February 12, 2016

Commission Creep: Under rule of dysfunctional coastal agency, every act is illegal "development"

By J. David Breemer Senior Attorney

So this is where the California Coastal Commission experiment ends:  if you put a lock on a gate, paint a billboard, say mean things at a surf break, try to keep trespassers off your coastal land, or move a cow into a new pasture, you are engaging in unpermitted “development” and violating the Coastal Act. Ordinary people would assume that “development” means something involving significant building.  But the officials who run the Commission  march to a different tune, one that becomes more Hobbesian with each refrain, and so they consider almost any human activity as “development.”  Under this view, the Commission often asserts that property owners must obtain a state development permit before carrying out the most routine property activities, and it threatens hefty fines if such activities have already occurred without a permit.

Controversial policy is nothing new to the California Coastal Commission, of course. Since its inception in the early 1970’s, the state body has  been accused of heavy-handed and unlawful tactics in its quest to regulate the California coast, as this article relates. Certainly, the California Coastal Act gives the Commission some power by requiring property owners to seek and obtain a permit from the Commission before engaging in any “development.”  The original idea behind this grant of power was to halt or slow the Los Angelization of the California coast and thus, protect the coast from the environmental and public  beach access problems perceived to arise from rapid and relatively unregulated urban development.  Local coastal government  would continue dealing with smaller development issues that were generally not considered to be of state-wide importance.

It did not take long, however, for the Commission to accomplish its original anti-pollution, “no more LA’s” purpose.  Yet, the Commission stuck around even as its original job faded away. The result is a classic story of mission-creep: an agency searching farther and wider for problems to justify its existence, power and budget.

For the Commission, the creep began in the mid-to-late 1980’s with the increased regulation of smaller projects.  The Commission started to go after construction of single family homes (no matter what size), rather than major developments, then barns, and fences.  Then, it began micromanaging the details of construction; how high, how wide, what kind of building materials, plants, lighting, etc. It concocted new and burdensome conditions on building.  In the 1990’s, the Commission told local governments how to (more stringently) interpret  and apply their own building rules. It appealed more local government decisions to itself, forcing both property owners and local governments to go through an expensive and time-consuming state process to secure approval for minor, local activities.

Along the way, both state and federal courts rejected some of the Commission’s overreaching actions. But the general pattern became ingrained.   People — especially those at the Commission — got used to the idea that the Commission can and will require a state permit for any and all building on coastal land, however minor, as part of its mission to control “coastal development.”

This brings us to today and the third wave of Commission-creep: regulation of human activities that do not construct anything on land. A recent example comes from a Southern California surfing dispute. In the dispute, described here, the Commission is asserting that some local surfers’  attempts to verbally and physically deter other non-local surfers from using their surf break amounts to “development” and requires a coastal development permit. The Commission also claims that the locals’ little thatch and driftwood beach “fort” is “development” that cannot exist without a state permit.

The Commission grounds its aggressive position on a part of the Coastal Act that defines development as “any change in the intensity or density of land use.” Read in context, this provision was likely intended to make clear that preparations for major construction, such as subdivisions, are as subject to Commission oversight as the construction itself.  Certainly, there is no reason to believe the “change in intensity” provision means that every small alteration in the number of people or animals using coastal land or water qualifies as “development.” But this is exactly how the modern Commission construes the provision.

Using its expansive theory, the Commission decided a few years ago that moving cattle into a new field in Santa Barbara was “development” because it changed the intensity of use of the subject land.  Poor Ol’ Betsy.  Now she needs a coastal development permit to get to the grass on the other side. In Northern California, the Commission told a homeowner he was engaging in unpermitted coastal development by  telling strangers that a trail outside his property was not open at night.  In the Martins Beach dispute in Central California, the Surfrider Foundation claims in court– with Commission knowledge — that putting a lock and sign on an existing, permitted gate is illegal coastal development because such action halts prior trespassing and so, changes the intensity of land use.

There is no apparent stopping point to this theory. Hiring a live-in gardener, nanny or maid may now be coastal development. After all, this adds people to the land and changes the intensity of its use. Planting a garden might itself have that effect. How about putting a couple of horses on the land? Probably changes the use just as much as a  cow.

With its convoluted interpretation of “coastal development” in hand, the Commission can now control, stop or fine almost any movement on the coast.  Indeed, its broad interpretation of “development”  as any change in use of land likely covers every parcel on the coast.  It bears remembering that, once a person engages in any “development” without a permit, the Commission has authority to impose thousands of dollars in fines per day. That the Commission cannot currently go after everyone is no solace. The agency always wants more state funds for increased enforcement activities and it is likely to get it at some point. In the meantime, the broad sweep of Commission “development” policy allows it to pick and choose politically disfavored or deep-pocket property owners for  Coastal Act enforcement.

The Commission had to find more to regulate to justify its existence and budget, and it has done so.   Unfortunately, there is nowhere left to go.  By deciding that any change in land use is coastal development, the Commission has totally occupied the field. Every coastal property is at risk. All that is left for the Commission to do is send out the inspectors to find the changes in coastal land use and then mail the  letters notifying the property owners of their unwitting Coastal Act violation — and their fines.

This is wrong, unnecessary and wasteful. Property owners should not need a state development permit simply to exist on their land and to carry out normal activities, like having guests or stopping trespassing. And the idea that speech can require a development permit likely violates the First Amendment. As for the rest, local governments are fully capable of identifying, monitoring and (if needed) permitting real, but minor, development.  In taking over this responsibility, the Commission has gobbled power it was never meant to have and which it does not need.

It is time for serious reform.  While the current push to change the Director of the Commission might be a start (an issue on which PLF takes no position ), much deeper changes in policy and culture are needed. The Commission needs to re-focus on truly state-wide problems or take a “mission accomplished” victory lap and disband. But either way, it should take care not to act in the coastal zone. After all, doing so might be a change in land use that amounts to illegal coastal “development.”

 

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Surfrider Foundation v. Martins Beach 1, LLC

When a beachfront property owner discontinued his practice of allowing beachgoers to park on his land for a fee, disgruntled beachgoers sued the owner to establish their “right” to trespass on the owner’s land. They based their claim on the “public trust” doctrine, which gives the state title to waters and the land beneath. It does not extend to dry beach land. The state trial court rejected the beachgoer’s proposed expansion of the doctrine and the beachgoers appealed. PLF represents the California Farm Bureau and California Cattlemen’s Association as amicus to support the owner’s constitutional right to exclude trespassers from the dry sand areas of his property.

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