Running out of control
A year ago, Sacramento Superior Court Judge Charles Kobayashi took a hard look at the California Coastal Commission and declared that it was simply an arm of the Legislature. (Marine Forests Society v. Streichenberger, Sac. case no. 00AS00567.) His reasoning was simple and straightforward. The Commission has 12 voting members. Eight of them are appointed by the Speaker of the Assembly and the Chairman of the Senate Rules Committee. The Commissioners serve at the pleasure of those who appoint them and may be removed at whim.
Years ago, the U.S. Supreme Court recognized that such total control over tenure in office means that those who appoint exercise whatever control they desire. “To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over the execution of the laws . . . is constitutionally impermissible.”(Bowsher v. Synar, 478 U.S. 714, 726 [1986].)
Judge Kobayashi’s conclusion was of more than merely academic interest. The Coastal Commission is a powerful state agency that wields enormous control over the use and development of property in the state’s coastal zone. It engages in long-range planning, it exercises control over land use plans adopted by coastal cities and counties, it hears appeals from permits granted or denied by those agencies, and it issues and enforces compliance orders when it believes someone has violated the California Coastal Act. (Pub. Res. Code 30000, et seq.)
If the Commission were a typical administrative agency, such a mixture of duties and responsibilities would be unremarkable. If, on the other hand, the Commission is merely an arm of the Legislature, then the separation of powers prohibition of Cal. Const., Art. III, 3 would preclude many of those actions – including its quasi-judicial actions in reviewing permit rulings and its quasi-executive actions in enforcing perceived Coastal Act violations. The Legislature’s function is to make policy, not administer or enforce it.
The Marine Forests case is now on appeal, and the state Supreme Court will undoubtedly be presented with the opportunity to review the appellate decision in due course.
Meanwhile, the Legislature and the Commission seem bent on reinforcing and documenting the fact that the Commission exists as a legislative tool. The battleground for this latest chapter is Malibu.
Under the Coastal Act, each coastal city and county is required to prepare a Local Coastal Program (LCP) to guide its future development. The key part of that LCP is the Land Use Plan. Those plans are then reviewed by the Commission for conformity with the Coastal Act. If approved, the city or county is allowed to assume control over issuing (or denying) permits for development in the coastal zone, with the Commission retaining appellate jurisdiction. Absent an approved LCP, the Commission itself must rule on any permit application.
Malibu has had trouble completing its LCP. One can argue about the causes of that (and they cover a wide gamut due to the volatile politics of this fairly new city), but the solution chosen by the Legislature was to hand whittle a statute for Malibu directing the Commission itself to draft and adopt Malibu’s LCP. (Pub. Res. Code 30166.5.)
The Legislature’s solution was stunning. Although its leaders have assured those affected that their intent is to allow the City to “assume local control of coastal development as expeditiously as possible” (Letter to the Editor, The Malibu Times, from John L. Burton and Robert Hertzberg, June 13, 2002, pp. A4-A5), such “local control” would be based on a plan drafted and adopted by the Commission. That Commission plan would “for all purposes . . . constitute the certified local coastal program for the area.” (Pub. Res. Code 30166.5.) Presumably the Commission and the Legislature would then allow the City to administer the State’s land use plan.
This kind of top-down planning is Big Brother run amok. No amount of lip service about returning local control can gainsay the obvious fact that granting the locals the power to administer a plan crammed down their throats by the Commission (with local rulings and determinations subject to appeal to the Commission) leaves something to be desired in the sense of controlling one’s own destiny – the same as other local communities do.
Even more startling is the fact that the Legislature would do this at a time when the powers already being exercised by the Commission are not only being challenged, but have been declared unconstitutional because of the Legislature’s control over the Commission. For the Legislature to respond by granting the Commission more power – the kind of planning power that has specifically been held to be legislative (City of Chula Vista v. Superior Court, 133 Cal.App.3d 472, 488 [1982]) – is difficult to comprehend.
But, if the Legislature’s action was stunning, the Commission’s response has been off the charts. The Commission’s initial land use plan for Malibu has designated almost the entire city as an Environmentally Sensitive Habitat Area. To most readers, that may sound relatively benign. After all, many people would describe much of the State’s coastal areas that way, along with much of our inland habitat. What’s so revolutionary about describing Malibu as environmentally sensitive?
The problem is a mix of statutory absolutism and judicial enforcement. Environmentally Sensitive Habitat Area (ESHA) is not a generic term; it is a term of art, applying to an area in which plant or animal life (or their habitats) are either rare or especially valuable and which could be easily disturbed by human activities. (Pub. Res. Code 30107.5.) Once an area has been declared to be an ESHA, the law kicks in, precluding any use of the area that is not “dependent on those resources,” and development adjacent to an ESHA is severely restricted so as not to degrade the protected parcel. (Pub. Res. Code 30240.)
The courts have rigidly construed the ESHA statutes. In Sierra Club v. California Coastal Com., 12 Cal.App.4th 602 (1993), for example, the court held that an area of stunted trees (caused by rocky soil and a general absence of fertilizer) had to be “protected” against human intrusion as mild as walking a dog, because the fertilizer that dogs would naturally add to the environment during their frolics would degrade the “pygmy forest” by feeding it and allowing the plants to grow to their natural height.
Similarly, in Bolsa Chica Land Trust v. Superior Court, 71 Cal.App.4th 493 (1999), Orange County and a local land developer wanted to relocate a dying string of non-native eucalyptus trees to a different part of the property and replace them with stronger, healthier native trees. Nothing doing, said the court. Once an ESHA is declared, it cannot be tampered with. The eucalyptus trees had to be preserved in situ, and some way of bringing them back to life had to be found.
One other thing about ESHAs: there aren’t any standards for determining when and where one exists. There has been a lot of litigation in recent years about “sound science” versus “junk science,” and questioning what sort of testimony should be allowed in courtrooms. ESHA science is about as mushy as it gets. The statutory definition noted above about rare or especially valuable plants, animals, or their habitats, is about all there is. There are no regulations to guide agencies or property owners in determining what is (or is not) an ESHA. A government agency simply declares one, and then it’s up to the property owners (as in the “pygmy forest” and Bolsa Chica cases) to live with it.
So, when the Coastal Commission decided that virtually all of Malibu was ESHA, a lot of people were dismayed. Rather than having any input (much less control) over their own lives (and all the public hearings in the world mean little when the agency conducting the hearings has the power to make the ultimate decision based on reports and testimony provided by its own full-time staff), the residents of Malibu are faced with having the Legislature’s hand-picked Commission tell them what is good for them.
If the rule-as the courts have plainly concluded-is “once an ESHA, always an ESHA,” and the consequence of that is that nothing can be done to disturb the ESHA, then you might as well build a wall around Malibu (or at least a drawbridge), because the needs of the ESHA outbalance any problems caused for those unfortunate enough to own land so designated.
This problem will likely be with us for a while, and will likely play itself out in the courts-first in the Marine Forests litigation, and then in some challenge by Malibu to being told it has only the power to carry out the Commission’s will. But for those who like to gloat about the problems of the “trendy” folks who inhabit places like Malibu, watch your back. This kind of power is infectious. Once the State has a taste and decides it likes the flavor, who knows who’s next?
Michael D.Berger