In 2014, the California State Legislature passed a bill that gave the California Coastal Commission the authority to level administrative fines of up to $11,250 per day for blocking coastal access. It’s an authority the Coastal Commission had wanted for years because, with its passage, they no longer had to go to court to enforce the Coastal Act, nor did they have to worry about some judge actually wanting to hear evidence. Some legislators were hesitant about essentially giving coastal carte blanche to fine but coastal assured them they would use it sparingly and lightly.
We now know what coastal considers to be sparingly and lightly. They just leveled a fine of $4.2 million on a couple who own a house on Las Flores Beach. The history of the administrative fine in this case is illuminating. Initially, the staff recommended that the fine be $600,000 and the homeowners balked and offered $100,000. By the time it went to hearing, the staff had raised their proposed administrative fine to $950,000. The commission, perhaps wanting to make an example out the homeowners for having the temerity to demand a hearing instead of just caving in as so many others had done — and probably also to scare the hell out of anyone owning property along the coast — decided that the staff had been much too timid and upped the ante considerably. Some commissioners proposed a fine of $6.5 million but some of the other commissioners balked at that being too high and the vote, I’m told, was five-to-five. So, they just held an auction and kept dropping the fine until it got down to $4.2 million, which they all were able to sign onto unanimously.
So, what’s wrong with this kind of process? For one thing, we are supposed to be a government of laws and entitled in our constitution to due process of law. That means that in a dispute, which this was, you have a right to bring it to an independent tribunal, before a judge or a jury to hear the evidence. The person who tries the case should not have a vested interest in the outcome of the case. What happened here was straight out of Kafka — Coastal Commission enforcers thinking they had a Coastal Act access violation and wanted an enforcement case. In this case, there was a coastal access easement alongside the house, which was never opened or built. The original owners granted the easement to get coastal permission to build in 1980. In 2002, the new owners bought the house on Las Flores Beach, made no changes and used it as a rental. In 2007, the Coastal Commission said to the owners, “You’re blocking Coastal access and therefore you had to remove the gate blocking the access.”
The owners said, “If we do that, there is just a big opening with a drop to the beach and it posed a risk to anyone using it.”
The commission decided otherwise and held that a $4.2 million fine is about right for a gate built by a prior owner many years before.
Coastal’s position appears to be that they reign by divine right because, after all, who is going to risk a fine of $11,250 per day to say “No” to the commission? I’m sure in coastal’s thinking, $4.2 million is relatively modest. After all, they could have calculated the fine from 2007, which is 10 years.
Do the arithmetic: A fine of $11,250 per day adds up to $4,106,250 per year. If coastal had decided to go after them for 2007, a period of 10 years, they actually could have levied a fine of $42 million so, by their calculation, $4.2 million is probably relatively modest.
You might well wonder if that $4.2 million fine is on the books, can they come after the owners? I’ve been told that coastal not only can look to the Las Flores Beach property but also they can go after the owners’ other property. Whether they can go after the owners personally, I don’t know, and I hope someone can tell us.
To sum it all up, if coastal says you have an access violation, the commission can cite you, then hold a questionably fair and impartial hearing in front of the same commission that cited you, then charge you an administrative fine, which certainly can run into the millions, as long as it doesn’t exceed $11,250 per day. The only criteria for the amount of the fine, it seems, depends on the politics of the commission and the state of their digestion that day.
Back in 1798, in a case called McCullough vs. Maryland, the then-Chief Justice John Marshall said, “The power to tax involves the power to destroy, it is too obvious to be denied.” What the Coastal Commission did here is not coastal regulation, or an access issue; what it is, is tyranny and the legislature shouldn’t tolerate it.
P.S. There is something I forgot, in case you’re wondering where the money goes when collected. It doesn’t go into the state’s general fund. It actually goes into something called the “Violations Remediation Account,” which is controlled by the Coastal Conservancy, which is part of the same coastal crowd, so you might say the money stays in the family.