Daily Journal: Challenge to Coastal Commission action may head to US high court

February 15, 2022 | By JAMES BURLING

This is the story of a California couple caught in the cross-hairs of environmental bureaucracy bent on revenge for the crime of standing up to the state’s attempt to help people fall off a cliff. The revenge has taken its toll: a fine of over $4 million imposed in a hearing with procedures that would make any tin-pot dictator proud.

In 1972, California voters passed a sweeping initiative that transferred control of coastal land use from elected local governments to the appointed members of the newly created California Coastal Commission. But it soon turned out that the mission of the commission wasn’t to control growth — but to stop it. As its long-term late former director Peter Douglas once bragged, the commission’s success was in the “things one cannot see … the subdivisions not approved.” But it wasn’t just subdivisions that the director opposed. It was everything from single-family homes to hotels and to the very foundations of capitalism — or, as Douglas described it: “dehumanizing, amoral corporate capitalism and imperialism.” What we needed, Douglas opined, was a “holistic cerebral vision therapy” to reorient human thinking from capitalism and consumerism to environmentalism. Put simply, the commission has been on a decades-long mission from Gaia, and it has not been shy in wielding its almost absolute power almost absolutely.

In its early days, prior to 1987, the commission had a nasty habit of demanding land easements in exchange for development permits. If it lacked the power to stop a project altogether, at least it could extract a pound of flesh in return. Keep in mind that under California law, a “development” requiring a permit could mean anything from putting up a small “No Trespassing” sign to building a giant hotel — and everything in between.

For instance, when Marilyn and Patrick Nollan sought to replace a ramshackle beach bungalow with a modest two-story home, the commission demanded that the Nollans give up one-third of their property for a public easement — despite a lack of showing that the new home caused any public harm. That’s where the U.S. Supreme Court stepped in and held in 1987 that the commission was engaged in an “out-and-out plan of extortion” and couldn’t take the Nollans’ land unless it could prove the new home caused an adverse public impact that could be cured by giving up the land. It couldn’t, and the Nollans got to keep their property. Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

That decision checked the commission’s worst permitting abuses. But it did nothing to address any extortions prior to the Nollan decision, and California law said it was too late to challenge them.

Now, in 2019, that same commission fined Warren and Henny Lent $4.185 million for allegedly violating the terms of one of those pre-1987 extortionate easements. The Lents’ alleged offense: maintaining a decades-old gate that prevented the public from falling off a dangerous 14-foot cliff.

Now the Lents are asking the U.S. Supreme Court to step in and impose some semblance of sanity to the commission’s power to impose fines.

When the Lents bought their three-bedroom Malibu home in 2002, there was a gate and an exterior stairway from the second floor to a wooden platform on top of a drainage culvert. So was an extortionate easement that had been taken from the prior owners in 1982.

Five years after buying their home, the Coastal Commission sent the Lents a “Notice of Coastal Act” violation, ordering the Lents to remove the gate and the stairs. For the next nine years, the Lents fought with the commission over whether the Lents should remove the gate and stairs — at least until something was done about the cliff.

While this was going on, the commission’s luck changed when in 2014 the California Legislature gave it authority to impose daily fines of $11,250 per day, unilaterally. Now, instead of going to court to enforce its order, the commission could simply hold a hearing and impose fines.

But such hearings are the stuff of Kafka. Hearings are not held before a neutral judge, but before the commission itself and prosecuted by commission staff. At their hearing, the Lents had no right to cross-examine commission witnesses; no power to demand testimony to be under oath; no ability to exclude hearsay and unreliable testimony; and no right to present rebuttal evidence. Thus, when the commission staff put on witnesses impugning the Lents’ motivations and misstating feasibility of the alleyway access the Lents could do nothing to respond.

At the close of the “hearing,” commission staff recommended a fine of $950,000. But the commission demanded even more. One commissioner urged a fine of $6.5 million, saying, “I want to … make it very clear to only the Lents, but all other people … that there are serious penalties.” Another said “we don’t want to be in a position … rewarding … applicants that have been fighting us.” Ultimately, the commission settled on a fine of $4.185 million, figuring that was about what the Lents’ oceanfront home was worth. After the fine was imposed, the Lents removed the stairs and the gate. The next day, the state put back up the gate — presumably to protect the public from the cliff.

The Lents appealed the fine but unsurprisingly got nowhere with the California courts. See Lent v. California Coastal Commission, 2021 DJDAR 3180 (April 5, 2021), as modified 2021 DJDAR 3574 (April 16, 2021). Now they are asking the U.S. Supreme Court to take up the case.

First, they are arguing that the kangaroo court hearing denied them basic rights of due process. As the Supreme Court said in a 1970 case, in “almost every setting where important questions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 (1970).

Second, the Lents argue that the fine violates the Eighth Amendment’s excessive fines clause. In a 2019 case dealing with a confiscation of an automobile used in a drug offense, the Supreme Court wrote that the purpose of the clause was “to limit the government’s power to punish.” Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (quoting Austin v. United States, 524 U.S. 602, 609 (1993)). The Lents’ fine was an exercise in raw power, designed to threaten anyone with the temerity to fight back. There was no pretense that the fine imposed on the Lents was related to any harm suffered by the public.

All the Lents did was prevent people from falling off the cliff in front of their home. And for that, California says they should lose their home.

This op-ed was originally published by Daily Journal on February 15, 2022.