SAN DIEGO TIMES TRIBUNE
COASTAL PROPERTY OWNERS DESERVE PROTECTION
San Diego Times Tribune
Craig M. Collins 04:00p.m. Sep 5, 2013
The California Coastal Commission currently has the power to accuse coastal property owners of violating the Coastal Act, hold a hearing, and to find them in violation. Although the Coastal Act provides for onerous fines (up to $6,000 per day), the Coastal Commission currently cannot impose the fine itself. The Coastal Commission must file a lawsuit asking a judge to impose the fine.
The Legislature is considering legislation to skip this final extra step and allow the Coastal Commission to impose the fines itself.
It ought to be a concern whenever the government seeks to streamline its prosecution of its citizens by reducing their due process rights. The hearing that the Coastal Commission conducts to determine whether a violation has occurred is presided over by the coastal commissioners acting as judges. While commission membership changes from time to time, there is no requirement that commissioners be licensed attorneys. Many are not even though these cases often involve complex legal questions surrounding the interpretation of the Coastal Act and local coastal plans.
In fairness to property owners, the current Coastal Act gives them the right to have the commission’s decision reviewed by a judge. Even so, judges have restrained the Coastal Commission only in the most extreme cases such as last year when an enraged commission sought $25 million in fines against a homeowner for building a three-hole golf course in his front yard.
The other side
Enforcing public’s right to beach access
Most property owners never obtain any review, as a practical matter, since they must pay their own attorney fees. If the Coastal Commission were to spuriously and wrongly decide that coastal homeowners must, say, tear down a gazebo in their back yard, few homeowners can spend the $50,000 or more in attorney fees that it could cost to challenge that decision. As a practical matter, the Coastal Commission has complete dictatorial control over how coastal property owners of modest means use their land.
Serving as a coastal commissioner is not a full-time job. Most commissioners show up for the monthly meetings and receive for the first time an elephant-choking glut of background reading for all of the matters before them in their three-day-long monthly meeting. This forces commissioners to rely heavily on their staffers for advice on what to do. In a typical enforcement hearing, the chief prosecuting witness testifying against homeowners is a full-time member of the Coastal Commission’s staff. In the entire history of Coastal Commission hearings on alleged violations, it is quite possible that the Coastal Commission has never ruled against its staff in any enforcement hearing. To make it worse, the fines are sometimes circulated back to the Coastal Commission to spend.
Few people understand the breadth of the Coastal Act. Technically, almost everyone who has ever visited a California beach has violated the law. The Coastal Act prohibits the “placement of solid material” in the coastal zone without a permit. Anyone who has stuck a surfboard in the sand or spread a blanket on the beach has placed solid material in the coastal zone, and thus violated the law.
To its credit, the Coastal Commission rarely prosecutes such picayune violations “” though the Coastal Commission has taken some surprising positions such as that lighting fireworks is “development” and, as such, requires a permit. Investing near-total discretion in unelected officials to prosecute whomever they choose is, however, an unwise policy.
If the law is going to be changed to allow the Coastal Commission to impose fines directly, some protections should be added for property owners. Homeowners who are wrongly accused of violations, and prove it in court, ought to be reimbursed their attorney fees (as is already done in some eminent domain cases when the government takes land and offers too little).
The law should be changed so that fines do not accrue during the time that a property owner is mounting a good-faith legal challenge to the Coastal Commission’s decision in court. Otherwise, the threat of these fines coerces many coastal owners into simply submitting to the Coastal Commission’s decision “” right or wrong.
To add to the huge imbalance of power and coercion, which already heavily favors the Coastal Commission, by allowing the Coastal Commission to impose fines directly is unneeded and would undermine due process at least without additional protections for homeowners.
Collins is an attorney in Los Angeles who represents property owners in coastal and eminent domain cases.
The current version of bill as amended is available at http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0951-1000/ab_976_bill_20130826_amended_sen_v92.htm
A history of the bill can be found at http://openstates.org/ca/bills/20132014/AB976/
You may contact your California State Senator at http://findyourrep.legislature.ca.gov/ for help in defeating AB 976.
Coastal Property Owners Association of Santa Cruz County
Please visit our website at http://www.coastalpropertyowners.org/ for other news about coastal issues.
You may obtain your password by clicking on the “Login Help” button at the lower left side of our web page.