| Thursday, April 21, 2005
Tyranny on the left-coastal
Tommy Robinson, the owner of a 12-foot by 10-foot
landlocked slice of empty land in Washington, D.C., has forced
the developers of high-rise luxury apartments to build the
complex around that tiny nondevelopable plot, according to a
front-page story in the March 11-17 issue of Washington's
alternative weekly, City Paper. The accompanying photographs
are wonderful, as construction crews carefully build the
project around Robinson's fenced- off parcel.
The story of Robinson, whose family bought the land in a
tax sale 22 years ago for $64, is a living expression of the
radical notion of property rights embraced by the nation's
founders, who created a government that allowed individuals,
rather than government planners, to make decisions about their
own lives and property.
Robinson's situation might seem quaint in America these
days. Here in California, an unaccountable, dictatorial and
most probably unconstitutional politburo called the California
Coastal Commission can decide - for any reason at all - what
property owners can do within a few miles of the state's
1,000- mile coastline.
We're talking paint colors, fencing, additions, anything.
The commission's powers are measureless, its sympathy for the
traditional rights of property owners nonexistent. Don't
worry, though, this tyranny is exercised in thename of the
The California Supreme Court is now considering whether the
commission is constitutional. Since 2003, two state courts
shocked the political establishment by ruling that the
commission - founded by initiative in 1972 - violates the
state Constitution's separation of powers doctrine.
What took so long to notice?
Separation of powers is a fundamental concept in the
American experiment in freedom and self-government. The
legislature, which makes the laws, is separate from the
executive branch, which interprets and implements the laws,
which is separate from the judicial branch, which adjudicates
disputes over the meaning of those laws.
The thinking is sound here. A free society separates power
so that no one branch of government is unaccountable. There
are checks and balances to, well, check and balance agencies
that become tyrannical. If one agency can write law, implement
law and judge disputes over that law, that agency is a
dictatorship, which should trouble us all.
The Coastal Commission does all those things. It is, as the
courts have argued correctly, an executive agency with a
majority of members appointed by the state Legislature. As the
LA Weekly succinctly described it, "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."
Unfortunately, so many of our fellow citizens are so
zealous for anything that claims to "protect" the coastline
that they are willing to violate any principle and
The technical problem is that a majority of the
appointments to the commission are made by the Legislature,
rather than the governor. The commission is really an
executive agency, and as such should be controlled by the
executive branch. This way, there is at least some measure of
accountability. Voters disgusted by the commission's ongoing
abusescould at least defeat the governor, or pressure him to
appoint more reasonable people to the commission. Under the
current structure, no one is sufficiently accountable to the
The Pacific Legal Foundation, in arguing before the court
that the commission is unconstitutional, wrote: "With the
creation of the commission, one body was vested with an
extraordinary and unprecedented accumulation of power - the
power over the hopes and dreams of millions of California
citizens as well as the many landowners whose property lies
within California's coastline. ... [T]he California Coastal
Commission has been an experiment in an unaccountable
bureaucracy, subservient only to its own will."
The foundation points to Thomas Jefferson, who argued, "The
accumulation of all powers, legislative, executive and
judiciary, in the same hands, whether of one, a few, or many,
and whether hereditary, self-appointed, or elective, may
justly be pronounced the very definition of tyranny."
Unfortunately, putting the commission under the authority
of the governor might fix the functional problem, but wouldn't
fix the deeper problem, namely, that a government agency has
carte blanche powers to bully property owners. To me, even if
the governor could be held accountable for the actions of the
staff and appointees, there's still a problem with the
exercise of the commission's power.
Near the ocean, any land owner is subject to the whims of a
bureaucracy that is run by people who not only misunderstand
the nature of property rights in America today but who are
outwardly hostile to it. As I reported in 2002, Coastal
Commission Executive Director Peter Douglas, in a series of
public speeches since 1999, lambasted courts for upholding the
property rights of individuals, argued that the U.S.
Constitution should be changed to more closely reflect India's
Constitution (which guarantees a high quality of life), and
defended being a social engineer - someone who uses the power
of government to force individuals to change their behavior to
fit environmentally friendly lifestyles, as he interprets
It should surprise no one, then, that the Coastal
Commission has tormented, harassed, bankrupted, abused and
destroyed many a property owner. There was the proposal this
year that property owners at Big Sur camouflage their homes so
boaters don't have to endure the views of development, the
endless delays in permitting at Bolsa Chica and other
developments, which effectively strip valuable property of its
worth, the well-documented, highly reported findings in 1987
that the commission had become a cesspool of
influence-peddling and corruption.
Any agency with that much power will surely be corrupt.
Power corrupts and absolute power corrupts absolutely.
The Register Editorial Page reported in 1997 about the
commission's $470 million suit against a property owner
because he sold two pieces of land separately, rather than
jointly, as the commission had required - an act that the
property owner believed to be retaliation given that he had
successfully sued the agency over another matter.
What individual can stand up to such power?
The commission can impose its world view on property
owners, even if its regulations have nothing to do with
preserving the coastline. In the 1980s, the commission
required that coastal developments earmark 25 percent to 35
percent of the units to "affordable" housing. Last year, the
commission refused to allow Orange County to gain an emergency
permit to remove trees and brush from a creek despite the
potential for flooding. The commission forces property owners
to hand over easements for beach access and critics say that
it routinely shakes down developers, demanding valuable real
estate in exchange for permits.
The commission is by definition a tyranny. It can do as it
pleases, with nothing much to stand in its way. Unfortunately,
most Californians and legislators ardently defend it, which
shows how easy it is to lose our freedoms when no onecares
much about them. Let's hope one area of potential
accountability - the California Supreme Court - will rein in
this rogue agency.
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