During a 1997 speech to the American Planning Association in Monterey, Peter Douglas, the longtime executive director of the California Coastal Commission and main author of the 1972 initiative that created it, argued that private property rights were on a collision course with the environmental movement.
He warned of "the clear and present threat to the health and well-being of the public flowing from the property rights debate" and expressed concern "about the direction in which the debate is being driven by the courts." Douglas gave a tongue lashing to the Pacific Legal Foundation, a Sacramento-based group that litigates on behalf of property owners fighting against government agencies.
Douglas died four years ago, but the agency he guided for several decades continues to implement his—and the ensuing 1976 coastal act's—vision in an oft-times heavy-handed manner. The agency has broad powers to control land use along California's 1,100-mile coastline. If he were alive today, Douglas would be appalled at an Orange County court ruling late last month in a San Clemente case.
Those of us who believe in limited and accountable government, and who bristle at the thought of bureaucrats shaking down property owners for unfair concessions, should celebrate. Douglas was right in this much, however: The courts have found constitutional property protections sometimes are at odds with the goals of environmentalists. Even sweeter: The winning property owners were represented by the same group he chided.
The case is Capistrano Shores Property LLC v. California Coastal Commission. The main issue is fairly simple. Eric Wills and his family moved a mobile home to a beachfront park in 1977 as a second home. After 38 years, they sought a permit to replace the aged structure. The commission agreed to the request for a slightly smaller one after requiring the owner to provide a geological study of the site's risks based on predicted rising sea level. And there were hearings.
"But there was a catch," PLF attorney Larry Salzman wrote in an Orange County Register column in April. "The permit was subject to the condition that the Wills forever waive their rights to future shoreline protection of their property, including the right to maintain, repair or enhance the existing seawall." The commission is requiring any park lessees to do the same thing if they seek to replace their old trailers with nicer and newer ones.
The owners are not asking the government to maintain a seawall—but only for the right for the community to maintain the wall it's responsible for. That demand that they give up future rights seems Orwellian, except that this is common procedure for an agency that doesn't seem to care much for the current rights of property owners.
"For years, the commission has reflexively opposed shoreline protection for private property wherever it can… Instead, the commission has insisted on a controversial policy of 'managed retreat' from the coast," Salzman explained. Basically, environmentalists would like owners to "retreat from the coastline over time" and let nature take its course. In this case, the commission wanted to stop any future seawall expansion from the mobile-home park to protect the size of the beach.
The problem, for those who echo Douglas' mindset, is that in the United States public officials are limited in their ability to simply deprive the rightful owners of the legitimate use of their property. "So unless we amend our national Constitution to give Americans a constitutional right to a high 'quality' of life (as is the case in India) or to give standing and protection to the environmental commons of the country, it is the courts that will be the arbiters of the debate over property rights and the protection of environmental values," Douglas once said.
Fortunately, no such constitutional revision has occurred. Douglas also complained that property-rights advocates base their cases on "horror stories" that have "sympathetic plaintiffs." Well, they do that because there are indeed many horror stories and these are sympathetic plaintiffs who often are stuck fighting with an intractable agency.
Orange County Superior Court Judge Theodore Howard nixed the commission's condition banning the seawall update, finding it "unreasonably broad." He said the commission's demanded pre-emptive waiver of rights "appears to be less closely related to the project at hand and instead related to a broader project which the commission anticipates will become necessary in the future."
The coastal act allows property owners to protect their property from natural hazards. The judge found it relied on unrelated cases to make its case. "What if there is a major disaster?" he wrote. "The applicant will have in hindsight lost any rights to advocate for repair or maintenance of the seawall/revetment by accepting the present condition."
Even agencies with high-minded goals of environmental stewardship should be bound by other high-minded goals—i.e., ones that constrain officials from trampling on people's liberty in the name of the greater good. Yes, the courts are the last arbiter of such matters. That fact seemed to bother Douglas, but it should be a relief to the rest of us.