Calif. Supreme Court to determine future of Coastal Commission

SAN FRANCISCO – From the soaring cliffs of Big Sur to the teeming wetlands of Bolsa Chica, California has one of the world's most pristine and protected coasts, drawing millions of people each year to its sandy beaches and rugged shores.

Conservationists say that's no accident – it's the result of a voter initiative passed more than 30 years ago that created the California Coastal Commission, the powerful government agency charged with protecting and restoring the state's 1,100-mile coastline.

The California Supreme Court hears arguments Wednesday in a case that will determine the future of the commission, which has made more than 100,000 decisions over the past three decades.

The commission has made its share of enemies, especially among seaside residents and real estate developers who say the panel routinely tramples on private property rights and harbors an extreme environmental agenda.

"Year after year, the Coastal Commission has displayed an unbridled arrogance against people living on the coast," said James Burling, an attorney for the Pacific Legal Foundation, which advocates for private property rights. "The Coastal Commission has perverted its initial mission into a power grab for itself."

The plaintiffs in the case before the court argue the commission is unconstitutional because it wields executive powers, yet two-thirds of its commissioners are chosen by legislators.

"The stakes for Californians and future generations are enormous. It's the future of the coast," said Peter Douglas, who has directed the commission for the past 20 years. "Whether it continues to go in the direction of conservation and restoration, or whether we open the gates to pell-mell development."

The commission, established by ballot measure in 1972 and later made permanent by the California Coastal Act in 1976, makes key decisions on coastal development, public access, offshore drilling and marine habitat protection.

In the 1990s, it blocked plans to build a seaside resort proposed by the Hearst Corp. in San Luis Obispo County, as well as a major residential development in the Bolsa Chica wetlands in Orange County. In the 1980s, it forced property owners to create easements allowing public access to the beaches – a practice later condemned by the U.S. Supreme Court.

If not for the commission, California's coastline would look quite different, perhaps more like southeast Florida, with less public access and forests of high rises and resorts, Douglas said.

"People take the coast for granted. They don't realize that the reason the coast is so accessible and wild is because we have a strong coastal protection law," Douglas said. "People forget that the commission's greatest achievements are the things you don't see."

Critics say the commission shows little respect for individual property rights or the interests of coastal communities, making it difficult for beachfront property owners to make any changes and overruling development plans approved by seaside cities and counties.

"It's an agency out of control. It's gone way beyond the Coastal Act," said attorney Edward Vaill, who represents the Malibu-based Californians for Local Coastal Planning. "There are horror stories about what they've done to private property rights along the coast."

Douglas said the panel must balance the intense pressure to develop the coast against its popular mandate of conservation and public access.

"Conflict comes with the territory," Douglas said. "The stakes are enormous for people who want to make profits, and they're enormous for a public that wants to protect the coast. There's this built-in conflict."

The commission has been sued hundreds of times by residents and developers unhappy about panel decisions, and the agency has prevailed in well over 90 percent of the cases, he said.

On Wednesday, the California Supreme Court considers a lawsuit filed in 1998 by the Marine Forests Society. It sued after the commission threatened to shut down its "artificial reef" – an underwater structure built from old tires, plastic tubes and nylon mesh aimed at restoring kelp forests about 300 yards offshore from Newport Beach.

French researcher Rudolphe Streichenberger, the society's founder, had permits from the city and the state Fish and Game Commission for the underwater experiment, and had been building the reef for several years when the commission issued its cease-and-desist order.

With the help of the Pacific Legal Foundation, the society sued, arguing that the panel lacked authority to block the reef because its makeup is unconstitutionally controlled by the Legislature – the Assembly speaker, the Senate Rules Committee chairman and governor each name four commissioners.

"We said we don't need a permit from you because you don't belong to the executive branch of government," Streichenberger said. "It's a very simple case of separation of powers."

A Sacramento judge agreed, and so did the 3rd District Court of Appeal. Now the state's highest court is weighing in, and groups on all sides have filed legal briefs aimed at swaying the justices.

The Marine Forests Society and its allies want the governor to appoint all or most of the commissioners and give local governments more authority over coastal development.

The justices also invited legal opinions on what to do about the past 29 years of commission decisions should the appointment process be found unconstitutional. The Pacific Legal Foundation acknowledges that reopening all past cases would create legal chaos, but says the court should allow case-by-case reviews. Already, at least 23 coastal property owners forced to create public access easements and other mitigation hope to cite a high court ruling to reverse those decisions.

Environmentalists say having the Assembly, Senate and governor each appoint four members helps ensure that no branch of government controls the commission. And since 2002, commissioners have been given fixed four-year terms, insulating them from the political pressure they faced when they could be removed at will.

"The appointment process and that balance is at the heart of the commission's integrity and their ability to withstand the intense lobbying for coastal development," said Mark Massara, the Sierra Club's director of coastal programs. "We are unwilling to give any one person in state government the ability to control and manipulate the process – The stakes are too high."

Coastal Commission ruled illegal
Agency violates 'separation of powers,' court says
- Lance Williams, Chronicle Staff Writer
Tuesday, December 31, 2002

A state appeals court ruled Monday that the California Coastal Act is unconstitutional because it wrongly gives state lawmakers the power to appoint -- and fire -- a majority of the commissioners who enforce development restrictions along the state's 1,100-mile coastline.

In a unanimous decision, a three-judge panel of the District Court of Appeal in Sacramento ruled that the act is legally flawed because it gives lawmakers too much power over decisions by the state's Coastal Commission, a 12-member board that controls building permits in the state's coastal zone.

The decision goes into effect in 30 days, state Attorney General Bill Lockyer said.

Unless the law that created the Coastal Commission is rewritten to pass constitutional muster -- or unless a higher court intervenes -- the decision will strip the commission of its power to issue development permits after that.

The task of regulating coastal development would then revert to local city councils and boards of supervisors.

The commission is an unusual land-use agency -- part big-picture planning board, part enforcer of complex zoning rules -- that regulates construction in a narrow, scenic strip of the California coast that extends from the foggy sands of Del Norte County in the north to the surfing beaches of Los Angeles and San Diego.

Voters created the commission 30 years ago out of concern that local governments lacked the will and the muscle to prevent the coast from being despoiled. It's composed of 12 commissioners -- four named by the governor, four by the speaker of the state Assembly and four by the state Senate Rules Committee. They can be replaced at any time by the officials who appointed them.

Because the state Legislature controls a majority of the commission, it in effect has power not only to write the state's coastal protection laws, but to enforce them as well, wrote Arthur Scotland, presiding judge of the 3rd District Court of Appeal.

And that, the court ruled, violates the constitutional doctrine of separation of powers, which holds that while the legislative branch is empowered to write laws, only the executive branch -- the governor's office, in this case -- can enforce them.

NONPROFIT FILED SUIT
The ruling came in a case brought by an Orange County nonprofit group that had been denied a permit for an ambitious artificial reef project off Newport Beach. The decision could mean big changes in the way coastal development is regulated along California's coastline.

Peter Douglas, the commission's executive director, said he believes it might be possible to satisfy the court's concerns simply by rewriting the law to give coastal commissioners fixed terms, stripping lawmakers of the power to fire them once they're in office.

But Douglas said the state needs time to pass the legislation to fix the problem.

"We have to figure out how to enable the commission to continue to carry out its mission," he said. "It would be chaos if this went into immediate effect."

He said the commission will decide next week whether to appeal to the state Supreme Court.

Ronald L. Zumbrun, the Sacramento lawyer who represented the nonprofit Marine Forests Society in the case, said more basic changes might be necessary to satisfy the court: Lawmakers could wind up with fewer commission appointments, and the governor's office could be given more control over the agency, he said.

Zumbrun predicted that the decision will force the commission to deal more fairly with property owners. In the past, he contended, the commission has forced some applicants to run a grueling bureaucratic gauntlet to get permits for such simple projects as the remodeling of a single cottage.

"I think you will end up with more consistency by the commission and more fairness in the treatment of property owners," he said.

"You will know what the rules are and you can abide by them accordingly, rather than not knowing what they are until you are before the Coastal Commission and are hung out to dry," he said.

For their part, environmentalists said they are worried that the decision might undercut the commission's efforts to protect the coast. But Sierra Club lawyer Mark Massara said many environmentalists have long supported fixed terms for commissioners to insulate them from political meddling.

Ellen Stern Harris, a Los Angeles environmentalist who co-authored the 1972 initiative, said the measure was deliberately crafted to share power between the governor and the Legislature.

"When you had somebody like (George) Deukmejian or (Pete) Wilson (as governor), who were out to starve the commission because they didn't like it, you had a countervailing force from the speaker or the Senate Rules Committee, and the commission could survive," she said

Appeals court says Coastal Commission violates state constitution

Appeals court ruling creates coastal disarray

The ruling does not take effect for 30 days. Coastal commission officials indicated that they are likely to appeal the decision to the California Supreme Court and seek an order that would keep the commission operating until the case could be reviewed.

Coastal Commission ruled illegal Agency violates 'separation of powers,' court says

The state commission that regulates development along the California coast should be stripped of most of its powers or have them turned back to local governments, a lawyer argued Wednesday before a three-judge appellate panel in Sacramento.

Ronald Zumbrun, a longtime critic of the California Coastal Commission who is challenging its constitutionality on behalf of a Newport Beach marine research organization, already won a favorable ruling in the case 19 months ago in Sacramento Superior Court.

The 12-member commission, one of the most powerful in state government, regulates hundreds of millions of dollars' worth of coastal development and has come under periodic attack for being susceptible to possible influence peddling from wealthy developers.

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