Author: Luke A. Wake
Yesterday I attended the California Coastal Commission's meeting in Marina Del Ray as part of our Coastal Land Rights Project's mission to monitor the Commission's activities. The Commission spent almost an entire day debating six permits, which Commission staff viewed as one project. The meeting was very contentious.
The six applications were submitted by separate landowners. They wanted to build their dream homes near the top of a mountain over Malibu, but the Commission staff vigorously opposed the project. Peter Douglas referred to it as the most environmentally disastrous project he had seen in his entire time with the Commission.
But, the homes were designed to be as green as possible, and the applicants had worked with the Commission every step of the way. They modified their plans over and over, and at great cost to make the homes as environmentally sensitive as possible. The homes were going to be LEED certified, which means they would be built with the most advanced technology to ensure that they would be green. But, evidently that isn't green enough for the Coastal Commission.
The Commission has designated the entire mountainside as an environmentally sensitive area, and they would ordinarily deny all use of such land. But, the Coastal Act contains a provision, which requires that they must approve a permit application if denial would result in a taking. Accordingly, several of the Commissioners lamented saying that they wished they could prevent all new development in the coastal zone, but that takings law will not allow that.
But the question is how much must they allow? Takings law is very clear that they must allow some economically beneficial use of a parcel of property, but the Commission wants to allow as little as possible. So Commission staff devised a novel theory: Instead of treating each different parcel as separate, the Commission staff decided to view five different parcels as one. This would conceivably allow the Commission allow only one house for all five of the separate landowners.
Surprisingly, some of the Commissioners rejected the staff's theory, and said that they supported the permit applicants. Commissioner Burke referred to the staff's theory as "vegetable soup," and went on to say, "I don't see how we can, with good conscience, deny these people the right to build a house." Commissioner McClure referred to the staff's theory as "an extremely slippery slope," and ultimately four of the Commissioners decided to "back up the side of property rights." Maybe this is a sign that PLF's message is being heard by some on the Commission.
But, the large majority of the Commissioners still opposed the permits. Prior to the vote, two permits were withdrawn at the last moment, but the remainder were denied (8-4). We will keep you updated on develops if this denial results in litigation.