Swatting down a challenge to how much power Marin County and the California Coastal Commission have when approving or denying building permits, a county superior court judge last Friday threw out a lawsuit filed by a Muir Beach attorney over what he calls an “underground” legal policy that has widespread influence on development along the coast.

Filed by Richard Kohn on Dec. 30, the suit alleged that three agencies—the county, the county’s Community Development Agency and the Coastal Commission—often illegally approve permits to prevent causing a regulatory “taking” of a property. Takings occur when an administrative decision—such as denying a building permit—would cause a property to decline in value, for which state law requires financial compensation.

For Mr. Kohn, approving permits based on fears over a potential taking  likewise violates state law and threatens to promote destructive development within the coast’s environmentally sensitive habitats. Considering takings issues is the job of courts, not legislative entities, he said—and to act otherwise flies in the face of the state’s constitution and previous court rulings.

“It’s absolutely clear that the power to decide constitutional takings issues is solely a function of the court,” Mr. Kohn said during a hearing on Friday following Judge Paul Haakenson’s tentative ruling against his suit. “Allowing the agency to make these decisions basically insulates the case from judicial review.”

Mr. Kohn’s suit called for the commission to “rescind its potential taking evaluation policy.” Such an evaluation policy, he claimed, is outlined in an “underground” informational bulletin that is widely distributed to commission district offices. His suit also called on the commission to “cease and desist from adjudicating constitutional takings issues,” and for the court to impose an injunction that would prevent the “spending of public funds for the purpose of implementing” policies on takings.  

“The proof is in the staff reports that I’ve submitted to the court,” he said. “It’s perfectly clear, when you read those staff reports, that staff are acting like judges and adjudicating constitutional takings issues, which are explicitly prohibited” under several prior court cases. Mr. Kohn contended that the county and its planning department likewise give undo consideration to takings concerns.

But both the county and the commission rejected Mr. Kohn’s assertions that they do not have authority to consider takings issues when deciding whether to approve or deny permits. The commission, furthermore, has flatly denied that it has any sort of official policy on takings.

Instead, attorneys for the county and commission argued that those agencies have “quasi-judicial” power to consider takings issues prior to acting on permit applications. To check that power, any member of the public has the right to appeal commission and county decisions on permits.

“We’re exercising our quasi-judicial powers, subject to judicial review,” said David Zaltsman, county counsel for Marin. “If we do make a decision that grants an exception, any party can [appeal].”

Further, Mr. Zaltsman and the commission’s legal representation, Deputy Attorney General David Alderson, argued that prohibiting agencies from considering takings issues would effectively hamstring administrative bodies and prompt a wave of costly litigation. 

“This would open up a floodgate of litigation for the Coastal Commission,” Mr. Alderson said. “The Coastal Commission considers takings constraints on a fairly regular basis.”

On that point, Judge Haakenson agreed. He upheld that agencies may exercise quasi-judicial powers and likewise dismissed Mr. Kohn’s notion that the commission’s bulletin served as an “underground regulation,” given that the bulletin “does not provide any steadfast rules from which deviation is prohibited.”

“To avoid a regulatory ‘taking’ without just compensation, the Commission must necessarily consider whether its decision will result in such a taking,” Judge Haakenson’s ruling read. “While the [bulletin] provides guidelines in the analysis, it does not mandate any result under any particular circumstance.”

Mr. Kohn has not said whether he will appeal the ruling.

 

This article was corrected on June 6.