Coastal Post Online


September, 2002

Big Trouble For Powers That Be
By Judy Borello

July's issue of the Cornerstone, a newspaper put out by Stewards of the Range based in Meridian, Idaho, ran a front page article I found to be very interesting.

"Private property is the cornerstone of a free society," is their motto and since I'm an advocate of people's private property rights, I subscribe to Stewards of the Range, especially when they fight for the common man whose rights are being trampled by the powers that be.

The caption on the front page read, "California Coastal Commission Held Unconstitutional." The California trial court decision held that activities of this mighty Commission are one of the best kept secrets of the modern world. Over a year ago, on May 8, 2001, Sacramento Superior Court Judge Charles C. Kobayashi ruled in Marine Fisheries vs. California Coastal Commission that the composition and activities of the Commission are unconstitutional under the Separation of Powers provisions in the California Constitution. The decision is on appeal, and if not overturned, will rock the non-growth concept which has severely limited development of private property all along the California coast.

Judge Kobayashi's decision is not well known and has not received widespread media attention. The California Coastal Commission was created by the California Legislature as a coastal development watchdog. The California Coastal Act of 1976 provides that, "any person wishing to perform or undertake any development in the coastal zone shall obtain a coastal development permit from the Commission. Even though it is a legislatively created agency, the Commission performs executive and legislative planning functions, then performs a quasi-judicial function in reviewing applications for permits for private property development, and finally serves as an executive enforcement agency. So, this appointed, non-elected Commission performs all functions of government, i.e., executive, legislative, and judiciary in mixed fashion.

In the legal world, the Commission is perhaps best known for its role in Nollan vs. California Coastal Commission, a case which worked its way to the US Supreme Court in 1987.

The Nollans leased a beachfront lot in Ventura County in Southern California. Their lease contained an option to buy the bungalow and lot, but the option was conditioned upon demolishment of the bungalow and building a new structure. When they exercised their right, they filed an application with the Coastal Commission for a permit to allow them to build a three bedroom home in keeping with the other residences in the area. The Commission granted the permit but conditioned it with the Nollans allowing a public easement across their private property to make it easier for the public to access the beach area. The Nollans contested the requirement of the easement and the California Supreme Court agreed that the Coastal Commission could not make such a requirement. However, on appeal, the decision was reversed. The Nollans took their case to the US Supreme Court, and in a 5-4 decision, the Court ruled in favor of the Nollans. Before the Supreme Court, the Coastal Commission contended that the easement was necessary to the public good because it protected the public use of the beach, it assisted the public in overcoming a "perceived psychological" barrier to using the beach, and it prevented beach congestion. The Court found their reasons not plausible and the Commission's contention that it had the authority to condition the land use by placing an easement was rejected by the Court. The Court said that the easement was not acquired through eminent domain or purchase. In other words, the Coastal Commission committed a "taking." The taking of someone's legal property rights without compensation. The Nollans won their case!

The County of Marin places mandatory easements on land where the owners are building a home or houses well within their legal right to do so. Take, for instance, the case of Mr. Varlow, who wanted to build a big home on his 90 acres of land right up the Highway from Borello Ranch. It was zoned A-60, one home per 60 acres. When it was heard in front of the Board of Supervisors, Mr. Varlow was told that the only way he could have his home was for him to allow the County to place a mandatory easement across his property. He contended that it was blackmail and extortion. My own opinion at that time was that it constituted a "taking" because it was taking his land use rights away from Mr. Varlow without compensation. The County of Marin makes up its own rules as it goes along, and I am surprised it isn't knee-deep in lawsuits. For instance, someone has 10 development rights and the County grants them four of the legal 10 and then puts a mandatory easement over the rest of the property so that the property owner cannot exercise the right to develop his other legal six development rights. Marin County is notorious for taking away the rights of private ownership. I will let you know how the appeal is decided about the Coastal Commission actions being held unconstitutional.

PS If you are a believer in private property rights, subscribe to Stewards of the Range, PO Box 490, Meridian, ID 83680-0499.



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