Do You Still Need a Permit to Be Born or Die in the Coastal Zone?
The California Coastal Act prohibits “development” in the California Coastal Zone without a coastal development permit. The act defines “development” to include a “change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act”. (Public Resources Code §30106.) You might think that “a change in density or intensity of use” refers to zoning changes, particularly because the word being defined is “development”. But the California Coastal Commission has taken the position that it can regulate anything that might affect intensity of use, including the cost of parking. (See Surfrider Foundation v. California Coastal Com. (1994) 26 Cal.App.4th 151, 158 (upholding Commission’s finding that parking charges would not substantially affect use).)
We have occasionally teased the Commission about its position. We pointed out that, under its interpretation, no one can be born or die within the Coastal Zone without a permit. It has bristled and denied the statement—but has not offered any rationale that might exclude births and deaths from its interpretation of “development”.
As a practical matter, the Coastal Commission does not routinely require permits for births, deaths, or changes in the cost of services within the Coastal Zone. But when it doesn’t like a change it can take very aggressive positions, as can the local governments that also enforce the Coastal Act. In the famous Martin’s Beach case, for example, the Commission insisted that a private road be kept open to the public (see Surfrider Foundation v. Martins Beach 1, LLC (2017) 14 Cal.App.5th 238, 251), and the county demanded that parking be provided and hot dogs be served at the prices in effect fifty years ago.
A recent decision of the court of appeal, however, has provided a breath of fresh air. An environmental group sued Airbnb and argued that its listing of short-term rentals constituted development without a permit in violation of the Coastal Act. (Coastal Protection Alliance Inc. v. Airbnb, Inc. (2023) 95 Cal.App.5th 207.) The plaintiff contended that short-term rentals “are developments because they enable more people to reside at a residential property”. (Id. at 217.) The court correctly reasoned that this argument would require permits for births:
Taken literally, CPA’s argument would apply any time there is an increase in the number of occupants at a residence. Following this reasoning, if a couple sold their home to a family of four, that would intensify the use of the residence. … An intensification of use would also occur if the occupants of a residence had a baby, took in a house guest or hired a live-in nanny.
(Id.) The plaintiff argued these “hypothetical absurdities” would likely be exempt, but could not identify any exemption. The court concluded that “[t]his interpretation goes well beyond the plain text of the statute, which on its face applies only when there is a ‘change’ in density and intensity of the land’s ‘use,’ not simply any time more (or different) people have access to the property.” (Id.) Whether using a residence as a short-term rental is “development”, according to the court, “depends on the permissible scope of the residence’s existing use”—that is, on its zoning. (Id. at 219-220.)
So is it now safe to be born or die within the Coastal Zone without a permit? Not quite. The problem comes from a California Supreme Court decision holding that “conversion of a rental mobilehome park to resident ownership” was development under the Coastal Act. (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 795.) Although the Supreme Court reasoned that this conversion was a “subdivision” specifically included in the definition of “development”, it went on to use problematic language in its description of the effects of a conversion: “that a conversion might not immediately alter use of land does not preclude the possibility it will lead to an increase in the density or intensity of use…Nor is it impossible that owners would block public access to coastal areas or increase the number of residents in their units.” (Id. at 797, emphasis added.)
In Coastal Protection Alliance the court of appeal concluded that this language was merely an example of what effects a subdivision, which was expressly included in the definition of “development”, might have in the future even if none was immediately apparent, and that the Supreme Court did not intend its language to apply generally: “We do not read Pacific Palisades to hold that any increase in the number of residents is a development unless accompanied by a contemporaneous change in the land use.” (Coastal Protection Alliance at 219.)
Following the decision in Coastal Protection Alliance, the alliance petitioned the California Supreme Court, but the Supreme Court denied review. Perhaps other courts of appeal will follow Coastal Protection Alliance, and the issue will be laid to rest. In the meantime, however, it would be best not to die in the Coastal Zone—at least, not without a permit.
Lawrence Bazel
235 Montgomery Street, Suite 935
San Francisco, CA 94104
Telephone: (415) 402-2700
