November 11, 2008

A View To Die For?

By A View To Die For?

Pacific Legal Foundation goes to court nationwide against injustices by unelected regulators. But there is no agency that we have battled more consistently—and more successfully—than the California Coastal Commission, arguably the nation’s most relentless offender against property rights.

Our current litigation in support of Torrance, Calif., homeowner Martin Burke offers a microcosm of how the agency tramples rights. Burke wants to keep a fence on his land that saves lives; the Coastal Commission says it must go because, in the bureaucrats’ opinion, it spoils the view.

A little background: The Coastal Commission was created to address coastal land-use issues of statewide significance, while leaving most permitting decisions to local governments, and balancing property rights with environmental concerns. But the agency long ago abandoned these constraints; it routinely tries to micromanage private property and override local decisions.

It’s clear, for example, that local officials approved Martin Burke’s chain-link fence, both when it was first erected four decades ago and in later agreements. Stretching across the bottom of a bluff above the Pacific, the fence was put up for safety reasons: The land is unstable and two youths had died exploring the area.

In the 1970s, Torrance formally recognized the property owners’ permanent right to maintain the fence as a barrier against trespassers. In exchange, landowners gave the public an easement to use the sandy area at the toe of the bluff. The arrangement was eventually ratified by a signed agreement between landowners and the city, the State Lands Commission, the state attorney general, and the governor.

However, three years ago the Coastal Commission butted in and told Burke that the fence was illegal because the Commission never approved it. No permit would be issued, either, he was later told, because the fence detracted from the ocean view and deterred public use of the nearby sandy area. Never mind that the fence safeguards the public—and that people can use the sandy area only because landowners granted an easement in return for government permission to keep the fence!

Of course, the Commission’s blindness to precedent, property rights and common sense isn’t new. In particular, it has a troubling history of arbitrary aesthetic judgments and bogus beach-access claims. In PLF’s landmark 1987 case, Nollan v. California Coastal Commission, the U.S. Supreme Court rebuked the agency for an "out-and-out plan of extortion" after it ordered a couple to surrender beachfront land as the price to build a three bedroom home. The Commission had claimed the proposed home interfered with public beach access, but the court found this wasn’t true.

More recently, the Commission tried to stop construction of a home on the San Luis Obispo County coast, claiming it would interfere with views from the sea to land. Ruling for PLF, a court held there is no such thing as a "view from the ocean" justification for restricting land use.

In Burke’s case, now before a California appellate court, PLF is arguing that bureaucrats’ aesthetic whims can’t trump public safety, the right of landowners to exclude trespassers, and valid contracts between property owners and government officials.

As long as the Coastal Commission remains a rogue agency at odds with constitutional rights, it will be facing appointments in court with PLF.

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