Steering clear of the trouble that looms for the California Coastal Commission, Governor Arnold Schwarzenegger stuck to soundbite-sized rhetoric last week when he replaced three commissioners from Gray Davis’ Democratic machine with three Republicans.
In stating his commitment to preserving the coast, the governor tiptoed around environmentalists on the left and landowners on the right who are equally fed up with the commission’s legacy of heavy-handedness and susceptibility to lobbyists.
Democrats Mary Nichols, a former California Resources secretary appointed in the waning days of Davis’ administration, and Cynthia McClain-Hill, an attorney in Los Angeles, departed last week with little show of regret from environmentalists — Nichols having supported efforts by Dana Point developers to move existing seawalls so they could build anew along the coast, and Hill having received a lowly conservation-rating of 32 percent from the Sierra Club. Humboldt County Supervisor John Woolley departed with a 50 percent rating and a sound reputation among environmentalists.
Republican Bonnie Neely, a Humboldt County supervisor, who as a coastal commissioner under Governor George Deukmejian received a 19 percent conservation approval, returned as a known quantity. Stanford University law lecturer and environmental program chief Meg Caldwell arrived with a clean slate and green credentials, though her résumé also lists a semiconductor maintenance firm in the 1990s and a land-use law firm that catered to private corporations in the 1980s. The governor’s third appointee was his former film agent and a contributor to his 2003 campaign, Steven Kram, an executive with William Morris Agency whose environmental record is unknown.
Observers wonder what if anything will distinguish these appointees. Many remember the allegations of influence flowing from $8.3 million given to Davis’ re-election campaign by individuals with business before the commission. Schwarzenegger’s office did not comment. Detractors were careful not to appear too ornery. “Hope springs eternal,” said James Burling of the Pacific Legal Foundation, “that the governor sees this as an opportunity to reform the commission.”
Lost in the shuffle was a legal challenge striking at the heart of the commission that could strip it of its power. A group of environmental researchers backed by the conservative PLF and the California Building Industry Association is arguing that the commission’s appointment process violates the separation-of-powers clause of the California Constitution. If ruled unconstitutional, the commission would be open to re-examination by the Legislature or, more likely, the voters, and regulatory power would be restored to local planners.
On behalf of the commission, the state attorney general is claiming there is nothing wrong with an executive agency made up of a majority of legislative appointees playing quasi-judicial roles in the regulation of the coastline.
Californians established the Coastal Commission in 1972. Anticipating the inability of local governments to stand up to big-money developers, the Legislature passed the Coastal Act in 1976 and made the commission permanent. The act vests the commission with broad authority over ports, wetlands and industrial facilities, and with power to draft regulations, rule on building-permit applications and review the coastal programs of local governments. The act also makes the Legislature responsible for appointing eight of the 12 commissioners, with the governor responsible for appointing the other four. (Schwarzenegger has one more appointment to make.)
After three decades of the commission’s nearly unfettered authority regulating 1,100 miles of coastline, gripes include overzealous enforcement of building-permit rules, unwritten policies of requiring property owners to give up land in exchange for building permits, and the incessant wink-and-nod between commissioners and major developers.
Power and corruption have resided at the core of the commission, some say, creating a breeding ground for despotism. In 1987, the U.S. Supreme Court struck down a requirement that property owners dedicate land to the state in exchange for building permits, characterizing it as “out-and-out plan of extortion.” (These days the dedication of land by permit-seekers is voluntary but highly encouraged, and allegedly rewarded.) Then, in 1992, former commissioner Mark Nathanson was convicted of soliciting bribes. The current legal challenge is more ideological but potentially threatening to the commission.
In 1993, the commission decided that Marine Forests Society, an experimental-research firm, had stepped out of line in constructing a forest to restore marine habitat on a sandy plain near Newport Harbor in Orange County. The marine forest is built on a reef made of tires, plastic jugs and concrete blocks. After denying the society’s after-the-fact permit application, the commission ordered it to remove the experimental site, in 1999. The society filed a lawsuit, effectively staying the commission’s order.
The society argued successfully both at trial and before an appeals court that the legislatively appointed majority of commissioners — and the power to remove them — results in a natural subservience to lawmakers among members of what should be an executive agency. The commission could control coastal-development policy as a legislative body, the society argued, but was prohibited by the separation-of-powers clause from taking enforcement action and making rulings — such as the one denying a permit for the marine forest.
Lawmakers envisioned conflict when they vested the commission with broad, multifaceted authority, according to Peter Douglas, executive director of the commission. “It could never work if all the power was vested in one branch of government,” he said. “It would be like giving the commission away.” To hold the commission’s structure unconstitutional now would bring government in California to a grinding halt, he added, pointing to the myriad of other state agencies with diverse governmental powers.
Oral arguments before the state Supreme Court should take place in the coming months.
Douglas further maintained that in February 2003, then-Governor Davis cured the separation-of-powers problem and insulated the commission from political influence by signing a bill that set a four-year term for legislative appointees — as opposed to the previous two-year term — and did away with a provision that enabled legislators to replace commissioners “at will.” “The state Supreme Court should overturn the appeals court, uphold the law Davis signed and declare the whole matter moot,” Douglas said.
Yet if the state’s highest court sides with Marine Forest Society, the state could be forced to transfer the commission’s enforcement authority back to the 15 counties and 110 cities currently subject to state coastal regulation, re-write the Coastal Act to place appointment power in the governor or amend the Constitution to reflect the current status quo. (The justices also will consider whether striking down the commission has a retroactive effect on decades of permit decisions — a political, judicial and administrative quagmire with disastrous consequences for the commission.)
Douglas contended that rewriting the act to give all appointment power to the governor is out of the question. If that were the case, Douglas said, the commission likely never would have survived former Governor Deukmejian, who wanted to abolish it altogether. If the commission is forced to take action, look for a voter initiative that amends the Constitution, he said. “A majority of Californians approve of the work the commission does,” Douglas said. “They will rise up against efforts to undermine it. And this governor has gone on record in support of it too.”
What Schwarzenegger has not gone on record about is the nonpartisan perception of an executive body drunk with power and rife with special-interest pressure. And last week, he apparently saw no benefit in addressing the imminent question of whether the state has become too centralized and bureaucratic in regulating its coast. But eventually he will hear from critics to the right of the commission and a growing list of individuals complaining that they are prevented from so much as building stairs on their own beachfront property, or from placing picnic tables on their property if adjacent to a state beach.
The alleged abuse of power is at the root of complaints to the left of the commission as well. Environmentalists say they won’t know which way the wind is going to blow until the commission’s upcoming meeting in San Pedro, when they see who of the governor’s appointees discloses contacts with developers that have business before the commission. Proposed construction of 379 homes in Bolsa Chica in Orange County and plans to chop 17,000 pine trees near Pebble Beach to make way for another golf course are among the projects to watch.
Said Frank Angel, a lawyer for the Sierra Club, “I’d like to give the governor and his appointees the benefit of the doubt, but there has been a corruptive influence on decision making, and it is deplorable.”
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