Santa Cruz County and California Coastal Commission Exceed Authority

Big Creek Lumber Co. v. County of Santa Cruz, 10 Cal. Rptr. 3d 356 (Cal. App. 2004).

Stephanie Showalter, J.D., M.S.E.L.

In February, the California Court of Appeal for the Sixth Appellate District ruled that the California Coastal Commission did not have the authority to require Santa Cruz County to impose additional zoning criteria for timber production within the coastal zone. Additionally the court held that the County’s zoning regulations were expressly preempted by the Forest Practice Act of 1973 (FPA).

Background
In 1998, the Santa Cruz County Timber Technical Advisory Committee recommended that the County adopt additional timber regulations. The County initially sought to proceed through the State Forestry Board (Board). The County submitted proposed forest practice rules to the Board as authorized by the FPA. Under the FPA, counties may recommend forest practice rules and regulations to the Board which the Board shall adopt if the proposed rules are consisted with the purposes of the FPA and necessary to protect local needs.1 The Board accepted some of the County’s proposed rules, but rejected others including a riparian “no-cut” corridor and limits on helicopter operations.

Foiled by the Board, the County adopted Ordinance 4529 banning timber harvesting in designated riparian areas in November 1998. In November 1999, the County adopted two more ordinances affecting timber harvesting. Ordinance 4571 replaced Ordinance 4529 and continued the ban on timber harvesting in riparian corridors. Ordinance 4572 limited the area in which helicopter operations could take place.

Then in December 1999, the County amended the County’s General Plan/Local Coastal Program (LCP) and zoning code. The amendments limited timber harvesting to properties, both inside and outside the coastal zone, zoned Timber Production (TP) or Mineral Extraction Industrial, and properties outside the coastal zone zoned Parks, Recreation, and Open Space.2 The County forwarded the amendments to the California Coastal Commission (Commission) for approval. The Commission approved the amendments in 2000, but only after the County had incorporated two modifications proposed by the Commission which imposed limitations on applications for timber production zoning within the coastal zone.

The Lawsuits
In 1998, Big Creek Lumber Company filed suit challenging Ordinance 4529 and several other actions of Santa Cruz County based on violations of the California Environmental Quality Act (CEQA) and preemption. In 2000, the Central Coast Forest Association (CCFA) challenged Ordinances 4571 and 4572 and the Commission’s certification, also on the basis of the CEQA and preemption. The court later consolidated Big Creek’s and CCFA’s actions.

Big Creek and CCFA forwarded several arguments. First, they argued that the County’s riparian corridor and helicopter operation regulations violated the Timberland Productivity Act of 1982 (TPA). Big Creek and CCFA also argued that the County’s new zoning regulations violated the FPA. Finally, the plaintiffs argued that the modifications required by the Commission as a prerequisite for certification illegally imposed additional zoning criteria for timber production lands in violation of the TPA.

The trial court found for Big Creek and the CCFA with regard to the riparian corridor and helicopter regulations and the Commission’s modifications. The trial court, however, held that the County’s zoning ordinances which merely limited timber operations to certain zones were not preempted by state law. Big Creek and CCFA appealed the decision of the trial court, arguing that state law preempted the County’s ordinances in their entirety. Santa Cruz County and the Commission also appealed the court’s decision.

Coastal Commission Modifications
The Commission has chief responsibility for regulating the use and development of California’s coastal zone. Local governments participate in the regulation of the coastal zone through the development of local coastal plans, which must be certified by the Commission. The local plans may be amended by the local governments, but amendments are ineffective until certified by the Commission.

As a condition of certification, the Commission required Santa Cruz County to impose limitations on applications for timber production zoning in the coastal zone, including requiring TP rezoning applications to be processed as LCP amendments. The court held, however, that the Commission does not have the authority to condition certification on the imposition of additional conditions. Under the TPA, timberland production zones are restricted to the growing and harvesting of timber and compatible uses.3 Counties are authorized to adopt criteria for timberland production zoning, but the county “shall not impose any requirements in addition to those listed in [the TPA].”4 Because the county did not have the power to impose additional criteria and the Commission may not require a local government to exercise power it does not have,5 Santa Cruz County’s adoption of additional criteria is invalid.

Preemption
A county “may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”6 Pursuant to this authority, Santa Cruz County adopted several measures regulating timber harvesting in the County, including zone districts, riparian corridors, and helicopter operations. The court determined that these measures are in conflict with general laws, specifically the TPA and the FPA, and therefore preempted by California state law.

Local measures are preempted by state law when “local measures duplicate or contradict state law, or when they invade a field that the state has fully occupied, either expressly or implicitly.”7 The zone districts adopted by the County restricted logging to designated areas. The court held that these zone districts regulated the conduct of timber operations by prohibiting logging in certain areas. Local regulation of the conduct of timber operations is prohibited by the FPA.8 The County’s zone district regulations contradicted the FPA by authorizing the local regulation of timber operations and are preempted by the FPA.

Santa Cruz County also adopted a riparian ordinance, which applied within timber production zones, prohibiting logging within 50 feet of a perennial stream or 30 feet of an intermittent stream. The court determined that the FPA preempted the riparian ordinance, because the County’s buffer width was different from the width of the buffer set by the State Forestry Board. Consequently, logging near streams allowable under state law could be prohibited by the Santa Cruz ordinance, clearly contradicting state law.

Finally, Ordinance 4572 limited helicopter operations to qualifying parcels within the boundaries of an approved timber harvest plan. As mentioned above, the FPA prohibits local regulation of the conduct of timber operations, which includes the removal of timber.9 The court held that Ordinance 4572 attempts to regulate the conduct of timber operations by regulating the removal of timber and is therefore preempted by the FPA.

Conclusion
The California Court of Appeals held that the Commission did not have the authority to require Santa Cruz County to impose additional criteria regarding TP rezoning. Additionally, the local measures adopted by the County were an impermissible attempt to regulate the conduct of timber harvesting and preempted by the FPA.

Endnotes
1. Cal. Pub. Resources Code § 4516.5 (2004).
2. Big Creek Lumber Co. v. County of Santa Cruz, 10 Cal. Rptr. 3d 356, 362 (Cal. App. 2004).
3. Cal. Gov. Code § 51115 (2004).
4. Id. at § 51113, subd. (c).
5. Cal Pub. Resources Code § 30005.5 (2004).
6. Cal. Const. Art. XI, § 7.
7. Big Creek, 10 Cal. Rptr. 3d at 381.
8. Cal. Pub. Resources Code § 4516.5 sudb. (d) (2004).
9. Id. at § 4527.