Should the Coastal Commission be given more power to control private property?

That is the heart of the question surrounding Assembly Bill 976, which would grant the Commission authority to level civil penalties against property owners without having to go to court.  As we’ve previously reported, giving additional power to an agency with a documented and lengthy history of violating property owner’s constitutional rights is deeply concerning.  And that is the message I tried to convey on NPR News’ Forum Program, Tuesday, where I debated NPR reporter Paul Rogers, and the Coastal Commission’s Legislative Director, Sarah Christie.

Currently, the Commission has several tools at its disposal for enforcing the Coastal Act, which requires primarily that anyone wanting to undertake “development” along California’s Coast obtain a Coastal Development Permit.  When someone fails to do that—or, he violates conditions that were attached to a Permit—the Commission may proceed with an enforcement action.  It also has the authority to issue cease and desist orders, and to record a public notice of violation against the property.

But if the Commission wants to collect fines from an alleged violator, it must ask the Attorney General to pursue a civil action on its behalf in court.  This Bill would allow the Commission to forgo that trip to the courthouse; instead, it could levy fines directly—up to $1250 per day that the violation exists—and, it could attach a lien to the violator’s property in order to collect those fines.

During the debate, Sarah Christie argued that the Bill is necessary—to allow the Commission to do its job, and ordinary—because many other state agencies already command this power.  I disagreed and explained why giving the Commission more power is a bad idea.  Here is some additional analysis and responses to the asserted justifications for the Bill:

Assertion #1: The Commission should have this power to levy fines without going to court because other California agencies have that same power.

The California Coastal Commission is not like the other state agencies that have power to fine people.  Most of those agencies regulate discreet industries, and the amount they can fine violators is capped at a specific dollar amount, often $10,000.  Here, we are talking about regulating the activities—many of them routine—of millions of Californians who live along the coast.  And the fines are not capped, so they can easily exceed the value of a property owner’s land.

Indeed, the Coastal Commission doesn’t just regulate “development” as most people think of that term.  Rather, “development” under the Coastal Act gives the Commission jurisdiction over all of the following:

the placement or erection of any solid material or structure; discharge or disposal of any dredged material or of any gaseous, liquid, solid, or thermal waste; grading, removing, dredging, mining, or extraction of any materials; change in the density or intensity of use of land . . .  and any other division of land, including lot splits; . . . change in the intensity of use of water, or of access thereto . . .

Thus, “development” includes: putting up a “no trespassing sign” or a gate; setting off fireworks; erecting a tsunami warning sign near the shore; installing parking meters; instituting overnight parking districtsfixing a dilapidated structure; putting up a barrier to protect property along the ocean from erosion; vacating a public easement over a parking lot; replacing a stairway in a front yard; planting palm trees; replacing a dock; replacing a fence; and many other minor and routine activities that people undertake in the course of caring for their homes and property.

Because this definition of “development” is so incredibly broad, most people along the coast violate the Coastal Act without knowing it.  So it is possible to find Coastal Act violations anywhere and everywhere, if you look for them.  If this bill passes, the Commission will now have even more incentive to do just that.

In addition, when the Commission uses its current enforcement powers, it doesn’t just go after people who have engaged in unpermitted “development.”  It also pursues cases against property owners who have allegedly violated the terms of existing permits.

By way of background, when the Coastal Commission issues someone a permit, it requires that person to agree to a whole slew of conditions.  These often include: granting the public an access easement across private property; submitting reports from engineers and biologists annually about the status of water drainage, ground stability and plant life; removing all “non-native vegetation” and replacing it with “native” vegetation; using only hand tools to conduct work in sensitive areas; avoiding all “environmentally sensitive habitat area” (or ESHA) buffers; agreeing to dedicate a large percentage of the property to a permanent, open space or conservation easement so that it can never be built on; not engaging in any work during high tourist seasons along the beach or the mating seasons of particular animals; painting houses a particular color; installing only a certain type of outdoor lighting; removing palm trees (because they are non-native); and a slew of other finicky, exacting requirements that can only be undertaken by experts.

Because there are literally dozens of these requirements attached to each permit—anyone who possesses an existing permit is likely not in perfect compliance with every single condition at any given time.  And many, if not most coastal property owners have permits, because they have been required for all “development” since 1972.  As a result, the Commission can open an enforcement action to compel someone to come into compliance with the terms of his permit.  That means that the Commission can, and has in fact, opened enforcement actions against property owners for planting the wrong kind of flowers.

Assertion #2: “[B]ecause going to court to enforce the law is a lengthy and cumbersome process and is extremely burdensome for both the Attorney General and the Commission, it has been done only four times in the last decade.”

First of all, the process isn’t burdensome for the Commission in the sense that the cost of going to court does not come out of the Commission’s budget.  But secondly, the real statistic that is not being shared here is the number of times in the past ten years that the Commission has asked the Attorney General to take a case to court and had that request denied.  Without that number, it is impossible to know what percentage of cases the AG’s Office refuses to take to court.

I suspect that the Commission does not ask the AG’s Office to take on many cases because the Commission’s current enforcement tools are sufficient to motivate most people to amend Coastal Act violations.  Or maybe the AG’s Office realizes there is no good evidence—admissible in court—to prosecute the alleged violator.  In a newspaper article, Sarah Christie is attributed with having said as much herself:

The majority of violators claim they did not know a permit was required and offer to correct the error, or seek the required coastal development permit for their development, if it is allowed by law, Christie said.

And:

Only a fraction of Coastal Act violators refuse to cooperate with the CCC, though these cases are difficult for the agency to enforce under current law, Christie said.

That second statement confirms my point: most people who receive a cease and desist order from the California Coastal Commission stating they have violated the law, take it seriously.  The mere threat that they could be hauled into court and fined under the Coastal Act up to $15,000 a day for an unintentional violation, or $30,000 a day for an intentional violation is sufficient to motivate most people to act—either to acknowledge and fix the alleged problem—or to contest the asserted violation via the Commission’s administrative process, followed by a legal challenge if necessary.

The proponents of this Bill are perpetuating a very bleak view of human nature as a justification for it, a view which simply does not comport with the reality of how most coastal property owners conduct themselves vis-à-vis the law.

Assertion #3:  The Commission needs this additional power to help clear its backlog of more than 1800 open enforcement cases.

The Commission here is presumably banking on the fact that people will be more likely to obey the Commission’s cease and desist orders, or to rectify their notices of violation, if they know that the Commission can assess civil penalties and/or place a lien on their property without having to go to court.  This assumes that the kind of person who would ignore a cease and desist order threatening fines, would not ignore that order if it were sent with a statement saying that the Commission could levy those fines without going to court.

I remain skeptical that this additional power will make a difference to that kind of person.  Someone who ignores a notice from a state agency, accusing him of violating the law and threatening him with a court action that could impose upwards of $15,000 in fines a day, is simply not going to be any more motivated by knowing that the Commission can levy those fines directly.

Rather than motivate that “fraction of Coastal Act violators who refuse to cooperate with the C[ommission],” this Bill will allow the Commission to close-out its back-log of cases simply by assessing a fine and then attaching a lien.  Because the fine can exceed the value of the property—and it often will since the fines accrue on a daily basis until the violation is corrected—the Commission will end up seizing private property.

One of the unintended consequences of this Bill will be to cause people to do whatever the Commission wants even if they have not violated the Coastal Act, because they simply lack the time, energy, money, sophistication or motivation to challenge the Commission’s assertions.  The Commission will indeed clear its backlog—and ensure it never grows back—by waging a war of attrition against coastal residents.

Assertion #4: We shouldn’t worry about giving the Commission this additional power because it will only be used against people who do terrible things, like “bulldoze sand dunes in the middle of grunion running season.”

Let me explain.  Grunions are a type of fish, native to the Pacific Ocean that come onto the beach in the middle of the night to lay eggs during the summer on particular evenings.  Many people gather to watch these “grunion runs,” which are indeed a site to behold.  During the NPR debate, Sarah Christie gave as an example of the type of heinous activity that the Bill would allow the Commission to curb, the person who bulldozed sand dunes in the middle of grunion running season.

This indeed happened in Dana Point.  The Commission responded by issuing a notice of violation that led to a negotiated settlement between the offender and the Commission, the terms of which were memorialized in a Commission-issued consent order.  As part of that consent order, the offender helped fund a documentary film about grunions and their spawning habits that the Commission screened at its June 2012 meeting.  The film is Surf, Sand and Silversides: the California Grunion, and can be watched here.

The point is that the Commission resolved this egregious case with the offender, without ever having to go to court.  Hence, it is disingenuous to use that case as an example of why the Commission needs more enforcement powers.  Most people who engage in this type of “egregious” behavior, are developers or people otherwise in the public eye who are independently motivated to resolve asserted violations with the Commission because they want to maintain their credibility.  They are therefore especially motivated to resolve alleged violations quickly, and to come to an agreement with the Commission that avoids a lawsuit.

Assertion #5: We also shouldn’t worry about this Bill because there is an exception for minior violations; so it will really only be used against people who commit egregious acts . . .  like bulldozing sand dunes in the middle of grunion running season.

During the interview, Sarah Christie accused the opposition of not having read the bill.  In particular, I believe she was referring to subsection (f) which provides:

In enacting this section, it is the intent of the Legislature to ensure that unintentional, minor violations of this division that only cause de minimis harm will not lead to the imposition of civil penalties if the violator has acted expeditiously to correct the violation.

Subsection (h) also provides:

Administrative penalties pursuant to subdivision (a) shall not be assessed if the property owner corrects the violation consistent with this division within 30 days of receiving written notification from the commission regarding the notification, and if the alleged violator can correct the violation without undertaking additional development that requires a permit under this division. This subdivision shall not apply to violations of previous permit conditions.

In regards to subsection (f), what exactly is a “minor violation?”  What is “de minimis harm?”  What does it mean to “act expeditiously?”  We don’t know because the bill doesn’t say.  A coalition of business groups, agricultural interests and others proposed a modest amendment to the Bill that was rejected.  The amendment would have defined these vague terms to ensure that fines were only levied against knowing violators who intentionally caused harm to coastal resources.

Perhaps subsection (f) will be interpreted in conjunction with Section 30624.7 of the Coastal Act, and the related regulation found in California Code of Regulation, Title 14, Section 13238.1, both of which govern de minimis waivers for permits.  Under those provisions, the Executive Director of the Coastal Commission has the authority to determine whether to waive the Coastal Act’s permitting requirement if certain conditions are met.  But notably, the burden still falls on the property owner to complete (and pay for) a permit application in order to receive a waiver.

Another possibility is that subsection (f) will be interpreted in light of subsection (h) so that “minor violations” will be those that: (1) can be corrected within 30 days; (2) without the need for a permit; (3) where the violation is not of an existing permit condition.  That is alarming because the very act of removing unpermitted development is itself development that requires a permit to undertake.  And it generally takes at least 6 months to obtain a permit.  Moreover, as noted, many “violations”—at least a quarter —are of existing permit conditions.  For those classes of violators—i.e. those who use the wrong kind of tools or who plant the wrong kind of flowers—there is no 30 day grace period.

Thus, this alleged “safe haven” for minor violations, and for good faith actors is not sufficient for protecting the average coastal property owner from the imposition of ruinous fines.  It is simply a spoonful of sugar designed to make the Legislature swallow this Bill more easily.

Assertion #6: The Commission’s hearings, wherein these fines would be imposed, provide sufficient legal protections for property owners who are wrongly accused of violating the Coastal Act or the terms of existing permits.

We must first consider why the Attorney General has only chosen to initiate 4 new prosecutions in court over the past decade.  It seems clear that the AG’s office would only pursue cases that it thinks it can win—cases where there is sufficient, credible evidence that would convince a judge that a Coastal Act violation has in fact occurred.  Could it be that the AG’s office refuses to take on more Coastal Commission cases because it isn’t convinced there’s sufficient evidence to win them?  Or, that it thinks the alleged violation—i.e. erecting a fence in the wrong place—is too frivolous to merit the expense of taxpayer dollars?

Regardless, the American legal tradition cherishes the right to vindicate oneself in court when being accused of having violated the law.  Forcing the Commission to convince the AG to take a case to court protects that principle.  It also appropriately places the burden on the agency that is making the accusations of law breaking.  If the Bill passes, the burden will instead fall on the property owner to take the Commission court, with the likely result that many people will simply give-in to the Commission’s demands even if they are innocent.

Furthermore, Coastal Commission hearings are simply not a good vehicle for weighing the credibility of evidence.  Unlike a court, there is no sworn testimony, no right to discovery, no right against self-incrimination, no right to confront witnesses, and no rule against hearsay.  Commissioners have wide latitude to weigh the evidence presented them however they like; there is no good process for ferreting out lies from the truth, or for discovering whether people have an ulterior motive for testifying.  (And they often do; most enforcement actions begin with phone calls from vindictive neighbors).

Absolving the Commission of going to the courthouse means simply, that it will assess fines against people based on weaker evidence—evidence that wouldn’t hold-up in court.  That is unacceptable when it comes to this Bill that has the potential to bankrupt property owners and lead to the state seizing private property in order to collect its fines.

For these reasons, giving the Coastal Commission more power is simply a bad idea.  But it is also ludicrous to believe that this state-wide commission could bring every square inch of California’s 1100 mile coastline into perfect conformity with the Coastal Act if only it had more power and more resources.  When you try and regulate that much geography, that many people, and such a wide range of activities—many of which are fleeting, minor and ordinary—you have created a Herculean task that can never be attained by mere mortals.  Unless, of course, you shred the Constitution, ignore all protections for property owners, and trample on civil liberties.  Then, the Commission surely could accomplish all of its goals, and countless more, in what would then be the People’s Republic of California.  Let’s hope that day never comes.

 

 

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