In a stunning trial court ruling, the California Coastal Commission was declared an unconstitutional agency. Sacramento County Superior Court Judge Charles Kobayashi ruled that the commission's composition violated the separation of powers doctrine because the Speaker of the Assembly and Senate Rules Committee appoint eight of the twelve commission members.
The ruling surprised people on all sides of the coastal development debate and the Commission itself. Kobayashi issued the ruling in late April, but in May he stayed it pending the outcome of an appeal.
Still, Ronald Zumbrun, a property right attorney who filed the case, said, "While awaiting the appeal process, there will be a legal cloud hanging over the Commission's activities."
A frequent critic of the Coastal Commission, Zumbrun said the agency "for too long has been an oppressive agency answerable only to itself. The public's interest will be better served by a restructured Commission concentrating on coastal policy."
Coastal Commission Executive Director Peter Douglas called the ruling "an aberration" that was unlikely to stand. He added, "At the same time, it's a major decision and a matter of great concern."
Mark Massara, an attorney who heads the Sierra Club's California Coastal Program, called the decision dangerous.
"It means that there are a couple hundred local judges who now have the power to call state agencies unconstitutional," Massara said.
California voters passed the Coastal Act in 1972. The act created the Coastal Commission and granted the new body extraordinary control over land uses within the coastal zone, which typically extends about 1,000 feet inland. The Commission approves Local Coastal Plans, which are part of city and county general plans, and any amendments to LCPs. In jurisdictions without approved LCPs, such as the City of Malibu, the state Commission makes all land use decisions within the coastal zone. Plus, all coastal zone permitting decisions made by cities and counties can be appealed to the state Commission.
The case at hand was brought by the Marine Forests Society, a nonprofit group that had been building artificial reefs out of old tires off the Newport Beach coast. The Coastal Commission last year issued and cease and desist order to the organization, which had no permits for the reef building. The organization contended it was creating new mussel and kelp habitat. But the Commission and environmentalists said that the project was doing more harm than good, and that Marine Forests Society needed Commission permits for its activities.
Marine Forests Society then sued in Sacramento County Superior Court, arguing that the Coastal Commission is unconstitutional. The group said the Commission is a legislative body — not an executive or judicial entity — because two-thirds of its members are appointed by lawmakers. Yet members are not answerable to voters.
The Commission argued that Marine Forests Society was raising only a hypothetical question because there was no proof that the Legislature has usurped the Commission's authority. The Commission further argued that a system of checks and balances is in place because the Senate Rules Committee, the Assembly speaker, and the governor each appoint four members, those members by law come from many coastal areas and must have certain qualifications, and some members are nominated locally.
But Kobayashi was not persuaded.
"The question is not hypothetical," he wrote. "The system of checks and balances does not give adequate protection. Nether the fact that the power is disbursed among the legislative branches nor the geographical diversity changes the fact that eight of its members are appointed and subject to at-will dismissal by the legislative branch of government."
Kobayashi continued, "The Coastal Commission is effectively a legislative agency. Comity and pragmatism cannot save it. The judicial and executive powers that it exercises are not incidental to the lawmaking power. They are not properly under the jurisdiction of the Legislature."
Zumbrun said that if the ruling is upheld, the ability to make and enforce land use decisions in the coastal zone will revert solely to cities and counties, whose elected leaders are accountable to voters.
The Sierra Club's Massara predicted an appellate court would overturn the decision. If the ruling were to stand, he added, environmentalists would respond with a new — and probably far more strict — coastal initiative.
Marine Forests Society v. California Coastal Commission, Sacramento County Superior Court No. 00AS00567.
For Marine Forests Society: Ronald Zumbrun, (916) 486-5900.
For the Commission: Lisa Trankley, deputy attorney general, (916) 327-7877.
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