Point Reyes Light - June 30, 2005
Coastal Commission survives court challenge
By Peter Jamison
Environmentalists, opponents of unrestricted development, and lovers of California’s largely pristine coastline heaved a shared sigh of relief last Thursday, when the state Supreme Court rejected a challenge to the constitutionality of the California Coastal Commission.
In a unanimous decision, the high court ruled that the agency’s appointment process for its commissioners does not violate the constitutional separation of the legislative and executive branches of government.
But the commission’s unique structure – eight of the commissioners are appointed by the state legislature, and four by the governor – was not the only thing at stake in Thursday’s decision. Had the court ruled against the commission, it would have risked permanently weakening the state’s power to regulate development along its coastline.
No less significant, a ruling against the commission might have cast into doubt the authenticity of the agency’s countless decisions over the past three decades, precipitating a scramble by developers and property owners to redeem building permits rejected by the commission in the past.
"That would have been chaos," said Sarah Christie, legislative director for the commission in Sacramento. "It’s hard to imagine that any deliberative body would have sought that as a remedy."
Catherine Caufield, executive director of the Environmental Action Committee of West Marin, applauded the ruling, saying that it was hard to imagine "the sort of demons" a decision against the commission "would have unleashed from the past." But more important, Caufield said, particularly in West Marin, was that the commission remain strong in the face of future development.
"The pressure on the coastline only gets greater," Caufield said. "We really need the Coastal Commission to protect us from ourselves."
Three decades of controversy
The commission in its present form was created by the 1976 California Coastal Act (a 1972 ballot initiative established an interim body, the California Coastal Zone Conservation Commission). It exercises broad regulatory powers over a swathe of coast that, while narrow, encompasses an area greater than that of the state of Rhode Island.
Passed by Californians worried about the powerlessness of counties and cities to resist encroaching corporate developers, the Coastal Act replaced an irregular set of local controls with a single protocol governing the state’s more than 1,000 miles of coastline.
The commission’s advent in the 1970s literally put the breaks on planned development up and down the North Coast, including the Oceana Marin subdivision at Dillon Beach, the Sea Ranch subdivision along the northernmost 10 miles of Sonoma County’s coastline, and the Bodega Harbour subdivision in the town of Bodega Bay. The commission eventually allowed construction of these subdivisions to move forward under stricter environmental standards.
Almost from the start, commissioners have faced criticism from developers and property owners who have complained of what they view as its heavy-handed regulations and arbitrary power over private property.
Nor has the commission been free of scandal. In 1993 former commissioner Mark Nathanson was sent to prison for soliciting bribes ranging from $25,000 to $250,000. For almost 30 years commissioners have faced charges of being unduly influenced by politicians.
Politicians influenced votes
Just or not, charges of political influence are more comprehensible in light of the commission’s unusual structure. Four commissioners are appointed by the governor, four by the state assembly speaker, and four by the state senate rules committee. In contrast to the federal government, the state of California allows legislators to make appointments to executive bodies.
Until 2003, all these commissioners served "at the pleasure of the appointing authority," meaning that they could be replaced at any time.
Former executive director of the commission Michael Fischer told The Light in 2003 that such a system in fact allowed politicians to put the arm on their ostensibly unbiased appointees. Given the "prestige" of being a commissioner, Fischer said, many members "really wanted to stay on the commission, [so they] didn’t want to say ‘screw you’ to their appointing authority."
Those commissioners who didn’t knuckle under to political pressure, Fischer said, were sometimes fired. He recalled at least a half-dozen permit hearings where a commissioner, ready to cast his vote, would be handed a letter announcing that he had just been replaced.
Such stunts put the commission under the power of "money politics," Fischer said, placing commissioners "in an untenable position."
Fixed terms ‘insulate’ commissioners
The case decided by the supreme court last Thursday was brought by the non-profit Marine Forests Society after it was denied a permit to build an artificial reef in the waters off Newport Beach. A Sacramento County Superior Court ruling against the commission declared the agency unconstitutional, and in 2003 the Third Appeals Court in Sacramento upheld the ruling.
The Appeals Court decision authored by Judge Arthur Scotland stated that "the unfettered power to remove the majority of the commission’s voting members and to replace them with others, if they act in a manner disfavored by the Senate Committee on Rules and the speaker of the Assembly, makes those commission members subservient to the Legislature."
In response, the state assembly in 2003 passed a law establishing fixed, four-year terms for commissioners. The action may have been decisive in the supreme court ruling last Thursday, when justices decided that the commission was sufficiently independent of legislative influence to carry out its executive functions.
"The court said that if they didn’t serve ‘at the pleasure of the appointing authority’ they would be insulated," said legislative director Christie.
Christie said that the Marine Forests Society case was merely a vehicle for property-rights advocates eager to weaken the commission. She noted that the group’s attorney was Ronald Zumbrun, cofounder of the Pacific Legal Foundation, an organization that has often taken pro bono cases involving government land-use regulations.
"They troll around for cases they can pick up and represent," Christie said. "These weren’t defenders of the constitution bringing these things. These were developers."
Local environmentalists weigh in
Caufield said the commission’s survival was "a great thing" for California’s coastal residents.
"I think they’re essential to the view of California that Californians want to have," she said.
Without the commission, Caufield added, West Marin would lose "a very important layer of protection and an independent voice that can rise above local politics."
Caufield said that while her organization hadn’t always supported the commission’s decisions, she recognized the agency’s importance in protecting California’s coast and preserving West Marin in its present, undeveloped state.
"We have disagreements with them," she said. "But thank god they exist."