Ruling Seen as Major Blow to Coastal Panel

A Sacramento Superior Court judge has ruled that the California Coastal Commission is unconstitutional in the way it is set up, a decision that could significantly weaken the agency empowered nearly 30 years ago to protect the state’s most precious resource.

The case grows out of the commission’s efforts to stop a nonprofit group from completing construction of an artificial reef off Newport Beach. But it reflects the widely held views of real estate developers and property rights advocates that the commission enjoys virtually dictatorial powers over what can and can’t be built along the coast.

Judge Charles C. Kobayashi ruled this week that the commission, a part of the executive branch, violates the state Constitution’s separation of powers doctrine because two-thirds of its members are appointed by the Legislature.

The judge has yet to issue an official order, but Coastal Commission lawyers are preparing to ask that the ruling be suspended until the issues can be resolved on appeal.

Legal scholars said Thursday that the ruling presents a significant legal challenge to the commission, whose regulations have often delighted environmentalists and infuriated developers.

“It’s a serious challenge to the commission that may well be upheld on appeal,” said Stephen J. Barnett, a professor at UC Berkeley’s Boalt Hall School of Law.

J. Clark Kelso, a professor at McGeorge School of Law, said the case raises a “strong argument” that the commission’s membership violates the Constitution. “It represents a tremendously important issue,” he said.

What makes this case so unusual is that it attacks the commission for precisely what has made it so effective in resisting development pressures: the independence it derives from splitting its appointments three ways.

As it was set up after a 1972 ballot initiative, four members are appointed by the governor, four by the Assembly speaker and four by the Senate Rules Committee. That way, no one person or entity has majority control.

“This is a stunning decision that baffles me and defies comprehension,” said Peter Douglas, the commission’s longtime executive director. If upheld on appeal, he said, “it would create chaos. It would totally destroy California’s coastal protection program.”

Under the Coastal Act, local governments were supposed to draft local coastal plans and take over the job of meting out coastal building permits. The commission was to serve as an appeals board.

But many coastal areas, including the city and county of Los Angeles and Malibu, have yet to complete portions of such programs.

As a result, the commission has ended up as a surrogate local planning agency, presiding over more than 100,000 permits statewide ranging from major developments to homeowners’ requests to add a deck.

Even if Kobayashi’s ruling survives the appeals, lawyers expect that courts would allow the commission’s previous decisions to stand.

Less certain is what would happen to the local coastal plans. They too could be vulnerable to challenge.

The commission would not be disbanded, but it would be unable to make any decisions until it were reconfigured to pass constitutional muster. All pending projects would be put in limbo until there was an entity to approve them.

Ronald Zumbrum, the lawyer who brought the case, said he wants the Legislature to reconstitute the commission to give the governor a majority of the appointments.

That would remake the commission along the lines of most other government agencies, he said, thus reducing its independence and curbing its tendency toward what he calls the commission’s “unfair and arbitrary” practices.

On the other hand, the Legislature could put an initiative on the ballot to change the state Constitution and permit the commission’s makeup to remain unchanged. A citizens initiative could do the same thing.

Zumbrum was a co-founder of the conservative Pacific Legal Foundation, which has tangled frequently with the commission in the past. Now in private practice, he said he has raised the separation of powers arguments in other cases during the last dozen years. This is the first time a judge has agreed with him.

In this case, Zumbrum is representing a nonprofit group called the Marine Forests Society in its long-running battle with the commission over an experimental artificial reef off the coast of Newport Beach, designed to attract more sea life.

The commission denied the group’s permit to build the reef out of old tires, plastic jugs and PVC pipe. When the commission was ready to order the half-built reef removed, the group challenged its authority to make such a decision. They argued the commission is essentially a legislative body improperly making decisions that should be left to the executive branch.

Judge Kobayashi, in his ruling this week, took up the issue noting that there is no case on the books that covers exactly the same point.

In his three-page ruling, he held that “a separation of powers violation occurs when the exercise of the power of one branch of government defeats or materially impairs the authority of another branch.”

He concluded that the Coastal Commission is largely a Legislature-controlled agency making decisions that should be left to the executive branch.

“Purportedly an executive agency, the commission is answerable to no one in the executive [branch],” Kobayashi wrote. “The members are not directly answerable to the voters. The Legislature has retained for itself the power of appointment and dismissal at its pleasure. The Coastal Commission is effectively a legislative agency. Comity and pragmatism cannot save it.”

Lisa Trankley, a deputy attorney general representing the commission, said she is confident that an appeals court will overturn the ruling.

“The Legislature doesn’t control the commission,” she said. She cited a series of checks and balances in selecting the 12-member panel. The Assembly speaker and the Senate Rules Committee are two separate entities that don’t always see eye to eye. Also, half of the commissioners must be local officeholders, drawing from six different parts of the state.

“The Legislature cannot just appoint its friends,” she said.

Joel Reynolds, senior attorney with the Natural Resources Defense Council, said his organization and other environmental groups will join in the legal battle.

“We’re going to jump all over this,” he said. “Mark my words, this ruling will not stand up on appeal.”

Mark Massara, a Sierra Club attorney, dismissed the ruling as “much ado about nothing.”

He noted that the California Coastal Act, formed by the will of the voters, has been challenged repeatedly and repeatedly upheld by the California Supreme Court.

“The Coastal Act is the most popular environmental protection law,” he said. “It is the only law that ensures the vast majority of California residents, the ones who cannot afford to live on the beach, are ensured continued access to it.”