Who’s in charge?

Coastal Commission staff circumventing law

October 14, 2007

Peter Douglas, executive director of the California Coastal Commission, wins the lifetime achievement award for cheek. He not only wrote into the 1976 Coastal Act incredible power for the position he has held for 20 years. He has also long circumvented a part of the act rewritten to trim that power.

In the Douglas draft, the executive director could directly appeal land-use decisions made by local governments or the commission itself. The act lawmakers passed limits such appeals to an applicant for a coastal permit, any aggrieved person or any two of the commissioners.

No problem for the nervy and wily. For years Douglas has asked commissioners to sign official appeal forms that are otherwise blank. At last count, 133 of them lay secure in Douglas’ office.

When the staff opposes a land-use decision but there is no applicant, aggrieved person or pair of commissioners who want to appeal, they go to Douglas. If he approves their appeal, staff members call the commissioners one by one until two agree to put their names to the appeal. Apparently it’s not that hard. In recent years, five of the 12 commissioners agreed to 95 percent of the staff’s requests.

Oceanside Councilman Jerome Kern, astonished to learn of this practice last summer, sent his concerns to Douglas. Douglas defends it as better than the prior practice: sending staffers “considerable distances to find and connect with individual commissioners to obtain their signature on the appeal forms.” Pre-signing, he says, is expedient. Commissioners are part time. They’re scattered across the state. They lack the knowledge to spot problems. The staff has that knowledge but lacks “unilateral” authority to appeal.

Commissioners who sign appeals, Douglas adds, are not committed to vote for them on the dais. In fact, he continues, “it is not unusual that after an appeal has been filed and more information has been brought forward … the appeal is withdrawn or resolved even before the commission is required to act on it.”

Whoa. An appeal requested by the staff can be “resolved” by that same staff, now empowered to demand concessions from a permittee under the false impression that the commissioners dislike his plan. A bureaucratic hat trick, that is: concessions wrested, commissioners used and the Coastal Act manipulated.

Commissioners unwilling to alert Douglas to fax and FedEx won’t likely protest his power grabs. But Councilman Kern notes that these schemes may go beyond unethical to illegal. The statute plainly doesn’t endorse staff appeals. Can commissioners legally delegate to staff the discretion, duty and decision the statute ascribes specifically to them? If staffers make serial calls to enough commissioners to constitute a quorum, have they violated state open-meetings law?

Kern has asked state legislators to review the commission’s appeal process. Rewriting the law in language invulnerable to Douglas’ self-serving manipulation is one solution. But the commissioners on their own could have ended these staff incursions long ago. Now would do

Coastal Commission system works

By Patrick Kruer
October 19, 2007

Concerns have been raised about the California Coastal Commission’s appeal process that warrant clarification. Specifically, some members of the community are of the opinion that the commission staff is inappropriately, or even illegally, “using” commissioners to appeal locally approved projects.

Since the commission staff is prohibited from appealing projects directly, the critics’ reasoning goes, they dupe unwitting commissioners into signing blank appeal forms, which are then used to appeal projects that commissioners know little about. As the commission’s chair, with eight years of service on the panel, I can attest to the fact that commissioners are fully capable of exercising their own, independent judgment on what projects warrant appeal, and that our staff is thoughtful and forthcoming when discussing such matters with commissioners.

The Coastal Act specifically allows any two commissioners to appeal coastal development projects approved by local government. All newly appointed commissioners are asked to sign blank appeal forms that are secured under our executive director’s control. Some don’t agree to sign, but most do, including me. No commissioner’s form may be used without that commissioner’s explicit prior approval and then only after the legal basis and policy concerns for an appeal have been explained. Commissioners are not required or coerced into signing the forms.

The Coastal Commission’s appeals procedures have been in place and open to public review for more than two decades and have even been the subject of legislative hearings. The commission has determined over time that this is the most efficient process. Appeal deadlines are tight (10 days), volunteer commissioners with demanding professional lives and busy travel schedules serve part time, and therefore must have confidence in our staff.

Local governments are required to notify the commission whenever a coastal development permit is approved. Statewide, our staff must review and evaluate literally hundreds of local permits to ensure that coastal protection policies are properly applied. The executive director reviews all potential appeals before individual commissioners are contacted given that it is unreasonable to expect commissioners to personally pore over hundreds of local permit actions every year. That is the appropriate role of the staff.

Historically, only about 5 percent of all approved local permits are appealed. Sometimes, after an appeal is filed, more information is received, and the appeal is withdrawn if the issues are resolved. Like the filing of an appeal, withdrawal also requires prior approval of the two commissioners who filed the appeal. Furthermore, an appeal is not heard until the entire commission, after public hearing, determines the appeal raises a substantial issue under the law. If the commission fails to find substantial issue the appeal is denied and the local approval becomes final.

It’s no secret that some local governments apply coastal protection policies more loosely than others. The commission’s long-standing appeals process performs a critical oversight function to ensure that important coastal resources such as public access, recreational opportunities, wetlands and public parklands are protected while allowing appropriately planned development to go forward.

In my experience, the staff does a highly professional and thorough job reviewing and analyzing development projects to determine whether an appeal is warranted. Sometimes I don’t agree with our staff’s conclusions, and vote accordingly. But I have never seen the staff manipulate or misuse the appeal process. To the contrary, the public discussions that accompany most appeals serve to inform and strengthen everyone’s understanding of how coastal protection policies can be effectively and fairly applied.

The suggestion that state legislators should review our appeal procedure ignores the fact that legislative hearings have already been held on this very topic. I have seen no evidence of process abuse and don’t see how the commission could meet its statutory obligations to review local coastal permits to ensure coastal protection were we to abandon our time-tested appeal procedures.