PLF on Coastal Horrors

City, Commission Force Homeowners to Pay Big for Right to Protect Their Properties

From today's San Diego Tribune: "Not long after Torgen Johnson moved into his ocean-view house on top of a coastal bluff at Pacific Avenue, a sudden landslide triggered by a rainstorm claimed a chunk of his property. . . .  Johnson is now building a 50-foot-long sea wall below his house to protect it from future slides."

Solana Beach and the Coastal Commission routinely force homeowners, like Mr. Johnson, to pay potentially hundreds of thousands of dollars for the right to protect their properties with sea walls.  The reason?  To mitigate against the alleged loss of sand and public beach resulting from the sea walls.

The Tribune reports that "Johnson believes he shouldn't have to pay any impact fees, saying he is making the beach safer for everyone by reducing the likelihood of landslides and falling rocks.  He said his sea wall will cost him at least $500,000.  'To tack a fee onto people building a multimillion-dollar sea wall to keep the bluff from collapsing onto the beach, I think it's completely wrong.' he said."

Cal Supremes Deny Review in Charles A. Pratt Construction v. CCC

Today, the California Supreme Court denied review and depublication of the Court of Appeal's opinion in Charles A. Pratt Construction v. CCC.  Justices Kennard and Baxter would have granted the petition for review.  PLF attorneys, on behalf of PLF and Home Builders Association of Northern California, filed an amicus brief supporting the petition.

The Court of Appeal's decision (162 Cal. App. 4th 1068 (2008)) ratifies the California Coastal Commission's authority to skirt the protections provided to developers under the Vesting Tentative Map Act and unilaterally to rewrite Local Coastal Programs that it long ago certified.  The published decision represents a blow to property rights.

Coastal Commission Stalls on Power Plant Proposal

The Ventura County Star today reports that California Coastal Commission has postponed a decision on whether to allow a proposed 45-megawatt peaker power plant at Mandalay Beach in Oxnard.  Among those who voiced their opposition to the much-needed power plant was -- not surprisingly -- Commissioner Sara Wan, who stated in typical authoritarian fashion:

"This area has miles of unbelievable coastal resources — beaches, dunes, wetlands ... we don't need another plant like this on the coast."

The latest example of an out-of-touch, arrogant bureaucrat deciding what people do and do not "need."

The Coastal Commission will take up consideration of the project at its October meeting in Ventura.

Starving the Beast: The Coastal Commission's Shrinking Budget

As reported in this Capitol Weekly story, the Coastal Commission is facing a major budget cut of 10% this year.  Projections are that the Commission will have to lay off 19 to 25 members of its 125-member staff.  The Commission's budget expert, Susan Hansch, says that the budget cuts "will devastate the Coastal Commission and critically impair implementation of the Coastal Act."

How will this impact coastal property owners?  Commission staff could continue its notorious practice of violating statutory deadlines in its review of projects, causing property owners to lose time and money in the permitting process.  Or staff could simply refocus its limited resources.  Here are just a few ideas:

(1) Even after a project is approved by a local government, the Coastal Act in many circumstances permits an appeal of that project to the Commission if a notice of appeal is filed either by an interested member of the public or by two Commissioners.  How are Commissioners able to track the many local approvals up and down the State?  They don't; staffers do.  Overly zealous staff members enjoy trolling about for "objectionable" projects, which they then bring to the attention of two Commissioners who sign off on the notice of appeal.  Staff and Commissioners should refrain from exercising the appeal power.  If a project is approved locally, and no member of the public is interested enough to appeal the approval to the Commission, the Commission need not get involved.

(2) Staff could scale back its enforcement efforts.  Most, if not all, enforcement actions that it takes are constitutionally suspect anyway, from a property rights perspective.  And many are just plain petty.  PLF's Gualala fireworks case is just one example of enforcement gone awry:  Staff persuaded the Commission to issue a cease-and-desist order to stop a 15-minute Fourth-of-July fireworks display, on the ground that a fireworks show is a "development" (and therefore within the Commission's jurisdiction) that disturbed some birds over a mile away. 

(3)  Staff could focus on big coastal projects, instead of wasting its resources on minor, negligible activities in the coastal zone.  Trying to stop a couple from repairing their beach fence -- to protect would-be bluff-climbers from serious injury or even death -- simply is not a wise expenditure of staff's limited resources.

Mt. Holyoke Homes: Fighting Back against Coastal Commission Permitting Delays

Perhaps highlighting the potency of our amicus brief in Mt. Holyoke Homes v. California Coastal Commission, the Coastal Commission filed its response.  Mt. Holyoke concerns a home owner's attempt to defend a coastal development permit (approved by the City of Los Angeles) against a disgruntled neighbor’s appeal. Although the facts and issues are complicated, the point addressed by PLF’s brief is whether the Coastal Act’s requirement that a decision on an appeal be made within 49 days of the appeal’s filing, really means that, or whether the Commission can argue that the permit applicant has "waived" the right to a timely decision by cooperating with the Commission after the decision period has run.

The Commission relies principally upon Bickel v. City of Piedmont, a 1997 California Supreme Court decision, to support its argument that a permit applicant can waive the time period in which an agency must act on an application, based upon conduct after the decision period has run. Not suprisingly, the Bickel case does not support the Commission. Bickel states, in relevant part:

As the concurring and dissenting justice of the Court of Appeal panel in this case observed, the commission's statements indicated that "the commission was saying it was prepared to deny the application outright but was offering to accommodate [plaintiffs] once more if that was their preference." Thus, when in response to the commission's inquiry whether plaintiffs would want another extension within which to submit revised plans, plaintiff Bickel said he did indeed want a continuance of the hearing, he voluntarily relinquished his right under the Act to have the commission render a decision on the merits at the November 9 hearing. But Bickel's statement was not a relinquishment of the right to have the commission approve or disapprove the application within the statutory time limit. The determination that the continuance should be for three months, after the time limits of the Act had expired, was made by the chairman of the Planning Commission, without any comment by plaintiffs. Thus, the facts of the November 9, 1992, hearing, standing alone, do not establish that plaintiffs waived the Act's time limitations. Also pertinent, however, are the events that occurred after the November 9 hearing. Plaintiffs, who concede that they are charged with knowledge of the Act's time limits, did not submit their revised plans to the Planning Commission for approval until after expiration of the time in which the commission had to indicate either approval or disapproval. When considered together, plaintiffs' conduct at and after the November 9, 1992, hearing provides substantial evidence to support the trial court's finding that plaintiffs waived their right under the Act to have the Planning Commission approve or disapprove their permit application within the statutory period.

(emphasis added). The italicized material indicates that what mattered to the Supreme Court was that the Bickel applicant wanted to improve his application by submitting additional plans; and in exchange for the ability to submit untimely application amendments, he had to give up his right to a timely permit decision. The crucial distinction, then, between Bickel and Mt. Holyoke is that, in the latter case, the permit applicants had won approval of their permit from the City, and thus only needed an automatic affirmance from the Coastal Commission. That affirmance would issue if the Commission could not act on the appeal within 49 days. The Mt. Holyoke applicants were perfectly happy to rest on their laurels; they needed nothing from the Commission. In contrast, the Bickel applicant’s only hope for a permit approval was (in an ironic twist of fate) a waiver.

In short, in circumstances where a coastal development permit applicant is fighting off an appeal to the permit, the Coastal Commission cannot establish waiver of the right to a timely decision on the appeal by conduct occuring after the appeal period has run.

Holding the Coastal Commission's Feet to the Fire

PLF's Coastal Land Rights Project is busy at work fighting against the California Coastal Commission's abuses.  Here are a couple of cases we are currently involved in:

Charles A. Pratt Construction Co., Inc. v. California Coastal Commission

On Friday, PLF attorneys and the Homebuilders Association of Northern California filed a letter brief in support of a petition for review in this case, currently pending before the California Supreme Court.

The petition asks the Court to review a published appellate decision (162 Cal. App. 4th 1068 (2008)) that raises important and unsettled questions of law concerning: (1) the authority of the California Coastal Commission to skirt the protections provided to property owners under the Vesting Tentative Map Act, (2) the Commission’s authority unilaterally to rewrite Local Coastal Programs that it long ago certified, and (3) the power of courts to slam the door on colorable regulatory takings claims. 

You can download PLF's letter brief here:  Download plf_brief_pratt.pdf.

Mt. Holyoke Homes, LP v. California Coastal Commission

In June, PLF attorneys filed an amicus brief in support of Mt. Holyoke Homes, and against the California Coastal Commission, in the Second District Court of Appeal of California. 

Once a local government issues a coastal development permit, the permit often is appealed either by an unhappy neighbor, an environmentalist, or two Commissioners.  Once an appeal is initiated, the Commission has 49 days to determine whether the appeal raises a "substantial issue"--i.e., whether the permit conflicts with the local government's Local Coastal Program (as certified by the Commission).  If there's a substantial issue, the permit goes to a full-blown hearing before the Commission. 

Obviously, the 49-day rule provides property owners with significant protections against long, drawn-out appeals by the Commission.  The appeal in this case will test the scope of the 49-day rule, and will consider whether property owners can actually waive the protection of that rule by cooperating with Commission staff in providing information and documents.  For more details, read PLF's brief here: Download plf_brief_mt_holyoke.pdf.

Birds of a Feather Flock Together: PETA Sends Framed Award and "Thank-You" Note to Coastal Commission

PETA (People for the Ethical Treatment of Animals) conferred an award on the California Coastal Commission for "saving baby birds from 'bombardment.'"  The award was prompted by the California Coastal Commission's recent decision to stop PLF's client--Gualala Festivals Committee--from displaying a fireworks show this past Fourth of July.

A PETA press release explains:

"To birds and other animals, Independence Day might seem more like War of the Worlds than a summertime celebration. Noisy Fourth of July fireworks are frightening to animals who don't realize that the explosions are entertainment, not danger. . . .  Thanks to the Commission's tough and compassionate stand, the seabirds off the coast of Gualala were spared what surely would have been a terrifying Fourth of July ordeal."

Make no mistake about it, folks:  Groups like PETA and the taxpayer-funded California Coastal Commission are pushing a frightening political agenda against human existence and development.  If they had their way, all Independence Day fireworks displays and much more would be banned across the country. 

Coastal Commission snuffs out this year's Gualala fireworks show

On June 11, the California Coastal Commission issued a cease-and-desist order against the Gualala Festivals Committee (GFC), a small group of citizens who volunteer their time and money to organize fun events for the small coastal town of Gualala, California--including a fireworks show for the Fourth of July.  The cease-and-desist prohibits the GFC from displaying fireworks unless it first asks permission of the Coastal Commission.  The Coastal Commission's basis for jurisdiction?  Obviously, an annual, 15-minute fireworks show is a "development" under the Coastal Act that requires a permit. 

The GFC -- and its lawyers, we at the Pacific Legal Foundation -- beg to differ.  If a fireworks show is "development," then any human activity within the coastal zone would be subject to the Coastal Commission's power.   This is not what the people of this great State intended.

Last week, PLF asked the trial court temporarily to stay the cease-and-desist order, so that this year's show -- which had been planned for months -- could go on.  The trial court refused.  On Tuesday, the court of appeal denied PLF's emergency petition, requesting the same provisional relief.  So this year's fireworks show in Gualala has been cancelled.

But the fight for liberty goes on.  PLF will litigate the merits of the Coastal Commission's power grab in the trial court.  Hopefully, a decision will issue sometime before next year's Independence Day show.  Stay tuned.

Cal Supremes reject opportunity to check Coastal Commission's power-grab

The California Supreme Court denied review in a case called Douda v. California Coastal Commission. In this case, the Doudas sued the California Coastal Commission, after the Commission denied their permit to build a house on property located in the Santa Monica Mountains.  Over Los Angeles's objections, the Coastal Commission unilaterally designated the Doudas' property as "Environmentally Sensitive Habitat Area," rendering the lot undevelopable.  The Coastal Commission also asserted that the Doudas' home would negatively impact coastal views.  Never mind the fact that the lot is five miles inland and has no visual connection whatsoever to the ocean or coastal areas. 

After the court of appeal sided with the Coastal Commission, the Doudas petitioned the supreme court to consider the scope of the state bureaucracy's powers.  PLF attorneys filed an amicus brief in support of the Doudas, urging the supreme court to take the case.  But the supreme court declined to do so.