November 23, 2012

Be thankful that the Coastal Commission has only limited powers

By Jonathan Wood Attorney

Last week, PLF filed its amicus brief in Laguna Terrace Park, LLC. v. California Coastal Commission, a case challenging the latest broad assertion of power by the Coastal Commission.  The Coastal Act gives the Commission authority over “development” in the coastal zone.  The Act defines “development,” in part, as a “change in the density or intensity of use of land.”  The Act also gives examples of activities that could, but do not necessarily, change the density or intensity of use of land, such as subdividing land and other divisions of land.  In this case, a property owner is subdividing an existing mobile home park so that the lots on which the individual homes sit can be sold to the residents.  The actual use of the property will be unaffected; the only change will be on documents in the city planning office.

But the Commission asserts that it has authority over the property anyway.  As it interprets the statute, any division of land is a “development” regardless of whether it satisfies the standard required by the statute.  PLF’s brief argues that the Commission’s position ignores the plain language of the Coastal Act, which requires some actual effect on the resources of the Coastal zone in order for the Commission to have jurisdiction.

To understand just how bizarre the Commission’s interpretation of the statute is, consider how it would apply to the following sentence:

“Thanksgiving” is a holiday on which families gather to eat a meal and give thanks for their good fortune over the previous year, including, but not limited to, meals featuring turkey, ham, fish, or tofu.

Any reasonably literate person would recognize that the list of meals that could be served is there merely to give examples.  But the Coastal Commission—if its power turned on interpreting that sentence—would say that all meals featuring turkey, ham, fish, or tofu must necessarily be Thanksgiving.  The trial court agreed, failing to recognize the absurdity in the Commission’s argument.

It gets worse.  If the Coastal Commission is correct, its power would be unlimited.  As we explained in our brief:

The Commission argues that everything that follows “including, but not limited to,” is a per se development irrespective of whether it causes a change in the density or intensity of use of land.  But if this were correct, it would necessarily mean—if “not limited to” is to be given any effect—that there are some unknown number of other categories of per se developments that are not identified anywhere in the statute.  Furthermore, there is no principle by which the “not limited to” language can be limited because the Commission claims that the only relevant standard contained in the statute (“change in the density or intensity of use”) is irrelevant to the activities subject to the “including, but not limited to,” language. … But this result is plainly inconsistent with the notion that the Legislature has given the Commission only limited jurisdiction.

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