I am disturbed by the City Council’s apparent desire to appeal the referendum decision that the City lost. First, if the City Council appeals but continues to not process coastal development permits, my property rights, as well as a number of others, continue to be taken as a result of the city pursuing legal action based on reasoning that has been ruled to be “fatally flawed”. Second, an appeal closes the door on amending the LCP with the Coastal Commission as they, not surprisingly, have said that they will not consider amendments to the LCP while the city continues challenging the legality of the LCP.
Third, the following reasoning employed by Judge Goodman seems to be sound and results in a common sense conclusion. The Coastal Act was specifically written to deal with coastal development on a statewide basis. The Supreme Court has supported this result. While the state’s authority to write laws for a specific city is limited, it can do so if there is both a statewide object and some rationale to do it on a local basis. The state justified the city specific law by stating that Malibu had failed to write and adopt a LCP that complies with the Coastal Act and that it continued to disregard the Coastal Act. As Malibu has not started to issue Coastal Development Permits more than eight months after they were required to by the Coastal Act, the city has done nothing to dispel this belief. The state delegated the authority to the Coastal Commission to write Malibu’s LCP based on the provisions of the Coastal Act. This provided sufficient direction as well as constraints on the Coastal Commission as they have been issuing Coastal Permits in Malibu for the last 20 years based on the provisions of the Coastal Act.
The foundation of power in a democracy rests with its people. The California Constitution allows the people to exercise this power by electing their legislators, but reserves with the people the right of referendum. Everybody agrees that had Malibu’s City Council written and adopted the LCP, the voters of the city, as the ultimate foundation of authority in the city, would be able to have a referendum with regards to it. But as the Coastal Commission wrote the LCP at the direction of the State to achieve a statewide goal, the voters of the city no longer have that right.
While the logic that Judge Goodman employs is clear but legalistic, the result is quite common sense. Once the state decides it needs to write a law specific to a particular geographical area or specific group of people to achieve some statewide objective, it would be nonsensical to give the people who were impacted the ability to circulate a petition and call a referendum to rescind the law. This would result in anarchy not democracy. If the State raises the tax on cigarettes, should smokers have the right to have a referendum on it? If the State raises the tax rate on high-income people, do they get to have a referendum? Even I could get 10 percent of the adversely affected people to sign a petition to rescind those laws.
The right of referendum is a fundamental right that should not be perverted. The petition for a referendum on the LCP was circulated by well meaning residents trying to protect their property rights but was based on “fatally flawed” legal reasoning. Its success was purely based on people’s visceral dislike of the Coastal Commission. The resulting lawsuit has already wasted eight months, cost many hundreds of thousands dollars, jeopardized our ability to amend the LCP with the Coastal Commission, and given the Coastal Commission more than they would have dreamed of asking for-a building moratorium. Sooner or later we will realize that it has been a waste of time and money and has adversely affected the City’s goals. Let us hope it is sooner.
David Visher