implementing

the Coastal Act is the exclusive remedy for such claimants, notwithstanding other

common law remedies that might otherwise be available.

In sum, because the Commission was statutorily required to certify the City's

ALUP and acted in a adjudicatory role in doing so, BBC's challenges to the certified

ALUP are essentially challenges to the Commission's certification decision that were

required to have been raised by petition for a writ of administrative mandate under Code

the proposition that an action for declaratory relief and traditional mandamus is a proper means to judicially challenge a Commission-approved LUP under the Coastal Act. 18 of Civil Procedure section 1094.5 within 60 days after the Commission's certification

decision became final. (§ 30801; Patrick Media Group, Inc. v. California Coastal Com.

(1992) 9 Cal.App.4th 592, 607-608.) "Failure to obtain judicial review of a discretionary

administrative action by a petition for a writ of administrative mandate renders the

administrative action immune from collateral attack, either by inverse condemnation

action or by any other action." (Patrick Media, at p. 608, italics added.) Accordingly,

BBC's challenges to policies 2.60, 2.60.5, 4.22, and 4.53 on the ground they are

inconsistent with the Coastal Act are barred by BBC's failure to file a timely writ petition

against the Commission under Code of Civil Procedure section 1094.5.

II. BBC's Constitutional Challenges

A. Applicability of Section 30801

As noted, section 30801 expressly provides "[a]ny aggrieved person [the] right to

judicial review of any decision or action of the commission by filing a petition for a writ

of mandate in accordance with Section 1094.5 of the Code of Civil Procedure, within 60

days after the decision or action has become final." (Italics added.) Although on its face,

section 30801 applies to any challenge to a certification decision of the Commission,

including a claim that a Commission-certified policy is facially unconstitutional, the

Commission's review of an LUP is statutorily limited to a determination of whether the

LUP is consistent with the Coastal Act. (§§ 30512, subd. (c), 30512.2.) Thus, section

30801 arguably does not apply to a constitutional challenge to a Commission-certified

LUP. However, we need not decide whether section 30801 is the exclusive remedy for

facial challenges to Commission-certified policies on constitutional grounds because

19 BBC's challenges to policies 2.60.5 and 4.19 under the unconstitutional conditions

doctrine fail on the merits.

B. General Principles Applicable to Facial Challenges on Constitutional Grounds

"Facial challenges to statutes and [local enactments] are disfavored. Because they

often rest on speculation, they may lead to interpreting [enactments] prematurely, on the

basis of a bare-bones record. [Citation.] Also, facial challenges conflict with the

fundamental principle of judicial restraint that courts should not decide questions of

constitutional law unless it is necessary to do so, nor should they formulate rules broader

than required by the facts before them." (Building Industry Assn. of Bay Area v. City of

San Ramon (2016) 4 Cal.App.5th 62, 90, citing Wash. State Grange v. Wash. State

Republican Party (2008) 552 U.S. 442, 450.)

The interpretation of a legislative enactment and the determination of its

constitutionality are questions of law we review de novo. (Rental Housing Owners Assn.

of Southern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 90.)

"[W]e start from 'the strong presumption that the [enactment] is constitutionally valid.'

[Citations.] 'We resolve all doubts in favor of the validity of the [enactment]. [Citation.]

Unless conflict with a provision of the state or federal Constitution is clear and

unmistakable, we must uphold the [enactment].' " (Building Industry Assn. of Bay Area

v. City of San Ramon, supra, 4 Cal.App.5th at p. 90.)

"In evaluating a facial challenge, a court considers 'only the text of the [challenged

enactment] itself, not its application to the particular circumstances of an individual.'

[Citation.] The California Supreme Court has not articulated a single test for determining

20 the propriety of a facial challenge. [Citation.] Under the strictest test, the [enactment]

must be upheld unless the party establishes the [enactment] ' "inevitably pose[s] a present

total and fatal conflict with applicable constitutional prohibitions." ' [Citation.] Under

the more lenient standard, a party must establish the [enactment] conflicts with

constitutional principles ' "in the generality or great majority of cases." ' [Citation.]

Under either test, the plaintiff has a heavy burden to show the [enactment] is

unconstitutional in all or most cases, and ' "cannot prevail by suggesting that in some

future hypothetical situation constitutional problems may possibly arise as to the

particular application of the [enactment]." ' " (Coffman Specialties, Inc. v. Department of

Transportation (2009) 176 Cal.App.4th 1135, 1144-1145.)

C. Facial Challenges Based on Alleged Unconstitutional Taking of Property

When the theory of the facial challenge is that a legislative enactment effects an

unconstitutional taking of property without just compensation–i.e., that the mere

enactment of the legislation works a taking, the claimant must additionally show that the

enactment effects a physical taking or deprives the claimant of all economically

beneficial or viable use of the property. (Lucas v. S. C. Coastal Council (1992) 505 U.S.

1003, 1015-1017 (Lucas); Del Oro Hills v. City of Oceanside (1995) 31 Cal.App.4th

1060, 1076 (Del Oro).) This requirement derives from federal takings/inverse

condemnation law.

The United States Supreme Court has "described at least two discrete categories of

regulatory action as compensable without case-specific inquiry into the public interest

advanced in support of the restraint. The first encompasses regulations that compel the

21 property owner to suffer a physical 'invasion' of his property. . . . [¶] The second

situation in which [the Supreme Court has] found categorical treatment appropriate is

where regulation denies all economically beneficial or productive use of land.

[Citations.] . . . [T]he Fifth Amendment is violated when land-use regulation 'does not

substantially advance legitimate state interests or denies an owner economically viable

use of his land.' " (Lucas, supra, 505 U.S. at pp. 1015-1016; see NJD, Ltd. v. City of San

Dimas (2003) 110 Cal.App.4th 1428, 1438-1439; California Building Industry Assn. v.

City of San Jose (2015) 61 Cal.4th 435, 462 (California Building) ["As a general matter,

so long as a land use regulation does not constitute a physical taking or deprive a property

owner of all viable economic use of the property, such a restriction does not violate the

takings clause insofar as it governs a property owner's future use of his or her property

. . . ."].) 12

As this court noted in Del Oro, "an ordinance is safe from a facial challenge if it

preserves, through a permit procedure or otherwise, some economically viable use of the

12 A court's determination of whether a legislative enactment effects a compensable taking without the necessity of a case-specific inquiry because it results in a physical invasion of property or deprives a property owner of all economically beneficial or productive use of the land goes to the facial constitutionality of the enactment. (Del Oro, supra, 31 Cal.App.4th at p. 1076 ["Generally, a facial challenge presents an issue of law and case-specific factual inquiry is not required."]; Hensler, supra, 8 Cal.4th at pp. 12-13 [rejecting claim that a compensable taking of plaintiff's property necessarily occurred when ordinance was enacted because plaintiff conceded the ordinance "did not deny him all economically feasible use of the property"; id. at p. 24 [referring to plaintiff's claim as a "facial challenge . . . predicated on a theory that the mere enactment of the . . . ordinance worked a taking of plaintiff's property"]; Lucas, supra, 505 U.S. at p. 1015, fn. 6 [" ' "[T]he test to be applied in considering [a] facial [takings] challenge is fairly straightforward. A statute regulating the uses that can be made of property effects a taking if it 'denies an owner economically viable use of his land.' " ' "].)

22 property. [Citation.] In such a case, administrative remedies must be pursued if available

because the challenge is actually an 'as-applied' one." (Del Oro, supra, 31 Cal.App.4th

at p. 1076, italics added.) Such an "as-applied" challenge is not ripe for adjudication until

there has been a " 'final, definitive, position regarding' " how the government will apply

the challenged enactment to the complaining party's land; only then can it be determined

whether a taking has occurred. (Hensler, supra, 8 Cal.4th at p. 10, quoting Williamson

County Reg'l Planning Comm'n v. Hamilton Bank (1985) 473 U.S. 172, 191.) Further, as

explained in Hensler, the governmental entity faced with an adjudication that proposed

application of a regulation to particular property effects a taking has a range of available

options to avoid paying compensation for the taking, including exempting the property

from the regulation, amending the regulation, or even repealing the regulation. (Id. at pp.

11-12, 13, 27 [" 'The requirement that challenges to administrative actions constituting

takings be brought initially by administrative mandamus assures that the administrative

agency will have the alternative of changing a decision for which compensation might be

required.' "].)

D. Unconstitutional Conditions Doctrine

As noted, BBC alleged in its second amended complaint and argues on appeal that

policies 2.60.5 and 4.19 are unconstitutional because they violate the unconstitutional

conditions doctrine.

"The doctrine of unconstitutional conditions limits the government's power to

require one to surrender a constitutional right in exchange for a discretionary benefit."

(San Diego County Water Authority v. Metropolitan Water District of Southern

23 California (2017) 12 Cal.App.5th 1124, 1158; California Building, supra, 61 Cal.4th at

p. 457.) In the takings context, the United States Supreme Court has held "the

government may impose such a condition only when the government demonstrates that

there is an 'essential nexus' [citation] and 'rough proportionality' [citation] between the

required dedication and the projected impact of the proposed land use." (Id. at p. 458,

citing Nollan v. Cal. Coastal Com. (1987) 483 U.S. 825 (Nollan) and Dolan v. City of

Tigard (1994) 512 U.S. 374 (Dolan).) This test for determining whether a condition is

unconstitutional is commonly referred to as the "Nollan/Dolan test" (see California

Building, supra, 61 Cal.4th at pp. 458-459), and is viewed as a type of "heightened

scrutiny." (Id. at p. 470; Building Industry Assn. of Central California v. County of

Stanislaus (2010) 190 Cal.App.4th 582, 590; see Koontz v. St. Johns River Water Mgmt.

Dist. (2013) 570 U.S. 595, 622 (dis. opn. of Kagan, J.).)

" '[A] predicate for any unconstitutional conditions claim is that the government

could not have constitutionally ordered the person asserting the claim to do what it

attempted to pressure that person into doing.' [Citation.] Or, in other words, the

condition is one that would have constituted a taking of property without just

compensation if it were imposed by the government on a property owner outside of the

permit process." (California Building, supra, 61 Cal.4th at pp. 459-460.) The

unconstitutional conditions doctrine applies only where the condition at issue constitutes

an "exaction" in the form of either the conveyance of a property interest or the payment

of money; the doctrine does not apply where the government simply restricts the use of

property without demanding an exaction. (Id. at pp. 457, 460.)

24 BBC contends policies 2.60.5 and 4.19 facially violate the unconstitutional

conditions doctrine because they do not satisfy the Nolan/Dolan "essential nexus" and

"rough proportionality" test. However, another limitation on the applicability of the

unconstitutional conditions doctrine to takings claims is that the doctrine, with its

attendant Nollan/Dolan test, generally is not applied to facial challenges. (Action

Apartment Ass'n v. City of Santa Monica (2008) 166 Cal.App.4th 456, 470 (Action

Apartment) ["Nollan/Dolan test developed for use in land exaction takings litigation

applies only in the case of individual adjudicative permit approval decisions; not to

generally applicable legislative general zoning decisions."].)

The Action Apartment court affirmed the dismissal of a complaint that facially

challenged a Santa Monica ordinance requiring developers of multi-family housing

projects to construct affordable housing. (Action Apartment, supra, 166 Cal.App.4th at

pp. 459-461.) The plaintiff argued it was entitled to assert a facial challenge to the

ordinance using the Nollan/Dolan test. Based on settled United States Supreme Court

and California Supreme Court case law, the Action Apartment court concluded the

Nollan/Dolan test applies only to as-applied challenges and not to facial challenges. The

court stated: "Both the United States and California Supreme Courts have explained the

two-part Nollan/Dolan test developed for use in land exaction takings litigation applies

only in the case of individual adjudicative permit approval decisions; not to generally

applicable legislative general zoning decisions. [Citations.] . . . 'The "sine qua non" for

application of Nollan/Dolan scrutiny is thus the "discretionary deployment of the police

power" in "the imposition of land-use conditions in individual cases." [Citation.] Only

25 "individualized development fees warrant a type of review akin to the conditional

conveyances at issue in Nollan and Dolan." ' " (Action Apartment, at p. 470, quoting San

Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 670 (San

Remo).) 13 Accordingly, the Action Apartment court concluded the Nollan/Dolan nexus

and rough proportionality test, which is used to determine whether a proposed condition

is unconstitutional, did not apply to the plaintiff's facial challenge to the ordinance.

(Ibid.)

Because the Nollan/Dolan test applies to challenges under the unconstitutional

conditions doctrine (California Building, supra, 61 Cal.4th at pp. 457-458), Action

Apartment supports the proposition that the unconstitutional conditions doctrine does not

apply to facial challenges like BBC's in the present case, although Action Apartment did

not involve an exaction or refer to the facial challenge in that case as an unconstitutional

conditions claim.

BBC disagrees with this proposition and cites San Remo and the federal case Levin

v. City & County of San Francisco (2014) 71 F.Supp.3d 1072 (Levin) as examples of

courts having adjudicated facial challenges based on the unconstitutional conditions

doctrine. BBC states that the City has mistakenly represented that San Remo did not

involve an unconstitutional conditions claim.

13 The Action Apartment court earlier stated that "[t]he United States and California Supreme Courts have applied the Nollan/Dolan nexus and rough proportionality test only when an adjudicative decision is made in the case of an individual developer's request for approval of a project." (Action Apartment, supra, 166 Cal.App.4th at p. 460.)

26 San Remo did not identify the plaintiffs' facial challenge to the challenged

ordinance in that case as an unconstitutional conditions claim, and the phrase

"unconstitutional conditions doctrine" does not appear in the Supreme Court's opinion.

The challenged ordinance in San Remo required owners of a hotel wanting to convert all

of the rooms in the hotel to daily rentals rather than long-term rentals to pay a fee into a

governmental fund for the construction of low and moderate-income housing. (San

Remo, supra, 27 Cal.4th at p. 649.) The Court of Appeal in San Remo found that the

ordinance involved an exaction and applied the heightened scrutiny of the Nollan/Dolan

test (San Remo, supra, 27 Cal.4th at pp. 657), but the California Supreme Court reversed

and concluded the housing replacement fees in question were not subject to Nollan/Dolan

scrutiny because the fee was generally applicable to a class of property owners and was

not applied to individual owners on an ad hoc basis. (San Remo, at pp. 668-670.) Thus,

to the extent the San Remo plaintiffs' constitutional challenge and bid for heightened

scrutiny under the Nollan/Dolan test was an unconstitutional conditions claim, the

Supreme Court decided it did not lie.

In Levin, the plaintiffs facially challenged a San Francisco ordinance that

"require[d] property owners wishing to withdraw their rent-controlled property from the

rental market to pay a lump sum to displaced tenants." (Levin, supra, 71 F.Supp.3d at p.

1074.) The federal district court applied the unconstitutional conditions doctrine and the

Nollan/Dolan test, and concluded the ordinance did "not pass constitutional muster"

because it was "a monetary exaction that 'lack[s] an essential nexus and rough

proportionality to the effects of the proposed new use of the specific property at issue.'

27 [Citation.] The Ordinance does so on its face, because the explicit purpose of the statute

is to approximate a rent differential sum that is neither caused by nor related to the impact

of property owners' decisions to exercise the right to regain possession of their parcels."

(Id. at pp. 1088-1089, italics added.)

Application of the unconstitutional conditions doctrine to the facial challenge in

Levin appears to be an anomaly that could be explained by the fact the ordinance at issue

enabled the plaintiffs to calculate the precise sum they would be required to pay (Levin,

supra, 71 F.Supp.3d at p. 1074) and, therefore, the case was ripe under the rule that

"takings claims that challenge a legislative demand for money . . . are ripe without a prior

damages suit [seeking reimbursement after payment of the challenged money demand]."

(Id. at p. 1079.) In any event, as a federal district court case, Levin is not binding

authority, and it is inapposite because none of the policies at issue in the present case

require an exaction in the form of payment of money. However, even assuming BBC's

challenges to policies 2.60.5 and 4.19 under the unconstitutional conditions doctrine do

not automatically fail because they are facial challenges, we conclude they fail for the

reasons explained below.

E. Analysis of BBC's Constitutional Challenges to Policies 2.60.5 and 4.19

1. Policy 2.60.5

Policy 2.60.5 provides: "Upon application for a coastal development permit for

the replacement of a private beach stairway or replacement of greater than 50% thereof,

private beach accessways shall be converted to public accessways where feasible and

where public access can reasonably be provided. The condition to convert the private

28 stairway to a public stairway shall only be applied where all or a portion of the stairway

utilizes public land, private land subject to a public access deed restriction or private land

subject to a public access easement."

BBC contends this policy is unconstitutional because it exacts private property for

public use without compensation as a condition of a permit. BBC argues that repairing or

replacing existing stairways creates no new burden on public access that could justify

depriving private owners the right to exclude the public without compensation.

Policy 2.60.5 does not meet the requirements for a successful facial challenge on

the ground it effects a compensable taking by imposing an unconstitutional condition.

Policy 2.60.5's permit condition requiring conversion of a private stairway to a public

accessway cannot be deemed on its face to conflict with constitutional principles in the

generality or great majority of cases because it does not inevitably require a property

owner to convert a private stairway to a public stairway when the owner replaces or

repairs the stairway. The policy requires conversion only where it is feasible, public

access can be reasonably provided, and the stairway already partially uses public land or

a land subject to a public easement or deed restriction. Thus, whether the policy effects

an exaction or physical invasion of private property for which the City must pay just

compensation under the Nollan/Dolan test can be determined only on a case-by-case

basis as individual property owners subject to the policy's permit condition apply for

permits to repair or replace their beach stairways.

29 1. Policy 4.19

Policy 4.19 provides: "New shoreline or bluff protective devices that alter natural

landforms along the bluffs or shoreline processes shall not be permitted to protect new

development. A condition of the permit for all new development and blufftop

redevelopment on bluff property shall require the property owner [to] record a deed

restriction against the property that expressly waives any future right that may exist

pursuant to Section 30235 of the Coastal Act to new or additional bluff retention

devices."

Section 30235 provides: "Revetments, breakwaters, groins, harbor channels,

seawalls, cliff retaining walls, and other such construction that alters natural shoreline

processes shall be permitted when required to serve coastal-dependent uses or to protect

existing structures or public beaches in danger from erosion and when designed to

eliminate or mitigate adverse impacts on local shoreline sand supply. Existing marine

structures causing water stagnation contributing to pollution problems and fishkills

should be phased out or upgraded where feasible."

BBC contends the waiver condition imposed by policy 4.19 is an unconstitutional

exaction because there is no logical connection or nexus between the waiver requirement

and any identified adverse public impact of new development.

BBC's challenge to Policy 4.19 fails to meet two requirements for a facial

challenge on the ground the policy effects an unconstitutional taking of property, and also

fails to meet a separate requirement for application of the unconstitutional conditions

doctrine. First, policy 4.19 cannot be deemed on its face to inevitably pose a present total

30 and fatal conflict with applicable constitutional prohibitions or impose a taking in most

cases because the condition applies only to "new development and blufftop

redevelopment on bluff property," which for specific properties may or may not occur in

the future. Thus, BBC's unconstitutional conditions challenge to policy 4.19 falls within

the principle that "the plaintiff has a heavy burden to show the [enactment] is

unconstitutional in all or most cases, and ' "cannot prevail by suggesting that in some

future hypothetical situation constitutional problems may possibly arise as to the

particular application of the [enactment]." ' " (Coffman, supra, 176 Cal.App.4th at p.

1145.)

Second, the condition requiring a property owner to waive the right under section

30235 to new or additional bluff retention devices does not constitute a physical invasion

of property or deprive blufftop property owners of all economically viable use of their

properties. The extent to which the policy would cause economic harm to particular

property owners can be determined only on a case-by-case basis through as-applied

challenges to the policy.

Finally, as noted above, California Building stated that the unconstitutional

conditions doctrine does not apply "where the government simply restricts the use of

property without demanding the conveyance of some identifiable protected property

interest (a dedication of property or the payment of money) as a condition of approval."

(California Building, 61 Cal.4th at p. 460, italics added.) "[T]here can be no valid

unconstitutional conditions takings claim without a government exaction of property

. . . ." (Id. at p. 457.) As the trial court correctly ruled, the condition on future

31 development imposed by policy 4.19 does not require an exaction but "simply places a

restriction on the way the homeowner may use its property." Specifically, policy 4.19

does not require a conveyance of money or property; it requires the property owner to

record a deed restriction against the property that expressly waives any future right under

section 30235 to new or additional bluff retention devices. Because policy 4.19 simply

restricts the use of property without demanding an exaction of a property interest or

money as a condition of approval, the unconstitutional conditions doctrine does not

apply.

In conclusion, BBC's constitutional challenges essentially fail because they are not

ripe for adjudication until there has been a final, definitive, position regarding how the

City will apply the challenged enactment to the complaining party's land; only then can it

be determined whether a taking has occurred. (Hensler, supra, 8 Cal.4th at pp. 10-11.)

Notably, the City and Commission are under an express statutory directive to not apply

the Coastal Act in a way that would infringe constitutional rights. Section 30010

provides: "The Legislature hereby finds and declares that this division is not intended,

and shall not be construed as authorizing the [C]ommission, port governing body, or local

government acting pursuant to this division to exercise their power to grant or deny a

permit in a manner which will take or damage private property for public use, without the

payment of just compensation therefor. This section is not intended to increase or

decrease the rights of any owner of property under the Constitution of the State of

California or the United States."

32 Similarly, policy 5.9.5 of the City's ALUP articulates the following general policy

regarding new development: "Ensure the private and public interest in protecting and

preserving private property rights under the state and federal Constitutions, the Coastal

Act, and local ordinances, such that regulations are not overreaching and no private

owner is denied reasonable use of his, her or its property. In accordance with Public

Resources Code section 30010, this Policy is not intended to increase or decrease the

rights of any property owner under the Constitution of the State of California or of the

United States."

Invalidating the policies on BBC's facial challenges before they are applied would

deprive the City and Commission the opportunity to apply them in a way that will not

result in unconstitutional takings without just compensation, as required by section 30010

and policy 5.9.5. And where specific application of a policy would constitute a taking

requiring compensation, facial invalidation before application would deny the City its

range of available options to avoid paying compensation for the taking, such as

exempting the property from the regulation, amending the regulation, or rescinding the

regulation. (Hensler, supra, 8 Cal.4th at pp. 11-12, 13.)

III. The Disposition of This Appeal Does Not Preclude Future As-applied Challenges to the City's ALUP

Although we have upheld the City's ALUP in its entirety against BBC's facial

challenges, the disposition of this appeal does not preclude any property owner affected

by the ALUP from later challenging the application any of its policies to the owner's

specific property. Many federal reviewing courts have held that the doctrine of res

33 judicata does not bar claims that arise from events that postdate the filing of the initial

complaint. In Chicanos Por La Causa, Inc. v. Napolitano (9th Cir. 2009) 558 F.3d 856,

the Ninth Circuit Court of Appeals observed that the plaintiffs' successful facial challenge

to a statute was "brought against a blank factual background of enforcement and outside

the context of any particular case. If and when the statute is enforced, and the factual

background is developed, other challenges to the Act as applied in any particular instance

or manner will not be controlled by [this] decision." (Id. at p. 861; accord, Whole

Woman's Health v. Hellerstedt, ___ U.S. ____, 136 S.Ct. 2292, 2305 [doctrine of claim

preclusion did not bar petitioners' postenforcement as-applied challenge to statute

because it was not the same claim as petitioners' pre-enforcement facial challenge to

statute]; Howard v. City of Coos Bay (9th Cir. 2017) 871 F.3d 1032, 1040 ["[F]or

purposes of federal common law, claim preclusion does not apply to claims that accrue

after the filing of the operative complaint."]; Morgan v. Covington Twp. (3d Cir. 2011)

648 F.3d 172, 178 ["[R]es judicata does not bar claims that are predicated on events that

postdate the filing of the initial complaint[.]"].)

We agree with the principle that the res judicata doctrine does not bar claims that

arise from future applications for permits governed by the City's ALUP. " [']The doctrine

of res judicata rests upon the ground that the party to be affected, or some other with

whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a

former action in a court of competent jurisdiction, and should not be permitted to litigate

it again to the harassment and vexation of his opponent.' " (Citizens for Open Access etc.

Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065, quoting Panos v. Great

34 Western Packing Co. (1943) 21 Cal.2d 636, 637.) None of the property owners in the

City who are affected by the subject ALUP have had the opportunity to litigate the

validity or constitutionality of any of the policies in the ALUP as applied to them.

Therefore, the doctrines of res judicata and collateral estoppel do not bar them from

bringing future challenges to the application of policies to their specific properties. As

the Commission stated in its responding and opening brief, "Property owners in the City,

including individual members of BBC, will not be without a remedy regarding these

policies. They can always challenge the application of the policies to their properties." 14

DISPOSITION

The portions of the judgment granting BBC's motion for judgment on its petition

for writ of mandate as to the first cause of action of BBC's second amended complaint

(challenging policy 4.22) and fifth cause of action (challenging policy 2.60) and directing

issuance of a peremptory writ of mandate are reversed. The judgment is otherwise

14 Although it is unnecessary to address the issue, we note that the City and Commission's argument that BBC's facial challenges to policies 4.19 and 4.22 are barred under the doctrine of res judicata has merit. The City and Commission contend those challenges are barred by res judicata because policies 4.19 and 4.22 were not added or amended between BBC's first dismissed action and the present action. In Cal. Coastal Com. v. Superior Court (1989) 210 Cal.App.3d 1488, this court held that once a decision by the Commission becomes final because it is not challenged by a petition for writ of administrative mandate under section 30801 within 60 days, it is res judicata as to any future challenge and cannot be later challenged in a collateral proceeding. (Cal. Coastal Com., at pp. 1493-1494, 1496-1501, 1497, fn. 5.) Accordingly, the Commission's decision to approve policies 4.19 and 4.22 became final when the prior action challenging that decision was dismissed and, under the doctrine of res judicata, cannot be collaterally challenged in the present action. In light of our disposition of BBC's challenges to the ALUP on the grounds discussed above, we need not address the City and Commission's argument that BBC was required to provide an administrative record to obtain judicial review of the challenged policies. 35 affirmed. The December 6, 2016 order ruling on BBC's motion for judgment on its

petition for writ of mandate and the peremptory writ of mandate filed on April 5, 2017,

are vacated. The court is directed to enter an order denying BBC's motion for judgment

and petition for writ of mandate in their entirety. The City, the Commission, and

Surfrider are awarded their costs on appeal.

HALLER, Acting P. J. WE CONCUR:

O'ROURKE, J.

IRION, J.