September 6, 2018

Agencies must explain their decisions

By Jeffrey W. McCoy Attorney

Today, we filed the latest brief in Mark and Bella Greene’s ongoing litigation against the California Coastal Commission. The Greenes are a retired couple who wish to remodel their house in Playa Del Rey, Los Angeles. Even though the Greenes’ plans were consistent with local and state laws, the Commission told them that they had to scrap their plans and build a smaller house.

The Commission staff listed a couple reasons for requiring the Greenes to build further back from their property line than allowed by local zoning ordinances. The staff felt that the Greenes’ home, which is in the middle of a block, would prevent the public from accessing the ocean nearly 600 feet away. The staff was also concerned that the Greenes’ home would be at risk from flooding from wave uprush. The Commission adopted the staff’s recommendation, but the Commissioners were not clear about why they adopted those recommendations.

Instead, individual Commissioners cited different, and sometimes contradictory, reasons for its decision. Many Commissioners cited concerns about sea level rise and flooding in support of the requirement to build a smaller home. Yet, the Greenes submitted a report from expert engineering geologists that concluded that, based on the Commission’s expectations on sea level rise, that the mean high tide line would only increase 150 feet over the next 75 years.

The Greenes sued the Commission, because all of the Commissioner’s stated justifications were unreasonable and not supported by evidence. Unfortunately, last month a Los Angeles Superior Court judge disagreed with the Greenes that all of the stated justifications were unreasonable. However, the judge agreed that the expert report demonstrated that the Commission could not justify the restrictions on the Greenes’ property because of concerns with sea level rise.

Because of the ambiguous nature of the Commission’s proceedings, the judge was unable to determine the underlying justification for the Commission’s decision. In the latest brief, we argue that this ambiguity requires the judge to send the case back to the Commission. At a new hearing, the Commission must reconsider the Greenes’ remodel plan and decide whether the evidence justifies a requirement that the Greenes alter their plans.

Courts often defer to agencies’ justifications for their actions. In response, agencies often list multiple, inconsistent, and vague reasons for adopting a decision in the hopes of getting their decisions approved by a court. But this practice deprives courts from the ability to effectively review the agencies’ decisions, and deprives regulated individuals of fair and meaningful review of their decisions.

The Commission cannot prevent the Greenes from exercising their property rights without a clear explanation why it thinks it is necessary to do so. Similarly, the Commission cannot justify its decisions on unjustified concerns that are not supported by evidence. We hope that the judge will send the case back to the Commission, and that the Commission will allow the Greenes to begin their retirement in their dream home.

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Greene v. California Coastal Commission

Mark and Bella Greene challenge the California Coastal Commission’s decision to impose two conditions on the approval of a development permit to update and expand their home in Los Angeles. The first condition requires the Greenes to have a five-foot setback from their seaward property line, in conflict with Los Angeles zoning ordinances and the City-approved development permit. The second condition requires the Greenes to waive their constitutional and statutory rights to protect their home from storms and erosion by constructing a seawall. PLF represents the Greenes in a lawsuit challenging these unconstitutional conditions.

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