On February 18, 2020, in Citizens for South Bay Coastal Access v. City of San Diego, __ Cal.App.5th __ (2020) (Case No. D075387), the Fourth District Court of Appeal rejected a project opposition group’s challenge, under the California Coastal Act, to San Diego’s approval of a conditional use permit to allow the City to convert an existing Super 8 motel into a transitional housing facility for homeless misdemeanor offenders.

The project site is in the southern end of San Diego Bay in the City’s Coastal Overlay Zone, which is governed by a certified Local Coastal Program.  Exercising its authority under the LCP, the City approved a conditional use permit for the project to allow rehabilitation of the building but determined it was exempt from the requirement to obtain a Coastal Development Permit under an LCP provision that exempts improvements to existing structures that do not result in an “intensification of use.”  In contrast to the LCP, the Coastal Act and its regulations require a CDP whenever an improvement to a structure “changes the intensity of use.”

The plaintiff group argued that the Coastal Act preempted the City’s LCP and required the City to obtain a CDP under the Coastal Act and its regulations.  The trial court agreed that state law preempts portions of the City’s existing-structure exemption that are more permissive than state law.

The Court of Appeal reversed, holding that preemption based on a contradiction between a local ordinance and state law arises only when “the ordinance directly requires what the state statute forbids or prohibits what the state enactment demands.”  Here, the Coastal Act and its regulations make it clear that the existing-structure exemption does not apply to the City’s CDP decisions because the City’s coastal development is governed by a certified LCP.  Once the Commission certifies a local LCP it delegates authority over coastal development permits to the local government.  Thus, because the state law provisions at issue do not apply to San Diego, the City’s LCP does not require what the state law forbids or prohibit what the state law demands.

The Coastal Act expressly allows a local government to be governed by its certified LCP.  State law only governs in circumstances where the Commission has jurisdiction to issue a CDP.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.