The state Supreme Court ruling against Marine Forest Society leaves the city few options in fighting the Coastal Commission-drafted Local Coastal Plan. The commission says if the city is willing to withdraw its LCP amendment application, commission staff will work with the city to develop new amendment language.
By Jonathan Friedman/Assistant Editor
The California Supreme Court issued a ruling last week in favor of the California Coastal Commission in its case against the nonprofit group, Marine Forests Society. The decision, which reverses earlier rulings by a Sacramento Superior Court judge and the California Court of Appeal that called the makeup of the Coastal Commission unconstitutional, eliminated another hope for the city of Malibu as a way to get its Coastal Commission-drafted Local Coastal Program invalidated.
When the Supreme Court declined last year to hear a case on whether Malibu residents could vote on a Coastal Commission-drafted Malibu LCP, the city was forced to accept the set of documents that establishes coastal land-use laws for the city. Several city officials then turned to the Marine Forests case as another possibility to invalidate the LCP, which many in Malibu say is too restrictive. The logic was that if the Supreme Court decided the Coastal Commission were not legal, then the LCP written by it would not be legal either.
Mayor Andy Stern said he was saddened the Supreme Court ruled against Marine Forests. “I’m disappointed… a decision against the Coastal Commission would have meant that we would be rid of our LCP.”
The city is now left with two opportunities, but both are confronted with problems. One is a lawsuit that is waiting to be heard by the Los Angeles Superior Court in which the city is challenging the LCP as not being consistent with the city’s General Plan and zoning laws. Councilmember Jeff Jennings said that lawsuit has some merit, but he said the city must now take out one of its major arguments in the case, that the Coastal Commission is a constitutionally illegal state agency, because of the Marine Forests ruling.
The other opportunity the city has is to get the Coastal Commission to approve an amendment to the LCP it has submitted. The City Council, with the help of a consultant, wrote an amendment, which has hundreds of pages worth of changes to the LCP, over an 18-month period, submitting them to the Coastal Commission’s Ventura office last year. But the Coastal Commission staff recently notified the city that it would recommend the commissioners vote against the amendment.
Jack Ainsworth, director of the Coastal Commission’s South Central Coast District, wrote in a letter, dated June 20, to City Manager Katie Lichtig, “We determined that the LCP amendment essentially represented a complete rewrite of the LCP, substantially lessened the intent of the policies of the LCP… the commission staff would be recommending denial of the LCP amendment as submitted in its entirety with no suggested modifications.”
Ainsworth further stated in the letter that if the city was willing to withdraw its amendment application, the Coastal Commission staff was willing to work with the city to develop new amendment language. He wrote that the coastal commission staff was willing to compromise on portions of the LCP that “the city is finding difficult to implement in practice because the LCP policies and/or implementation language is either not clear or creates an unreasonable hardship for applicants.”
At Monday’s City Council meeting, the council voted to have city staff meet with Coastal Commission staff to discuss Ainsworth’s proposal. If an agreement were struck between the two, it would go before the council for a vote at its July 11 meeting.
On Tuesday, Stern said he would be willing to support Ainsworth’s proposal if a definitive agreement was made between the city and Coastal Commission staffs. If the Coastal Commission only comes up with a vague guarantee, then Stern said he would prefer to take the risk that the Coastal Commission voting body might approve the original amendment, against its staff’s recommendation.
The Marine Forests decision ends a saga
Although the Marine Forests case was technically a battle between one environmental nonprofit organization and a state agency, it had become a much larger battle between environmental organizations and those who say the Coastal Commission has become more powerful that it ever was intended to be. Both sides of the lawsuit received support through briefs from various organizations and municipalities. Malibu City Attorney Christi Hogin wrote one in favor of Marine Forests.
Marine Forests had challenged the constitutionality of the Coastal Commission, because eight of the 12 members were appointed by the state Legislature (the Assembly speaker names four and the Senate Rules Committee names the other four), with the remaining four being named by the governor. The argument was that since a majority of the members were appointed by Legislature, the Coastal Commission was a legislative body, while it acted as a judicial and executive body by granting permits and making cease and desist orders.
A Sacramento Superior Court judge accepted Marine Forests’ argument and the Court of Appeal affirmed it in 2002. In response to those rulings, the state in 2003 altered the terms of the Legislature-appointed Coastal Commissioners from two years with the possibility of being fired by the appointer at any time to four years without the possibility of being fired. The governor’s appointees continue to serve two-year terms and can be dismissed at any time.
The Supreme Court decided that this change sufficiently reduced the power of the Legislature in the Coastal Commission, eliminating an issue with the California Constitution’s separation of powers doctrine.
Chief Justice Ronald M. George wrote in the decision, which was affirmed by the other six judges, that past actions of the Coastal Commission (including the adoption of the Malibu LCP) could not be overturned even if the court were to assume that the pre-2003 structure of the commission were unconstitutional. George cited several reasons for this, including that there was a statue of limitations on challenging permits that have been issued over the years.
The Marine Forests saga goes back to 1993. That year, the Coastal Commission told Marine Forests head Rodolphe Streichenberger that he needed a coastal permit to build an artificial reef made of tires off the coast of Newport Beach. Streichenberger built the reef without seeking the permit and in 1995 he applied for an “after-the-fact” permit. The Coastal Commission rejected the application in 1997 and in 1999 ordered Streichenberger to remove the reef. In response, Streichenberger filed his suit.