Lawyers to the starting line; Coastal Commission gets ready to litigate
One of the things about politics, even local land-use politics, is that there are many arenas in which battles are fought. Unfortunately, the courts, as the California Coastal Commission is now finding out, are just another venue in which campaigns are conducted.
Through months and months in the battle over the Malibu Local Coastal Program (LCP), the Coastal Commission acted as if it was the only game in town, as if its decision was going to be the final decision. Despite the political thrust by the City of Malibu and the County of Los Angeles to try and persuade Gov. Gray Davis, former Speaker Bob Hertzberg, current Speaker Herb Wesson and Senate Pro Tem John Burton to intervene and to get the Coastal Commission into a more reasonable posture, the commission just soldiered on, ignoring everything but its own inner compass. Malibu also went to our local reps Sen. Sheila Kuehl and Assemblymember Fran Pavley, but, altogether, most of the city’s lobbying efforts failed. The Malibu LCP was hard line, very unforgiving and, effectively, had very little serious consideration given to anything the city or county wanted. Chair Sara Wan, Executive Director Peter Douglas and the more extreme enviro supporters drew a pretty hard line in the sand and dared everyone to step over it.
Well, I’ve got news for them. Not only have people just stepped over the line, it’s beginning to look more like the Oklahoma land rush.
To date, as far as I know:
- The City of Malibu, represented by Jenkins and Hogin, has filed two separate and distinct lawsuits against the Coastal Commission. In the first, the city is asking the court to tell the Coastal Commission to continue issuing coastal permits so Malibu doesn’t end up with an unofficial moratorium while the main case makes its way through the court. The city feels its hands are bound by the voters who have come forward with a referendum to knock out the Malibu LCP, which the city intends to put onto the ballot.
- In the second suit, just filed last week, the city is making its major challenge to the Malibu LCP. The city charges that AB988 was unconstitutional and illegal, the Coastal Commission exceeded its authority, the state delegated, illegally, too much power to an appointed agency, and the LCP is excessive, unreasonable, unfair, unenforceable and, for good measure, just plain stupid. Mind, this is not the legal language, just the thrust of the challenge. And the interesting part of all this (and I say this only because lawyers tend to find confusion interesting) is that nobody, no matter how learned or smart, has any real idea how this is going to turn out. That’s just the city’s attack.
- The Land Use Preservation Defense Fund, represented by Stanley Lamport, who is a top-notch land-use litigator from Cox, Castle and Nicholson, is weighing in on behalf of all the inland mountain people who are also mounting a major challenge. In a just filed 31-page complaint, they have charged the Coastal Commission with the grossest overreaching, violation of the Coastal Act. Or, to put it another way, the Coastal Commission is following the parts of the Coastal Act it likes, and ignoring all the other parts it doesn’t like. It is putting all sorts of restrictions on land, horses and livestock, up to 5 miles inland, and declaring ESHAs (environmentally sensitive habitat areas) and ESHA buffers, all of which the defense fund charges is well beyond their statutory powers.
- If that wasn’t enough, I’ve heard of several individuals, and I’m sure this list is not all inclusive, who are litigating including:
– Brian Sweeney and a group of investors who are filing over the Sweetwater Mesa Road issue.
– Ocean Hills, a group that owns 50 acres or so of raw land near Tuna Canyon and PCH
– Dr. Jerry Cable who, owns some raw land above Encinal Canyon Road
– Buckingham Properties, which owns about 125 acres between Big Rock and Las Tunas Canyon
– Primrose Properties, which owns about 125 acres near Latigo Canyon and PCH
– Rick Appell, who owns a house in Ramirez Canyon, which has been placed into an ESHA along with some of his neighbors who will probably join in.
And many more we don’t know about yet.
- There is also another case called Marine Forrest vs. the Coastal Commission currently in the California Court of Appeals, which is challenging the entire legitimacy of the Coastal Commission. The Coastal Commission has already lost in the trial court, and if it loses in the Court of Appeals, it could mean the end of the Coastal Commission as we now know it.
Nevertheless, even in the face of all these challenges, the Coastal Commission rides, sublimely blind to everything but its own completely self-involved sense of its own mission. You can certainly admire its courage, even as you question its judgment because the commissioners are foolishly, to my mind, deciding to gamble it all rather than sit down and try and find some reasonable, livable compromise.