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California

Troy Senik
The Edge of Reason
U2’s guitarist is just the latest property owner to be bullied by the California Coastal Commission.
18 August 2011

As a member of the legendary Irish rock band U2—a group renowned for its social consciousness—the guitarist known as the Edge (real name: David Evans) is not used to being pilloried as an avaricious hypocrite. But such are the wages of trying to build a home in the domain of the California Coastal Commission (CCC), a little-known but extraordinarily powerful organ of Golden State government.

For the past five years, Evans and a group of friends, family, and business associates have been trying to build five homes on a 156-acre mountaintop tract overlooking the Pacific coastline of Malibu. This June, the CCC, charged with regulating development along California’s pristine coast, rejected the plans by a vote of 8 to 4. “In 38 years of this commission’s existence, this is one of the three worst projects that I’ve seen in terms of environmental devastation,” said the commission’s executive director, Peter Douglas, shortly after the vote, citing concerns about local vegetation, wildlife, and water quality. “It’s a contradiction in terms—you can’t be serious about being an environmentalist and pick this location.”

You’d think that Evans had proposed erecting a coal-fired power plant. In reality, the development, dubbed “Leaves in the Wind,” seems tailor-made for the eco-conscious. The five homes would occupy about one acre in total, spread around the 156-acre lot. They’ll use solar panels to produce electricity and heat water. They’ll have charging stations for electric vehicles and on-site wastewater treatment. The plans even call for the homes to meet the LEED gold standard, the second-highest rating available for environmentally friendly buildings, according to the United States Green Building Council.

When those design features failed to placate critics, Evans went even further in his concessions. He struck a deal with the Santa Monica Mountains Conservancy to donate $1 million in cash and consultancy services to the organization, dedicate nearly 100 acres of the property to conservation easements (precluding future building in perpetuity), and restrict development on adjacent land. None of this was enough to satisfy the CCC. As a result, Evans filed a lawsuit last week against the commission, arguing that it had denied him reasonable use of his land.

California’s position at the center of the green movement is a logical extension of its natural bounty. From the inviting coastline of Newport Beach in the south to the majestic forests of Yosemite National Park in the north, the state is an ecological Shangri-La. To live in this paradise by the Pacific without succumbing to conservationist impulses would be a remarkable achievement. But therein lies a tension for policymakers, for while the state relies on its aesthetic appeal to draw in new citizens from around the world, those very masses inspire fears that overcrowding and misuse will spoil California’s natural heritage. It was in reaction to those fears that voters approved a 1972 ballot initiative establishing the CCC as an independent state agency charged with regulating development along the state’s coastline.

Conceived as a progressive bulwark against environmental degradation, the CCC has instead spent the last 40 years developing a reputation as a rogue agency openly contemptuous of property rights. In the 1980s, the commission’s behavior—for example, granting building permits on the condition that private land be ceded for government purposes—led to one of the few land-use cases to reach the U.S. Supreme Court. In Nollan v. California Coastal Commission, the majority found the commission in violation of the Constitution’s Takings Clause, and Justice Antonin Scalia scorned the CCC for executing an “out-and-out plan of extortion.” In the 1990s, a major scandal engulfed the CCC when it became known that bribes were often the quickest way to win approval for a development on coastal property—a revelation that resulted in a three-year prison term for one commissioner, Mark Nathanson. And in the last decade, a Sacramento Superior Court judge found the commission’s essentially unilateral authority unconstitutional: “Purportedly an executive agency, the Commission is answerable to no one in the Executive.” (Though the decision was upheld at the appellate level, it was overturned by the California Supreme Court in 2005.)

Yet decades of admonishment have done little to prevent the commission’s intrusion into the lives of property owners on the California coast. At a June conference in Sacramento focusing on the commission’s future, the CCC’s advocates were unapologetic in their quest for broader power. They pushed for the ability to impose fines without outside approval. They repeatedly said that the commission needed more money and more staff. California Resources Agency Secretary John Laird even compared the significance of the commission’s work to the civil rights movement. Such moral preening doesn’t suggest an organization that has learned a lesson in humility.

Neither do the commission’s most recent actions. In July, a judge in San Mateo County Superior Court ruled the CCC’s harassment of El Granada landowners Dan and Denise Sterling unconstitutional for the second time in two years. The ruling voided the commission’s attempt to make the Sterlings’ construction of a 10,000-square-foot home contingent upon relinquishing the remaining 140 acres of their property for public use. In 2009, the commission had sought to compel the Sterlings to dedicate those 140 acres to farming or raising cattle, though they are neither farmers nor ranchers. In both cases, Judge George Miram ruled that the CCC’s demands were an unconstitutional “taking.” It was a testament to the commission’s obstinacy that one of the precedents that Miram cited was Nollan, the commission’s own 1987 trip to the U.S. Supreme Court on the same issue.

Also in July, the commission ordered the removal of 200 trailers from an oceanfront campground in Marin County after owners refused the CCC’s insistence that the trailers be rented to the public for three-quarters of the year. Around the same time, the commission unanimously denied approval for emergency repairs to a San Francisco beach until the city develops a long-term storm-damage plan congenial to the CCC’s wishes. Even the threat of global warming has now come under the CCC’s purview, with the commission warning local agencies that it will begin requiring developers to factor in sea levels’ rising up to five feet in the next century.

By delaying development projects for years, ramping up the cost of building, and preventing use of huge swaths of coastal land, the Coastal Commission raises the already stratospheric price of California’s oceanfront property and further impedes the state’s prospects for renewed economic prosperity. The commission is fond of citing its activism as an example of “smart growth.” But to many property owners, including at least one legendary guitarist, it looks more like no growth at all.

Troy Senik is a senior fellow at the Center for Individual Freedom and a contributor at Ricochet.com.

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