The Orange County Register: Want due process? Don’t look to the California Coastal Commission

February 28, 2022 | By JOHN KERKHOFF
Coastal Property

At 76-years-old and now confined to a wheelchair, David Tibbitts has long dreamed of a much-deserved retirement in a home along the California coast. He had run a successful company with his wife, Stephanie, and after years of saving, they finally hoped to enjoy their Golden Years.

But that dream has turned into a nightmare — thanks to the California Coastal Commission.

Nearly three years ago, San Luis Obispo County approved plans for the Tibbittses to raze their existing 1,100-square-foot house and rebuild. That was badly needed. A stroke left David in a wheelchair, and he can no longer navigate the existing home’s tight floor plan and narrow confines. Stephanie, forced to move her husband around the property, suffered a hernia and torn meniscus. A new house would ease these burdens by including essential updates and handicap-accessible features.

Then, the Commission stepped in. Hoping to use the Tibbittses’ project as a precedent-setting case to expand its authority, two commissioners appealed the County’s permit. Commissioners argued that the Tibbittses must remove a small seawall protecting against erosion before any rebuild.

The Commission’s asserted authority would indeed be unprecedented. Both the home (1932) and sea wall (the early 1970s) were built before the Coastal Act took effect. So the Commission’s jurisdiction does not extend to the wall. Commission Staff has recognized the point, telling the Tibbittses that the case involves the “potential precedential nature of how to deal with demo/rebuilds with existing armoring structures.”

Those arguments would be sorted out in a formal hearing, which state law requires. The Commission itself does not dispute that the Tibbittses must be heard (the Commission’s appeal, by the way, is heard by commissioners; in other words, the Commission appeals to the Commission). But the commission has delayed that hearing for nearly three years.

So how can a 76-year-old wheelchair-bound man and his wife be forced to wait for three years to get a hearing required by law?

Commissioners’ answer is breathtaking. On their view, there “is no legal deadline for the Commission to act on the de novo phase of an appeal.” According to the Commission, the Tibbittses can be forced to wait another year — or three — and there’s nothing they can do about it.

The state and federal constitutions say otherwise. Both require that when state law provides for a hearing, it must come with due process of law, which means a timely hearing — not years of delay. Commissioners have trampled on that constitutional guarantee.

The Tibbittses did all they could to secure a hearing, but nothing worked. For more than a year now, they have been begging the Commission to hear their case and Commission staff responded with a parade of empty promises. The Tibbittses heard that the “best guess . . . is May or June” 2021.

But that became “June or July since this project is a priority.” Later, more of the same: “realistically” and “hopefully” during the October 2021 hearings. When October was off the table, staff moved the goalposts again, hoping “to bring this item to hearing by the end of the year.”

Week after week, month after month, the Tibbittses have waited. Nearly three years since the appeal was filed in April 2019 — the Commission has refused to say when it will decide the Tibbittses’ case.

So they decided to fight back with a lawsuit, represented by my firm, Pacific Legal Foundation. We are asking the state court to force the Commission to hold a hearing. Due process of law requires at least an opportunity to present your case. The Tibbittses may lose at the hearing, of course. But they are entitled to a respectful — and timely — hearing.
As astonishing as it is, the Tibbittses’ case is not unique. The Commission often struggles to comply with constitutional due-process commands. Indeed, the Commission imposed a $4.185 million fine against a couple because “we don’t want to be in a position . . . rewarding . . . applicants that have been fighting us.”

Fortunately, these disputes are easily fixable. The Commission simply needs to ensure that all applicants are afforded due process of law. And that is all that the Tibbittses ask.

This op-ed was originally published by The Orange County Register on February 28, 2022.