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Brooks Wilson's Economics Blog: The California Coastal Commission and Property Rights

Friday, October 2, 2009

The California Coastal Commission and Property Rights

Property rights define the rights individuals have to use, transform and transfer the property they own.  Transforming to the rights that owners have to combine resources to improve a product, or make a new product.  For example, consumers have the right to put spinners on wheels, transform a tree into a table, or undeveloped property into low income housing.  Glenn Hubbard and Anthony O'Brien, the authors of "Economics" write,
We have seen that a market system cannot work well unless property rights are enforced. Entrepreneurs are unlikely to risk their own funds, and investors are unlikely to lend their funds to entrepreneurs, unless property is safe from being arbitrarily seized. 
The California Coastal Commission (CCC) regulates the use of property within five miles of the California coast.  Many people, including filmmaker Richard Oshen (and me) think that the CCC has too much power in defining property rights and that it uses those powers arbitrarily.  In "The California Coastal Commission vs. Its Critics," Brian Doherty of Reason Magazine describes sections of Oshen's film "Sins of Commission," which documents CCC power and its abuses of property rights.  How much power does the CCC have?
As CCC Executive Director Douglas humbly told Oshen on-camera in the film (along with describing himself as a "radical pagan"), his unelected commission (whose members are appointed by the governor and leaders of the two state houses) doesn't have the power of eminent domain. All it has is the power to regulate, plan, and enforce restrictions on pretty much any action involving land within five miles of the coast, which means it doesn't really need the power of eminent domain at all. It can largely control the land anyway.
The CCC has a record of abuse of power regarding its right to define property rights losing ain Nollan v. California Coastal Commission before the Supreme Court in 1987.  Doherty continues his description of CCC power.
The CCC's authority has decidedly grown since its beginnings as a temporary outfit with jurisdiction over 1,000 yards of coastline to an established agency with five miles of nearly absolute power, overriding local decisions and slapping multi-million dollar fines on people building small houses on existing concrete pads that could only be seen from the coast by a Superman with telescopic and X-ray vision.
Doherty describes two cases of abuse by the CCC.  Worse than the abuse, is the CCC's ability to use the power of the state to enforce its capricious actions.  The first involves Dan Norris and Peggy Gilder, and it is the case involes Oshen directly involved and got him started on his documentary.
Oshen's project started in October 2005 when he was called by a pair of friends, Dan Norris and Peggy Gilder, who were involved in a legal bind with the CCC. They wanted Oshen to film a CCC inspection of their property. Norris and Gilder insist that the inspection came about because nosy neighbors and a CCC agent trespassed on their posted private property, looking for complaints to trigger an inspection.

The inspection was accompanied by a court order that explicitly forbade Norris and Gilder from filming the proceedings-though at least one of the sheriff's deputies brought along by the CCC inspectors (who were also accompanied by a deputy attorney general) was filming, as can be seen in the footage Oshen did shoot. That footage appears in the rough cut of his documentary.

As Oshen told me, that October day on the 40-acre Norris/Gilder property on Old Topanga Canyon Road in the Santa Monica Mountains was the first time Oshen had even really heard of the CCC. Oshen was amazed to discover a government land use agency with the power, and the desire, to prevent citizens from making an independent record of what happened during an official inspection-thus putting that citizen at a decided disadvantage in any later court proceedings where their version of events diverges from that of a government official.
The second involves Kathleen Kenny.  The link in the quote is to a Los Angles Times article detailing legal proceedings against Kenny.  The article is a good read.
See, for an example, the story of Kathleen Kenny, one of the stars of Oshen's documentary, now deceased. Kenny beat back local inspectors' assaults on her for building on her own property. She even in 1997 won an unprecedented RICO suit against local government officials for harassing her, a case where she acted as her own lawyer. Despite this, she was never able to shake off the CCC from coming after her for more or less the same offense. It has levied multi-million dollar fines that still hang over the head of her living partner, Arthur Starz.


  1. Norris and Gilder built a road on their property without the necessary permits. Instead of working with the Coastal Commission to resolve the violation, they took the advice of an attorney that sees everything through the lens of Nollan v. CCC and sued the Commission and their neighbors instead. That suit was thrown out of court last month.

    Nowhere in California can you build roads without a permit, especially in mountainous zones. Why should it be any different in Topanga Canyon?

    As for the filming, CCC staff initially agreed to the filming on the condition that they too be allowed to film. Norris and Gilder refused to reciprocate, which tells me their intend all along was to mischaracterize the CCC's enforcement efforts.

    Kathleen Kenney (and her estate) also failed to obtain the necessary coastal development permit for her 741 sf building.

    A fair and uniform enforcement of the Coastal Act requires that all development activity within the Coastal Zone be subjected to review for conformance to the Coastal Act. The Kenney estate is subject to daily fines until Coastal Act violations are corrected, which the estate (Starz) has chosen not to do.

    There's nothing arbitrary about the Commission taking enforcement action against Wildcrew's Playground or Kenney's old chicken coop.

    Richard Oshen is attempting to make heroes out of scofflaws. He's also unjustly blaming the CCC for everything from wildfires to bad hair days.

    It doesn't take that much of a journalist effort to get the other side of the story and get the facts straight. (Unless you're an attorney that relies on ignorance of the Coastal Act to make a living, in which case you may want to spread that ignorance around.)

    BTW, the Coastal Zone has shrunk since the passage of Prop 20 and the subsequent Coastal Act of 1976. A quick review of any of the Coastal Zone maps readily available from local governments with certified LCPs or the Commission's website will show that the Coastal Zone extends inland far less that 5 miles for most of the California coast.

    The purpose of the Coastal Commission is to make sure that development within the Coastal Zone is consistent with the Coastal Act. Unless your intent is to destroy ESHA or to block access to the coast, it isn't that difficult to develop in a manner that suits the site and is in full compliance with the Coastal Act.

  2. Having no prior knowledge of the CCC and the complaints brought against them, what I have to say comes directly from the above text and the comment (the word "essay" better justifies it) made by Mr. Frank Drouillard. In this case, I have to give the CCC the benefit of the doubt. I sounds like an organization trying its best to maintain the well being of a community, or communities. People often misunderstand, or simply have no idea why some restrictions and ordinances are put into place. I work for the City of Hewitt Street Dept., and in my time there I have had many similar experiences. Ordinances and restrictions are there to preserve the wellbeing of the community rather than the wellbeing of the individual when both cannot be sufficiently accommodated. While property rights are important, sometimes we have to look at the "big picture", and take into account the effects on the entire community.

  3. Brian Ginna8/10/09 4:55 PM

    "Norris and Gilder built a road on their property without the necessary permits."

    The first sentence by Mr. Drouillard is a complete lie.

    The rest does not matter. He is intentionally misstating facts.

  4. Ah, Mr. Ginna, my very own e-stalker.

    The Commission initiated enforcement based on evidence of road building activity obtained by neighbors and from the limited observations by enforcement staff.

    A site inspection would have quickly verified either no road building activity or that the observed activity was simply maintenance of an existing road.

    If their development activity was permissible, why did Norris and Guilder prevent or obstruct the site inspection? Failure to do so didn't help them or advance private propety rights one whit. That failure did, however, prevent the Commission from determining if a permit was required and it did enrich a few attorneys.

  5. Brian Ginna12/10/09 6:33 PM

    "evidence of road building activity"

    Strike two.

    No "road building" ever took place, therefore, there could not have been "evidence." Only a few long-distance pictures of what the neighbors thought was "road building."

    Maybe you should actually look at the lawsuit before you continue to make a fool of yourself.

  6. Please, help me! My mother is in an ongoing battle with the CCC because they claim building permits for her downstairs additions from 1994 that were granted by Building and Safety did not get their stamp of approval and are now illegal. They say she is in violation, and that unless she pays for all these ecological surveys and resubmits the plans for their review they will seize her property. She has struggled with them for years trying to get permission to pave her driveway, build a small shed for her horses, etc. It has cost her over FORTY THOUSAND DOLLARS to get NOTHING done. What's worse is that she is a single mom and we've lived there for 20 effing years! They want ridiculous things, like proof that there were horses there in 1974 or else her horse corral is illegal. She is NOT rich and they are bankrupting her. I have been paying my own way through college for the last three years because she can't afford to help me. I work full time and go to school full time because she has no money after the thousands in fees, survey costs, and other ridiculous expenses. What's worse is that now that I'm transferring to UCLA, I was going to move back in with her so I could quit my job, and focus on finishing my education. I can't move in with her yet because the 9x10 shed she was going to build for me behind the house would get her further in trouble. She is desperately trying to get them to grant her the permission to build my little shed, but everytime they communicate with her, they demand more money, more surveys, more plans and forms and permits. I'm married (to my high school sweetheart) and there is simply not enough room in her tiny 1000 sq ft house for her, my brother, me, and my boyfriend. I can't keep working and going to school, putting off the dreams of my future because some faceless commission is trying to extort my mom for every last dime she's got. I am a vegan freaking environmentalist, and I just wanna live in a goddamn shed out back behind my mother's house while I go to school! There is nothing environmentally dangerous about the small wooden shed she's proposing,and I'm even going to use my small savings to help her install solar panels. Is there some way I can help her? We are running out of money fighting them, and getting desperate.


  7. Oh please... I'm nearly in bloody tears over the plight of you and your mother and her illegal construction. It's always just a little tiny thing they go after, right? How come every time someone commits a crime and they're called on the carpet for it - it's the enforcing agency that's somehow the out-of-control 'monster,' butchering the rights of the criminals? I suppose I should try your strategy... "Help! Help! I got pulled over for a DUI by this Vicious mean corrupt cop... I've been driving drunk since...bla bla...I'm a poor starving student...bla..." I'm sure everything you say is absolutely accurate. lol. Good luck with your education at UCLA.

  8. hey Kegan,
    your mom is in an ugly predicament. Unfortunately, she probably applied for a permit from the CCC. If she did, just by applying, she signed a piece of paper that gives the CCC a lot (if not all) power over her property. With that in hand, why should the CCC give her a permit? She has been hoodwinked, as have thousands (yes, thousands!) of families in CA. Discover who her congressman is. Write to him, or her, OFTEN.( Zev Yaroslavski is not going to help a whit, so don't bother going there.)
    I would wish you 'good luck', but what you really need are nerves of steel and the commitment to your family and future to believe in the Constitution to DEMAND accountability from California.
    You are not alone.