What property rights: the California Coastal Commission's history of abusing land rights and some thoughts on the underlying causes.

• Author: Breemer, J. David

I.

INTRODUCTION

When California enacted the California Coastal Act of 1976 (Act), (2) and created the California Coastal Commission (Commission) to implement the policies of that Act, it attempted to ensure a balanced approach toward future development along the coast. In particular, the Act empowered the Commission to weigh environmentally-minded conservation goals against economic needs and private property rights in determining how development should proceed. (3) Portions of the Act specifically preclude the Commission from applying the Act in a manner that offends constitutional protections for private property. (4)

After twenty-five years, it is fair to say that the Commission is more attentive today to claims of property rights, at least in some circumstances, than it was in the years immediately following its creation. Nevertheless, for many observers, the Commission's incremental progress hardly achieves the balance between private and public rights contemplated by the Coastal Act and United States Constitution. Indeed, in the last few years, the Commission has been described in the following terms: "categorically refuses to recognize the validity of an individual homeowner's property rights;" (5) "a perfect example of well-meaning liberalism gone terribly awry;" (6) "a rogue organization less interested in matters of general interest than in micromanaging such details as the color of people's homes, what they can plant in their gardens and whether they should be allowed to fence wild animals away from the yards where their children play;" (7) "the poster child for government power run amok--but because everything the commission does is supposedly to protect the environment, hardly anybody questions it;" (8) "established ... to help local governments adopt local coastal plans. Instead, it pulled a Saddam, investing itself with dictatorial powers over every last grain of the state's 1.5 million acres of coastal property--public and private;" (9) "If one's goal is to slow development at all costs--even if it means undermining private property rights ... then one would be aghast at a monumental court decision this week that says the California Coastal Commission is unconstitutional. Everyone else should be elated." (10)

A review of the extensive body of case law involving the Commission and publicly reported accounts of the Commission's actions tends to support the foregoing complaints, at least to the extent they suggest that the Commission has insufficient respect for private rights in land. As described in this article, such a review indicates that, much of the time, the Commission operates by neglect at best, and contempt at worst, when it comes to private property rights. Lack of appreciation for individual property rights can be found in all of the Commission's activities; one can see it in the denial of carefully-planned development projects along the coast, imposition of severe conditions on approved projects, strict enforcement of a strict reading the Coastal Act, and in the Commission's interpretation of the scope of its own jurisdiction and the procedural protections afforded coastal development applicants. (11)

This article documents the Commission's response to claims of private land rights, whether that response is manifested in substantive or procedural applications of the Commission's power, and surveys the judicial conflicts which result. Upon coming to the conclusion that individual property interests rank low on the Commission's priority list, the article attempts to explain the reasons for a de facto policy treating private land use as a privilege subject to the Commission's control, rather than as constitutionally protected right. Part II of this article reviews the purposes of the Coastal Act and the role of the Commission in implementing the Act, with special emphasis on the Commission's power over activities on private land. Part III surveys selected case law and press accounts documenting the Commission's actions, and summarizes instances in which the Commission appears to have given insufficient respect to private rights. Part IV seeks and finds explanations for the Commission's dim view of property rights in the California Supreme Court's refusal to hold land use regulators to constitutional limitations, the Commission's leadership, and the influence of well-funded special interest pressure groups that seek to restrict or prevent private land use along the coast. The article concludes that, if the Coastal Act, including its environmental objectives, is to be successfully and properly implemented, the Coastal Commission must overcome its own biases and finally accept private property as a necessary and beneficial institution.

II.

THE CALIFORNIA COASTAL COMMISSION'S ROLE UNDER THE COASTAL ACT OF 1976

In 1972, the United States enacted the Coastal Zone Management Act, a body of law designed to coax coastal states to enact their own comprehensive laws regarding the management of development along coastlines. Responding to passage of the federal act, and the California Legislature's previous unwillingness to pass a state counterpart, a majority of Californians passed Proposition 20 in November of 1972, an initiative otherwise known as the California Coastal Zone Conservation Act of 1972. (12) This law created a new state entity, the California Coastal Commission, and six regional coastal boards, and empowered them to review coastal development proposals. (13) The 1972 act also commanded the state Commission to develop a comprehensive coastal development plan, to be submitted to the state legislature by December 1, 1975. (14) The California Coastal Act of 1976 arose from the recommendations suggested by the Commission in that plan. (15) Upon passage in 1977, the 1976 Act became the sole authority for the Commission's continued role as manager of coastal land use planning and as final administrative authority over coastal development.

The basic objectives of the Coastal Act are found in a series of legislative findings and declarations that introduce the Act. (16) In general, these findings reflect the Legislature's intention to create a centralized system for reviewing and approving coastal development, guided by the desire to further environmental, (17) recreational, (18) and economic progress. (19) While many findings and declarations emphasize the need to protect natural resources along the coast, others recognize that some development is necessary and desirable (20) and that the drive to advance public interests along the coast cannot be used as a pretext to run roughshod over private property owners. (21)

To implement and manage the balanced policies of the Act, the Legislature created a central Coastal Commission (22) and gave it broad powers. (23) With regard to the use of private property, the most significant substantive power is the right to grant, or condition, final approval of developments proposed to occur within the "coastal zone." (24) This zone is "generally" defined to extend inland 1000 yards from the "mean high tide of the sea." (25) In "significant coastal estuarine, habitat, and recreational areas, the zone extends inland to the "first major ridgeline paralleling the sea or five miles from the mean high tideline, whichever is less." (26) In preparing detailed maps of the coastal zone to be incorporated as part of the Act, the Commission has authority to adjust the inland line of the coastal zone up to 100 yards. (27) In certain geographical areas, the Act itself painstakingly details the extent of the coastal zone. (28) For purposes of appeals to the Commission, the jurisdiction-conferring coastal zone shrinks to the areas "between the sea and the first public road paralleling the sea or within 300 feet of the inland of any beach or the mean high tideline of the sea where there is no beach, whichever is greater." (29)

When development--broadly defined to include "the placement or movement of any solid material, discharge of any material or change in density or intensity of land or water use, including the subdivision of land" (30)--is set to occur in the coastal zone, the Act originally granted the Commission the power to rule, as an initial matter, on its permissibility. (31) However, the Act provided for a gradual delegation of the initial permitting power to local coastal governments. (32) In particular, recognizing the need for "responsiveness to local conditions, accountability, and public accessibility," (33) the Act requires local coastal governments to create a local coastal program (LCP), including a land use plan designed to reflect the polices of the Act. (34) Upon the Commission's certification that an LCP conforms to the Act, the local plan goes into effect, and coastal development permit applicants must then initially seek approval from relevant local planning agencies, except in areas where the Commission retains its original jurisdiction. (35)

Until an LCP is in place, most coastal development applicants must seek a permit directly from the Commission. (36) But they may also have to obtain an additional permit from the local government, since the Act grants localities the option of implementing interim permitting procedures prior to certification of its LCP. (37) Even after an LCP goes into effect, the Commission has, in many instances, final approval authority over all coastal development. This authority arises from the fact that the Act allows members of the Commission, as well as any "aggrieved person," (38) to appeal a local development decision directly to the Commission. (39) If the Commission agrees that such an appeal raises a "substantial issue" as to whether the project conforms to the LCP, or the Act's "public access policies," the Commission will hold a hearing addressing the project and, soon after, make a decision without deference to the local government's own conclusions. (40)

Assuming it has jurisdiction over a...