By Michael Travis
Editor in Chief
The controversial California Coastal Commission may have finally been placed in legal checkmate after a long game of political power chess with its often-disgruntled opponents, the property owners and cities along the state’s coastline.
On Dec. 30, a state Court of Appeals found the commission in violation of the separation of powers doctrine in the California state constitution, striking a would-be deathblow to the powerful governing body.
“This will reestablish the normal checks and balances that apply to all agencies, and we feel that the problems that have been experienced at the commission will be dramatically reduced,” Ronald Zumbrun, the attorney who argued against the Coastal Commission, told the Los Angeles Times.
The agency was created in 1972 through a voting initiative to protect ecosystems and regulate development along the California coastline.
It essentially holds the keys to required permits that are vital for any kind of development in coastal zones, which were outlined in the 1976 California Coastal Act. These zones extend throughout the California coast, ranging from a few hundred feet to five miles inland.
In recent years, friction has increased between the commission and those subject to its authority, due to increasing demand to develop and the commission’s moves to increase its control over that development.
Evidence of this growing control revealed itself in the agency’s requirement that every city in its jurisdiction create a Local Coastal Program — a comprehensive document that outlined every policy regulating a city’s use of land — in accordance with the Coastal Act and recommendations from the commission.
These LCPs controlled everything from the way construction was handled to where houses could be built, sometimes regulating types of plants that could be grown in certain areas.
Every city was given a deadline to have this document created by, and non-compliance left the city facing fines and other penalties.
This requirement caused a considerable amount of controversy in areas where ideas about the use of land differed between the commission and local municipalities.
The result was hundreds of lawsuits from the local governments and individual residents in those areas.
Nowhere was this battle more intense and publicized than the city of Malibu.
The city attempted twice to submit its own plan, but the Coastal Commission rejected the proposals each time.
Eventually the commission designed and ratified an LCP for Malibu Sept. 12, despite protests from its residents.
In October, the citizens of Malibu collected more than 1,000 signatures supporting a referendum that suspended the LCP from taking effect.
The commission continues to dispute the legality of the referendum, and the case is currently in court.
As it turns out, Malibu was indirectly involved in the case that finally broke the commission.
The lawsuit began with the Marine Forests Society, an organization that, according to its Web site, works to “discover techniques and economics facilitating the creation of large scale marine forests where seaweed and shellfish growing on sandy bottoms will replace the lost marine habitats.”
The MFS had been using unusual materials to achieve its goal, including used tires. It had been dropping them in the ocean around Newport Beach to increase fishing grounds from 1993 to 1999.
The commission eventually issued a cease-and-desist order in 1999. The MFS filed its lawsuit in 2000, alleging that the agency violated the separation of powers clause in the California state constitution because two-thirds of its members were appointed “at will” by the state legislature but the agency itself was part of the executive branch of the government.
A superior court judge agreed with the argument in April 2001, holding that the state legislature had too much control over a judicial body that was part of another branch of the government, eroding California’s system of checks and balances.
The commission appealed the decision and the case moved to a state Court of Appeals. For this case, the city of Malibu submitted an amicus curae — a legal brief of points — in support of the MFS arguments.
Finally, on Dec. 30, the state Court of Appeals affirmed the ruling of the superior court, handing the MFS another victory and placing the Coastal Commission in jeopardy.
“Our position is that under the law, the justices made an incorrect decision,” Commission Chairman Mike Reilly told the Los Angeles Times.
The ruling effectively reduces the power of the state governing body considerably — under the new guidelines it can only make rules in accordance with the California State Coastal Act.
Previously it had the power to adopt regulations, review and issue construction permits, and to enforce its own regulations as well as state law.
The agency has asked the judges of the appeals court to reconsider their decision — something that is unlikely since the court opinion was worded so strongly.
If the appeals court does not change its decision than the commission will appeal its case to the state Supreme Court.
In the meantime, nothing will change. Since the commission appealed the decisions against it, the orders of the lower courts are suspended until a final outcome in the case is reached, which may take several years.
January 16, 2003