California Coastal Commission's role uncertain in LA wildfire rebuilding after Newsom orders

After declaring a state of emergency due to the devastating wildfires in Los Angeles and Ventura Counties, Gov. Gavin Newsom suspended certain environmental permit procedures by issuing Executive Order N-4-25 on Jan. 12, 2025. Among other measures, Executive Order N-4-25 suspended all permit requirements under the California Coastal Act to rebuild structures that were damaged or destroyed by the wildfires. This suspension applies if the rebuild is in substantially the same location and does not exceed 110% of the footprint of the structure that was legally established immediately before the wildfires. These conditions for suspending Coastal Act requirements largely mirror what the Coastal Act already exempts from the definition of a "new development" requiring a permit.

In response to Executive Order N-4-25, the California Coastal Commission (Commission) issued guidance stating that Coastal Development Permits (CDPs) generally would not be required to replace structures affected by the wildfires. However, citing to the statutory exemption provision under section 30610(g) of the Coastal Act, the Commission noted that rebuilt structures must be for the same use and conform with current local building requirements in order for the CDP exemption to apply, in addition to the conditions outlined by Executive Order N-4-25. This interpretation could prevent the reconstruction of nonconforming structures and potentially affect the rebuild of structures that were built under prior building codes.

On Jan. 27, 2025, repudiating the Commission's guidance and labeling it "legally erroneous," the governor issued Executive Order N-14-25, which clarified that all of the Coastal Act's requirements, including the statutory exemption criteria under section 30610(g), were suspended. The governor further directed the Commission to avoid any action that interferes with the purpose of Executive Order N-4-25, including refraining from issuing "guidance suggesting that any permitting-related procedure under the Act continues to apply."

How may the governor suspend the commission's powers under the Coastal Act?

The Coastal Act grants the Coastal Commission broad authority to regulate building structures in the coastal zone and generally requires that projects within the coastal zone obtain a CDP. Section 8571 of the California Emergency Services Act authorizes the governor to suspend any regulatory statute or agency regulations during a state of emergency where the governor declares that strict compliance with the regulations would delay mitigating the effects of the emergency. Although these emergency powers extend to state statutes and agency regulations, local governments still retain jurisdiction over the enforcement of their municipal regulations, such as local building and zoning codes.

This means that the governor is authorized to suspend Coastal Act requirements and prevent the Commission from using its powers under the Coastal Act to enforce statutory requirements during a declared state of emergency. However, the Coastal Act also requires local governments to incorporate coastal protections into municipal building and zoning regulations, which are submitted to the Commission as a Local Coastal Plan (LCP). Once the Commission certifies an LCP, local governments generally control the issuance of CDPs while the Commission retains limited jurisdiction over permit appeals.

In the area of the coastal zone that burned, there are a patchwork of CDP regulations ranging from the Commission's original jurisdiction to local agencies with LCPs, and in some areas, an unusual interim condition.

Additionally, although Executive Order N-14-25 makes clear that certain conditions to receive an exemption from applying for a CDP are suspended, given the structure of the Coastal Act and corresponding LCPs, many of the Coastal Act's permit requirements are already incorporated into local building and zoning codes. Local regulations, therefore, may be in the crosshairs with the governor's goal of removing procedural barriers to housing reconstruction.

Where does this leave those looking to rebuild, and what role might the Commission play?

The tension between Executive Order N-4-25 and the Commission's guidance leaves cities in the difficult position of determining how to apply permit requirements during the rebuild. Although Executive Orders N-4-25 and N-14-25 contemplate an exemption for projects that propose to rebuild structures with a different underlying use, such as increased density or projects to rebuild structures that were legally established at the time they were built but no longer conform with the current municipal code, cities and counties ultimately will have to reconcile the executive orders with local regulations.

This tension is further complicated by the Commission's review powers over localities implementing certified LCPs. For example, parts of unincorporated Los Angeles County affected by the fires operate under the county's LCP, and decisions regarding the issuance of CDPs can therefore be appealed to the Commission. But Executive Order N-14-25 expressly directs the Commission to refrain from using its authority to hear appeals on Coastal Act permit decisions. It remains to be seen how the Commission might further attempt to flex its powers to influence the extent that local coastal regulations continue to apply despite the governor's executive orders.

Following the governor's executive orders, Mayor Karen Bass issued an emergency executive order for the City of Los Angeles that suspended municipal requirements for "eligible projects," which are defined to include the rebuilding of structures that do not conform to current city codes but require that the rebuild be for the same use. The Los Angeles County Board of Supervisors issued a resolution to help streamline redevelopment that was curiously silent on whether Coastal Act requirements are suspended.

As the state continues to implement mandates to increase its supply of housing, this patchwork of interpretations over Coastal Act exemptions may set the stage for a larger fight over housing to be played out among the ashes of Los Angeles.