What Property Rights: The California Coastal Commission's History of Abusing Land Rights and Some Thoughts on the Underlying Causes

By Breemer, J. David | UCLA Journal of Environmental Law & Policy, Winter 2004 | Go to article overview

What Property Rights: The California Coastal Commission's History of Abusing Land Rights and Some Thoughts on the Underlying Causes


Breemer, J. David, UCLA Journal of Environmental Law & Policy


I.

INTRODUCTION

When California enacted the California Coastal Act of 1976 (Act), (2) and created the California Coastal Commission (Commission) to implement the policies of that Act, it attempted to ensure a balanced approach toward future development along the coast. In particular, the Act empowered the Commission to weigh environmentally-minded conservation goals against economic needs and private property rights in determining how development should proceed. (3) Portions of the Act specifically preclude the Commission from applying the Act in a manner that offends constitutional protections for private property. (4)

After twenty-five years, it is fair to say that the Commission is more attentive today to claims of property rights, at least in some circumstances, than it was in the years immediately following its creation. Nevertheless, for many observers, the Commission's incremental progress hardly achieves the balance between private and public rights contemplated by the Coastal Act and United States Constitution. Indeed, in the last few years, the Commission has been described in the following terms: "categorically refuses to recognize the validity of an individual homeowner's property rights;" (5) "a perfect example of well-meaning liberalism gone terribly awry;" (6) "a rogue organization less interested in matters of general interest than in micromanaging such details as the color of people's homes, what they can plant in their gardens and whether they should be allowed to fence wild animals away from the yards where their children play;" (7) "the poster child for government power run amok--but because everything the commission does is supposedly to protect the environment, hardly anybody questions it;" (8) "established ... to help local governments adopt local coastal plans. Instead, it pulled a Saddam, investing itself with dictatorial powers over every last grain of the state's 1.5 million acres of coastal property--public and private;" (9) "If one's goal is to slow development at all costs--even if it means undermining private property rights ... then one would be aghast at a monumental court decision this week that says the California Coastal Commission is unconstitutional. Everyone else should be elated." (10)

A review of the extensive body of case law involving the Commission and publicly reported accounts of the Commission's actions tends to support the foregoing complaints, at least to the extent they suggest that the Commission has insufficient respect for private rights in land. As described in this article, such a review indicates that, much of the time, the Commission operates by neglect at best, and contempt at worst, when it comes to private property rights. Lack of appreciation for individual property rights can be found in all of the Commission's activities; one can see it in the denial of carefully-planned development projects along the coast, imposition of severe conditions on approved projects, strict enforcement of a strict reading the Coastal Act, and in the Commission's interpretation of the scope of its own jurisdiction and the procedural protections afforded coastal development applicants. (11)

This article documents the Commission's response to claims of private land rights, whether that response is manifested in substantive or procedural applications of the Commission's power, and surveys the judicial conflicts which result. Upon coming to the conclusion that individual property interests rank low on the Commission's priority list, the article attempts to explain the reasons for a de facto policy treating private land use as a privilege subject to the Commission's control, rather than as constitutionally protected right. Part II of this article reviews the purposes of the Coastal Act and the role of the Commission in implementing the Act, with special emphasis on the Commission's power over activities on private land. Part III surveys selected case law and press accounts documenting the Commission's actions, and summarizes instances in which the Commission appears to have given insufficient respect to private rights. …

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