July 15, 2013

Coastal Commission given practical veto over local government's efforts to control crime

By Jonathan Wood Attorney

A recent decision from the Third District Court of Appeals gives the California Coastal Commission the power to interfere with local government efforts to engage in environmental clean-up and prevent crime.

Concerned about an increase in crime, the City of Dana Point restricted late-night access to trails connecting a public park to the beach, passing among private homes. It also installed gates to prevent unlawful access. When the Coastal Commission learned of these restrictions, it asserted jurisdiction, contending that the installation and access restrictions require a coastal development permit. The City sued the Commission to prevent it from interfering. The basis for that challenge is a provision of the Coastal Act which states that the Commission may not impose any “limitation” on the power of a local government “to declare, prohibit, and abate public nuisances.”

Readers may recall that PLF was involved in a similar suit regarding the meaning of this provision. We represented the Citizens for a Better Eureka in their efforts to keep the Commission from frustrating the clean up of a contaminated brownfield site. Unfortunately, the Court of Appeals construed the provision very narrowly in that case, placing the onus on the local government to prove that a nuisance exists and that its abatement efforts go no further than is absolutely necessary to correct the nuisance.

Regrettably, the Court of Appeal adopted the same rule in the City of Dana Point’s case. As the dissent explains, this decision reworks the separation of powers that the legislature intended to exist between the Commission and local governments.

Although [the Coastal Act] expressly and without limitation preserves the traditional police power of municipalities over nuisances, the majority’s opinion substantially impairs that power. The impairment arises out of the majority’s holding that as a condition of obtaining the protection expressly provided by [the Coastal Act], the City must show that its ordinance is valid and not pretextual. Nothing on the face of the Coastal Act places such a burden on a municipality, and important principles of municipal and constitutional law suggest that any burden with respect to the validity of a municipal nuisance ordinance rests with the Commission, not the municipality.

Because the burden is placed on the local government rather than the Commission, a local government will, as a practical matter, have to either seek the Commission’s approval before exercising its power to abate nuisances or steel itself to a lengthy and expensive court battle. Given that dilemma, most local governments will have to submit to the Commission. This result is plainly inconsistent with the Coastal Act’s prohibition against imposing limits on local government efforts to abate nuisances. The real pain of this decision will be felt by local residents, who will have to live with the burdens of toxic sites or criminal activity while local governments seek permission from the Commission to address these problems.

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