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From the editor: This page is dedicated to the Public Forum, where we publish opinions on public and social issues that affect the Malibu community and our readers at large.

Insights into LCP struggle

The City of Malibu went to court specifically to defend the right of residents to vote on the Local Coastal Program (LCP) adopted by the Coastal Commission. Those who followed this litigation are acutely aware that the city was fighting for much more; the city was fighting for the constitutional right of every citizen to approve local laws that affect their everyday lives.

The Coastal Act requires all coastal cities and counties to adopt their own LCP. A city-appointed citizen committee worked for over six years to complete a draft of the city’s LCP, but by the summer of 2000, the city had not adopted its own LCP. Malibu was not the last or the slowest in this endeavor. Numerous coastal cities and counties, all of which incorporated long before Malibu, still do not have certified LCPs. The County of Los Angeles has yet to have its LCP certified.

Nevertheless, for reasons that are a matter of some dispute, the State Legislature chose to single out Malibu and usurp local control by creating a special law authorizing the Coastal Commission to adopt an LCP for Malibu. A “special law” is a law that does not apply equally to everyone in the same situation; the constitution forbids a special law when a general law is possible.

Feeling disenfranchised, nearly one third of Malibu’s registered voters presented a citizen petition demanding their right to vote on the Coastal Commission’s LCP. Ordinarily, an LCP would be subject to referendum. However, this situation presented a novel question of law. The LCP was applicable only in Malibu, so had the Coastal Commission adopted a local law? Or not?

The California Supreme Court has held that city officials may not refuse to put a referendum to the voters. If the validity of the referendum is in doubt, the courts must determine whether to hold the referendum election. Accordingly, the City filed its lawsuit, seeking the court’s guidance. The Coastal Commission filed a counter suit asserting that the city was in violation of the Coastal Act by not implementing the Coastal Commission’s LCP for Malibu.

The two central concerns in the lawsuit were whether Malibu residents could subject the LCP to referendum and whether the legislature may use a special law to limit the powers of just one city. The underlying tension was one of broader concern. State agencies, seeking to advance state policy, often labor under statutes that rely on local government involvement. Examples include affordable housing, traffic congestion management, waste management and recycling. Local governments are accountable to local constituents. As a result they enjoy the legitimacy that comes with democratic elections. State agencies, attempting to enforce these single-issue statutes as they see fit, are often frustrated by the slowness and complications of democracy. With the special law for Malibu, the state introduced a strategy of circumventing democratic participation on a case-by-case, city-by-city basis.

Malibu was far from alone in its alarm over the legislature’s willingness to use a special law to transfer the constitutional powers of one city to a state administrative agency. The League of California Cities, representing 478 California cities, filed a brief with the court supporting Malibu’s position.

The Coastal Commission used AB988 to adopt a no-holds barred LCP. The Coastal Commission’s LCP for Malibu consists of two components: 423 policies in the Land Use Plan and an additional 319 pages of “ordinances” in the Local Implementation Plan. In devising these many policies and rules, the Coastal Commission took from Malibu what the Coastal Act leaves to all other local governments, the right to choose specific land use policy. Moreover, the Coastal Commission strayed far from its mission of protecting resources and increasing beach access.

We know from civics class that tyranny results when the powers to make, interpret and enforce the law all reside in one body; and the more removed that body is from the control of the People, the more it becomes a threat to liberty. Hence, our constitution separates these powers and allocates them among three branches of government. The Coastal Commission is an appointed, not elected, body charged with enforcing the Coastal Act, not adopting laws. Malibu’s lawsuit questioned whether AB988 delegated too much local lawmaking authority to this state administrative body.

We also know that the founding fathers of American democracy were cynics. Therefore, they devised a system that guarded against the commingling of powers to make it resistant to human frailties. As James Madison noted, “It will not be denied, that power is of an encroaching nature, and that it ought to be effectively restrained from passing the limits assigned to it.” (The Federalist Papers No. 48) The temptation embedded in AB988 may have been irresistible.

Admittedly, the lines separating the three branches of government have been allowed to shift somewhat in the interests of bureaucratic efficiency, but the law is settled that there is a point certain that cannot be crossed without flying in the face of fundamental constitutional principles of separation of powers. The city believed that the legislature had crossed that line when it authorized the Coastal Commission through AB 988 to draft local law.

The law the Coastal Commission wrote for Malibu affects the rights of all those residing in or doing business in the city (and in some instances profoundly so). This absolute divorce of political accountability from lawmaking robs the people of the powers guaranteed them in the Constitution. The situation between the city and the commission is just one skirmish in a larger struggle over local control.

In the city’s case, the Coastal Commission used the LCP to exercise broad legislative authority and the voters revolted, demanding that the law to which they would be subject be put to a referendum. Unfortunately, in this case, the court held that the legislature was justified in singling out Malibu and abrogating Malibu voters’ right of referendum. As cities struggle to retain some semblance of local control, state agencies seek to implement their missions without the mess and delay of local politics, and as citizens demand greater accountability from their government, similar circumstances will surely repeat themselves. This round went to greater state agency power.

The city’s briefs and the court’s decisions are available online at the City Attorney’s website www.LocalGovLaw.com

Christi Hogin

City Attorney, Malibu