News Analysis
A bombshell was dropped on the California Coastal Commission last Friday when a Superior Court Judge in Sacramento decided that the Coastal Commission is set up in an unconstitutional manner.
If the decision ultimately stands up upon appeal, it could strip the Coastal Commission of its regulatory authority and change the manner in which land use is regulated along the California coast.
Superior Court Judge Charles Kobayashi based his decision on the fact that two-thirds of the Coastal Commission’s membership is appointed by legislative leaders, even though the commission is part of the executive branch of government and the governor is the chief executive officer.
The Coastal Commission, which was originally created by a citizens’ initiative 30 years ago, has four members appointed by the governor of California, four by the speaker of the Assembly, and four members by the president pro tem of the Senate. All serve at the pleasure of their appointing authority, which means they can be replaced anytime, with or without cause.
The Coastal Commission makes many types of land-use decisions along the California coast, which include approval of development permits, and exercises many types of executive powers, which Kobayashi ruled was improper because it violates the separation of powers provision of the California Constitution.
The implications of the decision, which will most certainly be appealed to the Court of Appeals, and probably later the California Supreme Court, could be profound because it might throw every permit application currently before the Coastal Commission into limbo until there is a definitive answer as to whether the commission is legitimate. That process to reach a final decision could take several years.
More likely, it is expected that the judge will grant a stay of his order, which he has not yet officially issued, allowing time for an appeal since this is a major issue.
The question addressed in Kobayashi’s decision is “a very complicated legal question and I’m sure it will be taken up on appeal,” said Christi Hogin, interim city manager for Malibu. “But it does raise important questions that Malibu has asked in the past about the commission.
“This ruling is based upon the idea that the commission is making policy decisions without being accountable to the voters,” she said. “What makes a policy decision legitimate is when it is made by someone who is elected by people and becomes accountable at the ballot box.
“The city’s Local Coastal Plan draft is created that way, whereas the Coastal Commission is very removed from the voters and the electorate,” she explained.
“I know some people argue that it’s a good thing because it means they don’t make political decisions, but that’s not true,” continued Hogin. “They are in fact political appointees and they have to answer to the elected official who appointed them.”
However, Sara Wan, chair of the Coastal Commission, said: “This is just a question of how the commissioners are appointed, not about the way the commission works.”
Wan feels that Kobayashi’s decision will be overturned on appeal. “We’re not the only commission that is appointed this way,” she said. There are many places in the state where city councils appoint planning commissions, which make land-use decisions, said Wan.
Hogin also emphasized that the commission has done important work over the years. “I also think that every Californian would tell you the coast is worth saving — we all agree,” she said. “But on a day-to-day basis, we have to sometimes compromise to protect other important values.
“I think, in the end, we will rally around the California coast to do what it takes to protect it and offer reasonable access,” she finished
In Wan’s opinion, if a stay were not granted, it would have the effect of putting an immediate moratorium on all development along the coastal zone. This is because the Coastal Act requires that all development in the coastal zone must have a coastal development permit; the only agency that can currently grant one is the Coastal Commission.
Additionally, federal law involves the Coastal Commission with decisions relating to offshore drilling; without it, California would lose its voice in such decisions.
Although the decision took place less than a week ago, the California environmental community is already beginning to organize, according to Wan. Environmentalists are beginning to informally discuss a new initiative that would correct some of the possible constitutional problems.
Wan said she believes the decision might even have the effect of closing ranks in the environmental community and reinvigorating the coastal protection movement because of their strong belief that the California public really wants coastal protection and will support it at the polls.
This opinion would appear to be borne out by a poll conducted by the Los Angeles Times that was released on Monday, in which the paper reported that half of all Americans worry that pollution has grown worse over the last decade. The Times also found that 58 percent of those polled thought that protecting the environment was more important than personal property rights.