After the fires: Rebuilding effort must start with protecting property rights
It’s been four weeks since deadly fires ripped through the coastal Los Angeles community of Pacific Palisades and through Altadena at the base of the San Gabriel Mountains. Schools, businesses, and social gathering places were devastated by the flames. Entire neighborhoods of family homes were wiped off the map.
As shown time and time again, Americans are resilient in the face of disaster. Many homeowners—if not the vast majority—will choose to rebuild their lives, their homes, and their communities. As they do, local and state governments must clear the path forward, rather than create additional obstacles.
Although Gov. Gavin Newsom and local governments have enacted emergency orders to expedite rebuilding by removing regulatory “red tape,” property owners are still likely to face headwinds with a plethora of bureaucratic agencies that oversee use and development of private property in the Golden State.
One such agency is the California Coastal Commission, the notoriously powerful land use agency that can appeal building permits to itself after local approval—essentially giving itself veto power over use and development of private property in California’s 1.5 million acres of coastal land. Pacific Legal Foundation has faced the Commission in court more than 100 times over the years, racking up numerous victories for coastal property owners.
Although Gov. Newsom issued an executive order suspending the Coastal Act’s impossibly stringent and time-consuming requirements to allow fire victims to rebuild without the Coastal Commission’s usual interference and delays, the Commission nonetheless tried to insert itself back into the rebuilding process. Newsom had to issue a second order making it explicitly clear that rebuilding will not require authorization from the Commission.
It’s likely the Commission will attempt to block rebuilding in other ways. Thankfully, PLF is already involved in two cases that may be relevant for victims of the LA fires.
Coastal development permitting
The first case is Shear v. California Coastal Commission, which is now before the California Supreme Court. In that case, PLF’s client applied for building permits for four houses in San Luis Obispo County.
Under the County’s Local Coastal Plan, San Luis Obispo County has the primary authority to approve use and development of private property. In Shear, the County issued permits approving the construction of badly needed housing. But the Coastal Commission had other ideas. Two commissioners “appealed” the County’s decision to issue permits to the Commission. That’s right: The Commission effectively appealed to itself.
Over the years, the Commission reinterpreted the limited power granted to it under the Coastal Act to seize for itself more and more authority. In the Shear case, for example, the Commission appealed the County’s grant of a permit to itself, and then, unsurprisingly, denied the permits, effectively acting as prosecutor, judge, and executioner. This not only trampled on Shear’s rights, but it usurped the County’s authority, upending the local regulatory authority which the Coastal Acts delegates to local governments. PLF recently published a report that details how common this practice is at the Coastal Commission.
If the California Supreme Court reels in the Commission as PLF argues, property owners in LA’s burn areas—and up and down the coast—will be protected from arbitrary and unlawful permit denials.
Protective seawalls
In another case, a group of condo owners, with PLF’s help, is asking the California Supreme Court to allow them to build a seawall to protect their homes from being damaged by waves and eventually falling into the ocean.
Although the Coastal Act explicitly requires the Commission to issue seawall permits to protect “existing structures, such as the condos in this case, the Commission has recently changed its position on what constitutes an “existing” structure. Instead of the common sense reading that “existing” means a structure that exists when the owner needs a seawall, the Commission argues that the term “existing” means a structure that existed in 1977 when the Coastal Act was adopted into law.
The Commission’s message to coastal property owners? You don’t have a right to protect your house from falling into the sea.
If the Commission’s interpretation is allowed to stand, every homeowner whose house was built after 1977 could lose their ability to repair or reconstruct seawalls. Even if property owners in the fire areas are able to rebuild their homes, the Commission would be able to keep them from protecting those homes with seawalls. PLF will file an amicus letter next month urging the court to hear the case.
Safeguarding property rights from new attacks
As we saw during the COVID-19 pandemic, the government’s power to respond to an emergency can unconstitutionally tread on individuals’ rights. Now that LA property owners deal with yet another emergency, PLF anticipates that the state and local governments will not be able to resist an overly aggressive use of these emergency powers to hinder—rather than help—the rebuilding efforts.
For example, just last week, the Los Angeles Board of Supervisors, claiming that it would help speed up reconstruction in the fire zones, passed a resolution urging the California Legislature to repeal already-existing “fast-track” statutory procedures that simplify and streamline the building of housing statewide. Without any hint of irony, the Board wants to make it harder, cost more, and take longer to build housing in the disaster zones. .
PLF is monitoring actions like these and will bring litigation to defend property owners’ rights and their ability to use and build on their own private property without unreasonable and overly burdensome government interference. In particular, we’re looking at permit denials by the Coastal Commission, new rent control or vacancy controls, changes to zoning rules that would prevent rebuilding, and inverse condemnation claims (such as redesignating residential lots as “open space”).
While the road ahead for those affected by the fires remains uncertain, allowing property owners to productively use their property will be key to rebuilding, and PLF will be ready to defend their rights to do just that.
