Beach Access, Legal
June 20 2013

Long Fought Beach Access Battle at Strands Advances with Appellate Court Ruling

by Angela Howe

Surfrider Foundation received a positive ruling from the California Appellate Court this week when it ruled in favor of California Coastal Commission ("CCC") control over beach access rights at Strands Beach in Dana Point.  Surfrider won our case against the City of Dana Point in 2011 at the trial court when we challenged the City's bogus nuisance ordinance. The City then appealed that case, as did the Coastal Commission.  This appellate opinion of that consolidated case reaffirms the public's constitutionally-protected beach access rights, this time through strengthening the CCC's jurisdiction.

The City appealed the trial court case that Surfrider Foundation won to the California Court of Appeal, Fourth Appellate District, and the CCC appealed their consolidated case regarding their jurisdiction to correct these pretextual attempts by city to curtail beach access.  That consolidated case was heard by a three judge appellate panel in San Diego on December 11, 2012. On June 17, 2013, Justices Terry O'Rourke and Cynthia Aaron ruled that the trial court erred in interpreting the jurisdiciton of the CCC. In sum, the majority opinion of the court ruled that although local municipalities do have a right to declare and abate public nuisances, such nuisance declarations cannot be a pretext for avoiding the requirements of the local coastal program.  The appellate court noted that the Legislature likely envisioned a city's use of the nuisance abatement savings clause, under Coastal Act section 30005(b), to be used in ways that further the purposes of the Coastal Act, and presumably not in ways that would impede the public from their Constitutionally protected right to maximum beach access. This is a right that is also protected by Chapter 3, Article 2 provisions of the California Coastal Act.  On page 45 of the opinion, the justices write that "the primary purpose of subdivision (b) is to make clear that the Commission does not have exclusive jurisdiction to take action to protect the coast, and that municipalities may act to legitimately abate nuisance within the coastal zone..." (emphasis added).  This narrow interpretation of section 30005(b) will be very useful precedent in preventing the abuse of the nuisance abatement clause by other municipalities and developers who want to obviate the protections of the Coastal Act.

The majority court concluded that the City, as the plaintiff in the original action, was required to demonstrate that it had exercised its nuisance abatement powers under section 30005(b) in good faith and not as pretext for avoiding Coastal Act requirements. Since the appellate court is not a trier of fact, they remanded this issue to back to the lower court who already ruled that the City acted "arbitrarily and capriciously" in enacting the nuisance ordinance that cuts off beach access.  The court decided to hold the Surfrider Foundation portion of the consolidated case in abeyance (or "on hold") because presumably our beach access greivance will be mooted upon this Coastal Commission jurisdiction ruling.

Interestingly, the dissent written by Justice Benke, disagrees with the majority opinion on Coastal Commission jurisdiction in siding with the City on their nuisance jurisiction.  However, the dissent goes on to note her willingness to reach the Surfrider Foundation portion of the case as perhaps the most expedient way to protect the public's interest in unfettered access to the beach.

Overall, Surfrider Foundation is very pleased with the ruling in the case and is hopeful that it will lead to maximized beach access not only in Dana Point but throughout the state.