A Muir Beach lawyer has filed a lawsuit against the California Coastal Commission, Marin County and the Marin County Community Development Agency over what he calls an “underground” legal policy that may have a widespread influence on development in environmentally sensitive habitat areas along the coast. The policy, he says, results in the Coastal Commission often approving development out of fears of seizing property.

Filed by Richard Kohn on Dec. 30, the suit alleges that the three agencies often rely on an illegal, un-codified policy regarding regulatory “takings,” in which an administrative decision—such as denying a building permit—causes a property to decline in value. (The law requires financial compensation in that event.) Considering takings issues, Mr. Kohn offers, is the job of courts, not legislative entities—and to believe otherwise is a violation of state constitution.

Mr. Kohn’s suit calls for the county and commission to “rescind its potential taking evaluation policy” and to “cease and desist from adjudicating constitutional takings issues,” as well as for the court to impose an injunction that would prevent the “spending of public funds for the purpose of implementing” policies on takings.

The suit’s origin dates to late 2014, when Stinson Beach neighbors Kathleen Hurley and Erika Lowry challenged the county’s approval of a Mill Valley realtor’s proposed 1,400 square-foot house in their backyard that may exacerbate flooding and, ultimately, should not be permitted  because it is located in a floodplain. That challenge resulted in the county’s decision to institute a moratorium on new construction and renovations for over a third of homes in Stinson Beach until county code can be rewritten later this spring. Ms. Hurley and Ms. Lowry last month appealed the project to the Coastal Commission. 

Prior to the lawsuit, Mr. Kohn filed a petition in early December asking the commission to give up its takings policy—which he claims is outlined in a “underground” informational bulletin widely distributed to Coastal Commission district offices—on grounds that to have such a policy violates California law and threatens to promote destructive development in the coast’s environmentally sensitive habitat areas. 

“’Takings’ has become a mantra to allow development in areas that are off-limits,” Mr. Kohn wrote in an email. “Whether the Commission or local government have the authority to decide constitutional taking questions is an important question that needs to be resolved.”

The county and commission, meanwhile, have rejected Mr. Kohn’s assertions that they do not have authority to consider takings issues when deciding whether to approve or deny permits. Those agencies point to a section in the California Coastal Act that prohibits government bodies from “exercise[ing] their power to grant or deny a permit in a manner which will take or damage private property for public use.” The commission, furthermore, has flatly denied that it has any sort of official policy on takings.

“Given that Mr. Kohn came up empty in making his case with both staff, the Attorney General’s office, and the Commission, he has done what many attorneys with free time and a curious mind would do when their arguments are rejected: sue,“ said Steve Kinsey, who represents West Marin on the county’s board of supervisors and is also currently the chair of the Coastal Commission.

A hearing is scheduled for mid-May in Marin County Superior Court.