Featured Case

Coastal Commission Foot-Dragging On Permits Must End

Marsh v. California Coastal Commission

Contact: Damien M. Schiff or Paul J. Beard II

Status: Petition for review denied April, 2010.

Summary:
In the late 1980s, Dr. M. Lou Marsh purchased a four-acre lot in an unincorporated portion of San Diego County known as the San Dieguito Valley (just east of the Del Mar Racetrack). She built a single-family home on the lot. In 1999, Dr. Marsh applied to the California Coastal Commission for approval of a subdivision, which would create one undeveloped parcel of about 2.5 acres in size. The Commission denied the application. Several years later, Dr. Marsh reapplied for the subdivision. At its December, 2006, meeting (held more than 49 days after the application’s filing), the Commission denied the application again. In voting on Dr. Marsh’s application, the Commission took a so-called “unanimous roll call vote,” meaning that none of the Commissioners present actually voted for or against the application, but only that none of the Commissioners objected to the chairperson’s request that a unanimous roll call vote be taken. The Commission’s regulations expressly state that all voting “shall be by roll call, with the chairperson voting last.”

The Coastal Act requires that a coastal development permit be issued for any development that is consistent with the local jurisdiction’s certified local coastal program (LCP) and the Act’s public access policies. In denying the application, the Commission refused to apply the standards set forth in San Diego County’s 1985 certified LCP. The Commission reasoned that, because the County had never formally accepted permitting responsibility, the LCP therefore never became “effective”—even though the Commission had certified it. The Commission ultimately denied the application on the grounds that the subdivision would lead to the destruction of environmentally sensitive habitat, would violate certain open space easements, and would negatively affect the area viewshed.

Following the Commission’s denial, Dr. Marsh filed a petition for writ of mandate in San Diego County Superior Court. The court denied the writ, and judgment was entered against Dr. Marsh. On appeal, PLF will argue that: (1) San Diego County’s certified LCP provides the correct standard of review, because certification, without more, renders an LCP effective as a matter of law; (2) the Commission’s failure to act upon Dr. Marsh’s application within 49 days resulted in the automatic issuance of her permit; and (3) the Commission’s failure to take a proper vote on her application means that the Commission has never taken action on her application, which results, under the Permit Streamlining Act, in the automatic issuance of her permit.  In a decision issued in January, 2010, the California Court of Appeal affirmed the Commission's denial of Dr. Marsh's permit, relying largely on principles of agency deference.