The California Coastal Commission: A Case Study in Governmental Assault on Property Rights

Imagine the following:

1. A couple improves their oceanside backyard with tables and benches, a barbecue pit and kitchenette, an outdoor shower and restroom, and a beautiful flower garden. Thirty years later, government officials inspect the yard and declare that the amenities are ugly and out of character with the surrounding area, and that, because the amenities underscore the fact that the yard is private, they have a detrimental psychological effect on the public traversing the adjacent beach. The government orders the couple to clear out their yard and restore it to its “natural” condition, or face stiff penalties.
2. A man purchases a vacant lot along the Pacific coast with the dream of building his residence there, but when he submits his building plans to the local government, he is told that the size and location of his structure would sully boaters’ views of the coastline. The government demands that he reduce the size of his proposed home to one-quarter its planned size and place it in a geologically hazardous corner of the lot.
3. A family that has been cramped for years in a mobile home on their 143-acre ranch wants to build a house large enough to accommodate them, but when they apply for a building permit, the government tells the family that, in exchange for permission to build, they must agree to a perpetual agricultural easement over almost all of their land—an “agreement” that would force the family and future generations to farm the property forever.

Unfortunately, we need not imagine any of these scenarios, because they are true stories of real people suffering at the hands of a real tyrant. Even as you read, these and other such abuses are occurring in California. The tyrant in question is the California Coastal Commission, a state bureaucracy with near-limitless authority over people’s property and, thus, their lives.

Although the Commission’s power to dictate how property owners may use their property is limited to certain regions in California, similar commissions exist in other states, and the Commission’s endeavors provide an ideal case study regarding how and why governmental bodies at all levels across America are increasingly violating property rights. Let us begin our study by looking at the history and nature of the Commission.

The History and Nature of the California Coastal Commission

Prior to the establishment of the Coastal Commission in 1976, cities and counties in California had controlled land use and development along the coast, but in the 1970s California centralized land-use regulation. In 1972, California voters passed a ballot initiative establishing a “temporary” state bureaucracy to oversee development up and down the coast for a trial period of four years.1 In 1976, when this bureaucracy’s tenure ended, the California legislature enacted the Coastal Act and thereby created the Coastal Commission, a permanent state agency dedicated to regulating coastal development.2

The Coastal Act grants the Commission power over a huge swath of land comprising the “coastal zone.” The coastal zone runs the entire thousand-mile length of California (including about 287 miles of shoreline around nine offshore islands), and encompasses about 1.5 million acres of land, reaching from three miles at sea to an inland boundary that varies from a few blocks to several miles. (It does not include the San Francisco Bay area, which is controlled by another agency.)

The Commission pursues three principal objectives. First, it seeks to “[p]rotect, maintain, and where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources.” Second, the Commission works to “[a]ssure orderly, balanced utilization and conservation of coastal zone resources taking into account the social and economic needs of the people of the state.” And third, the Commission pursues the goal of “[m]aximiz[ing] public access to and along the coast and maximiz[ing] public recreational opportunities in the coastal zone.”3

In furtherance of this agenda, the Coastal Act gives the Commission authority over all “development” in the coastal zone.4 The Commission interprets the term “development” broadly to include any activity having any perceivable impact on the “ecosystem.”5 In the eyes of the Commission, it has the power to regulate practically any human activity. Legal challenges to the Commission’s interpretation of the term “development,” and therefore of the scope of its jurisdiction, have met with little success in the courts.6

The Commission exercises its control over development as judge, law enforcer, and legislator. It approves and denies permit applications, issues cease and desist orders (backed by heavy civil penalties) against Coastal Act violators, and coauthors with coastal cities and counties the local land-use laws applicable in their respective jurisdictions. Thus, although a coastal municipality may be primarily responsible for drafting its “local coastal program”—comprised of a local land-use plan and ordinances that embody the Coastal Act’s policies—it does so in close cooperation with the Commission, which must certify the program before it becomes law. Moreover, even where a certified local coastal program exists, the Coastal Act grants the Commission limited appellate power in certain circumstances to review local permitting decisions made pursuant to the program.

The regulatory scheme established by the Coastal Act guarantees that the Commission will violate property rights. The right to property is the right to freely acquire, use, and dispose of the product of one’s efforts, including any goods acquired via trade. If a person builds a chair or a business, or purchases a car or a yacht, that chair, business, car, or yacht is his to use or dispose of as he sees fit—so long as he does not violate the rights of others. According to this basic principle embodied in the American founding, a landowner has a right to use and dispose of the land he has acquired by his effort, free from force (or the threat of force) by the government.

The Coastal Act violates and authorizes the daily violation of the property rights of coastal landowners. The Act assumes that landowners have, at most, mere “interests” in their land, not rights. These interests, according to the Act, are subservient to the needs and desires of “society” for open space, beach access, ocean views, plant and animal protection, and other “values” that the Commission can pursue only by the use of force against property owners.

The Act effectively collectivizes “ownership” of all the property in the coastal zone on the grounds that this zone is “a distinct and valuable natural resource of vital and enduring interest to all the people” and that its “permanent protection” is “a paramount concern to present and future residents of the state and nation.”7 To that end, all property within the coastal zone is at the service of “the economic and social well-being of the people of this state and especially to working persons employed within the coastal zone.”8

The Coastal Commission does not recognize a property owner’s right to build a home of his choosing on his land. He must seek the Commission’s permission, then submit to its demands about the size, color, and precise location of the home. The Commission does not recognize a property owner’s right to protect his bluff-top home from beach erosion by, for example, installing a seawall. He must seek the Commission’s permission and—if fortunate enough to obtain approval—likely submit to its demand for money as compensation to “society” for the loss of sand and the sullied beach views that allegedly accompany seawalls. The Commission does not recognize a property owner’s right to install a fence, a tree, a picnic table, or anything else on his land without its prior approval and inevitably the satisfaction of a laundry list of conditions. Because use or development of coastal property without a development permit results in heavy fines and possible confiscation of the property, owners have little choice but to submit to the will of the Commission.

The awesome task of deciding the many permit applications appeals lies with the Commission’s twelve voting members, appointed by the governor and legislative leaders. With their votes at public hearings scheduled every month, commissioners decide the fates of coastal property owners who want to use and develop their land. But because these political appointees generally have full-time obligations outside the Commission, they rely heavily upon the research and recommendations of the Commission’s executive director—appointed by and serving at the pleasure of the agency—and his full-time career staff of analysts, enforcement officers, and lawyers. To understand the Commission, we must understand the roles the executive director and his staff play.

The Coastal Act makes the executive director responsible for the Commission’s day-to-day operations, from investigating and prosecuting violations of the statute, to making recommendations to commissioners about whether a property owner should be permitted to carry out his project on his land. And, because the executive director is chosen by reference to his ideological commitment to the Commission’s mission, the views of the current executive director, Peter Douglas, provide a clear window into the core of the Commission.

Douglas, who has led the agency’s staff for more than twenty-five years, makes no secret of his antipathy for property rights and his vision for a humanless California coast. In his own words, Douglas seeks “landscapes and seascapes uncluttered by the doings of man”—a dream made possible by the “[environmentalists’] way of looking at the world and ourselves, philosophy, and dedication to service in the best interest of planet Earth and the life She supports.”9 Proclaiming, “Socialist is not a nasty word in my dictionary,”10 Douglas has—in that political tradition—rebuked those owners who “believe that because they own the property, they own everything on it, so they can [do] with it what they want.”11 For Douglas, the evil that the Commission seeks to combat is the “self-interest” of private property owners who want to use, develop, and enjoy their land at the “expense of community values.”12

Now that we can see why the Commission routinely violates the rights of property owners in the coastal zone, let us turn to how the Commission does so. We will begin by taking a closer look at the cases mentioned at the beginning of this article.

How the Commission Violates Property Rights

George and Sharlee McNamee own a home on the top of an oceanfront bluff in Corona del Mar. A stairway leads from the top of the bluff down to an unfenced private beach. On this private beach, the McNamees maintain several amenities, including a shed, barbecue, lockers, patio tables and benches, a palapa, and a small flower garden. Most of these amenities have been on the property since the 1960s—before the Commission came into existence and before the McNamees moved into their home in 1977. Between the McNamees’ private beach and the ocean lies a wide strip of state-owned beach that is regularly used by the public.

In 2001, the Commission—on a tip from a neighbor—accused the McNamees of placing the beach amenities on their property without a coastal development permit. The Commission issued a cease and desist order requiring the couple to uproot all the amenities and return their private beach to its original state—that is, to an area with only native vegetation (wild ice plant). In addition to contesting the Commission’s claim that their amenities required a permit, the McNamees sought an “after-the-fact” permit to protect their right to keep the amenities on their private beach. The Commission denied their permit application.13

The Commission identified two principal justifications for this denial. First, the Commission did not like the aesthetics of the amenities. As the Commission put it, the McNamees’ amenities “alter natural landforms, do not preserve scenic views and [are] not visually compatible with the character of the surrounding areas.”14 The McNamees’ lush flower garden, the Commission declared, wrongfully displaced the vegetation that existed naturally in their yard.

Second, the Commission said the amenities create the impression that the entire beach area—including the public beach—is private, thus making beachgoers feel uncomfortable about using the public beach. As the Commission put it:

These items are imposing structural features that affect public use of the beach creating a perception of privatization of the beach area. It creates a sense of private ownership of the public beach by the placement on [sic] these items on the beach. . . . In addition, signs are posted that state “George’s Beach” and “Private Shower” which enhances the perception of privatization in the area.15

Of course, the “perception” of private ownership is accurate: The portion of the beach on which the amenities rest is private. The McNamees own it. Consequently, according to the principle of property rights, the McNamees have a right to use that portion of the beach as they see fit—including, if they so choose, by posting signs stating truths such as “George’s Beach” and “Private Shower.” If the government is concerned with the public’s perception of where the public beach begins and ends, then the government should post signs specifying those boundaries. But the Commission prefers to violate the McNamees’ property rights.

The McNamees sued the Commission, arguing that it had no power to require a permit for the amenities and that, even if it did, they were entitled to a permit. The trial judge ruled in favor of the Commission, and the McNamees have appealed that decision. Fortunately, the court of appeals has stayed the effect of the Commission’s cease and desist order pending resolution of the litigation, so the McNamees can continue to enjoy their amenities for the time being. But if the Commission has its way in court, the McNamees will be forced to remove their beach amenities from their yard and restore it to its “natural” condition—at tremendous financial and emotional cost to them—for the aesthetic and psychological sake of those who do not own the property.

In addition to dictating what property owners may place in their yards, the Commission dictates where on their properties owners may construct their homes. Consider the plight of Dennis Schneider.

Schneider wanted to build his dream home on his vacant beachfront lot in San Luis Obispo. After he obtained local building permits, two commissioners demanded that the Commission intervene to modify the size of Schneider’s proposed home and to specify its permissible location on his property. The Commission ordered Schneider to reduce his home to one-quarter of its proposed size and place it on a corner of his lot that geologists deem hazardous. The reason? Schneider’s proposed home would violate the “right” of the occasional boater to enjoy unmarred views of the coastline.16

Schneider sued the Commission, on the grounds that it went beyond its statutory powers. The Coastal Act authorizes the Commission to “protect” the public’s seaward views against development, but it does not authorize the Commission to “protect” the public’s or any other group’s landward views from the sea.17 Fortunately, although the trial court deferred to the Commission’s strained interpretation of the Coastal Act and upheld its decision, the appeals court, in a rare show of robust judicial review of the Commission’s action, reversed in favor of Schneider, holding:

The Coastal Commission has subordinated a landowner’s real property rights to the occasional boater’s “right to a view” of the coastline. If and when the California Legislature expressly codifies a boater’s “right to a view” of the coastline, the courts can and will lawfully give it credence. But the Coastal Commission is not empowered to legislate a boater’s “right to a view” of the coastline.18

Granted, the court’s reference to the alleged permissibility of the California legislature in the future to codify “a boater’s ‘right to a view’” in the Coastal Act detracts from the force of its ruling. And, of course, the very existence of the Coastal Act violates property rights by subordinating those rights to the wishes of the “public.” But the Schneider decision challenged the Commission’s statutory authority—its power under the Coastal Act—to violate Schneider’s right to build on his property where he chooses. And the court’s decision to side with Schneider on this issue is to be lauded for the reprieve that it is.

As the McNamee and Schneider cases show, the Commission uses its power to dictate what landowners may put and where they may build on their properties—in order to “protect” the interests of those who neither own the properties in question nor would be physically harmed by the proposed uses of those properties.

But there is more.

The Commission also uses its power to extort money, land—and, as the next case shows, even indentured servitude—from property owners seeking permission to build on their land.

In 1997, Dan and Denise Sterling purchased 143 acres of land near the coast in El Granada, in San Mateo County. Given its topography, nearly all the property is unsuitable for agricultural use, though a portion of it has supported minor cattle grazing. Since the Sterlings purchased the property, on which they have consistently grazed about ten cattle, they and their four children have lived in a small mobile home. They planned for the mobile home to be temporary housing until they could acquire the permits necessary to build a family residence there. They submitted a building permit application for construction of a 6,546-square-foot home and related infrastructure to be located on a 9,515-square-foot site of the property. The county approved their application under its Commission-certified local coastal program.

As mentioned above, however, the Coastal Act grants the Commission appellate power in certain circumstances to review local permitting decisions made pursuant to a local coastal program. Where the Commission’s appellate jurisdiction exists, any interested person or group—or any two commissioners—may appeal a locally approved permit for full review by the Commission. In this case, two commissioners filed an appeal of the permit granted the Sterlings by the county.

On appeal, the Commission gave the Sterlings permission to build their home—but only on the condition that they dedicate an “agricultural use” easement on all of the property outside the proposed 9,515-square-foot building site. If the Sterlings “agreed” to this extortion, they (and any subsequent owners of the property) would become indentured servants, forced to “maintain in active agricultural use” more than 142 of the 143 acres either by farming it themselves or by leasing the land to a third party who would farm it for them. Either way, the Sterlings would have to dedicate the easement to a public agency or private association—approved by the Commission—that would manage and monitor the use of the land. Moreover, the Commission’s executive director would be entitled to demand at any time that the Sterlings produce a report confirming compliance with the easement. The easement would not only impose farming and other obligations on the Sterlings; it would also prevent future development of any kind—whether a barn, a second home, or any other structure—on the encumbered portion of the land.19

The Sterlings have sued the Commission, arguing (among other things) that the easement condition constitutes an unlawful taking of private property under the United States and California constitutions. The law of takings prohibits government from imposing any condition on a building permit that does not bear a constitutionally sufficient connection to the impact of the proposed project. As the United States Supreme Court has observed, such a condition is an “out-and-out plan of extortion” by which the government takes advantage of a property owner’s need for a permit to obtain from him something of value to which the government otherwise is not entitled.

The Commission has failed to demonstrate any connection between the Sterlings’ proposed home and a legal obligation to farm. The Sterlings’ construction would not in any way reduce the amount of farming on their property; they plan to build on an area of their land where no farming has ever occurred. Nevertheless, in exchange for permission to use their property as they see fit (which the Sterlings in fact have a moral right to do), the Commission is forcing the Sterlings to relinquish their right to use and enjoy more than 142 of their 143 acres. Adding insult to injury, the Commission seeks to force the family to farm the portion of the property that is subject to the easement. The Sterlings’ lawsuit—pending before the state trial court—will seek to establish the unconstitutionality of the Commission’s permit condition.

Of course, a property owner’s court victory against the Commission is much like the freedom obtained by a wrongly convicted man when the government discovers its mistake and releases him after years in prison: It does nothing to remedy the time lost, money spent, effort expended, and anguish suffered in his fight against the government. And, in the property owner’s case, it does nothing to redress the underlying problem: the requirement that a landowner seek permission from the government to exercise his moral right to use and develop his property as he chooses. So long as he is required to have a permit in order to use or develop his land, the property owner’s rights are under continued assault.

And so long as the California Coastal Commission exists, no Californian’s rights are secure, nor are the rights of other Americans in other jurisdictions.

The Commission sets a precedent for other states to establish—as some have—similarly illegitimate bureaucracies dictating how landowners may use their property. Government “oversight” of land use and development exists in every coastal state in the country. (Governmental violations of property rights are on the rise even in non-coastal jurisdictions.) All such rights violations are based on the same false assertions peddled by the Commission: the notion that property owners do not really own their land, and that their right to use and develop their property is subject to the “needs” of the public or some politically favored segment thereof.

In Texas, for example, property owners with land along the coast are being told by state officials that the boundary separating their property from a public beach is to be dictated by the current position of certain vegetation.20 As the vegetation line moves—say, in the wake of a hurricane—so does the property line. Thus, a coastal property owner can lose a huge swath of his land to the state overnight—and even lose his home, if the vegetation line moves landward of it. The Texas officials’ “rolling easement” policy is being challenged in the courts on the grounds that it effects an unlawful seizure and taking of private property.21

Other governments committing such egregious rights violations include those of Santa Fe, New Mexico22 and Maui, Hawaii.23 Like other municipal governments around the country, these governments have passed laws forcing property owners who wish to build residential units for sale or rent to designate a percentage of those units as “affordable housing.” The property owners are required to sell or rent the “affordable housing” units at below-market prices, so that low-income individuals have access to them. These laws, too, violate the rights of owners to build on and dispose of their properties as they wish.

Fortunately, some property owners in a number of jurisdictions are challenging these rights-violating laws in the courts. Unfortunately, even if they prevail, the counties will have succeeded in forcing them to expend their time and money in a protracted effort to protect themselves against the governmental assault.

How to Stop the Assault

We have seen how the California Coastal Commission systematically violates the rights of coastal landowners, and that the Commission is not alone in such rights-violating efforts. Governments and similar commissions across the United States—some taking their cues from the Coastal Commission—have declared war on property rights. How can advocates of property rights win this war? How can we restore government to its proper role of protecting and not violating property rights?

The fight for property rights must be waged on three fronts:

1. We who are directly affected by these infringements of our inalienable property rights must challenge rights-violating institutions (such as the Commission) and, when possible, the laws that created them (such as the Coastal Act) in the courts of law. Litigation can set important legal precedents that restrain, reduce, and even eliminate aspects of governments’ power to violate rights. (Litigation can be expensive, but fortunately, for those of modest means, nonprofit legal-defense organizations such as the Pacific Legal Foundation [which specializes in litigation against the Commission] and the Institute for Justice represent property owners for free in cases with the most promise of establishing rights-respecting law.)24
2. We must take principled political and grassroots action. On the political front, we must support only those candidates for executive, legislative, or judicial office who promise to and actually do defend property rights. And we must reject or vote out those candidates or officials who are oblivious to or declared enemies of those rights. At the grassroots level, we should organize campaigns around issues that can effect immediate change. For example, if you live in California, you could organize a campaign urging Californians to call or write their assemblyman or senator and urge him or her to introduce and enact a bill to repeal the Coastal Act and abolish the Commission. If you live elsewhere, you could organize a similar campaign calling for the abolition of similar laws and commissions in your area.Legal and political activism offers important, albeit short-term, solutions to the problem of rights-violating institutions. It buys time to wage a battle on the third and most important front.
3. We must work to educate Americans about what property rights are, what philosophical foundation gives rise to and supports them, and why government morally may not violate property rights for any reason. Only when substantially more Americans grasp the absolute, moral nature of property rights will they support en masse genuinely rights-respecting politicians, institutions, and laws. Absent an educational and cultural renaissance of this kind, rights-violating laws such as the Coastal Act will for the most part remain on the books, and tyrannical institutions such as the Commission will continue trampling the rights and lives of Americans. Intermittent victories may surface in the courts via case-by-case litigation and the occasional rights-friendly judge, but without educational and thus cultural change, Americans will, by and large, continue losing control over their property.

If you want to move America in the direction of a rights-respecting republic, take whatever actions are appropriate given your circumstances. If your property is under direct assault and you have, or are able to secure, the means, litigate against the assaulting laws and government agencies. If you have the time and inclination, organize campaigns to flood representatives’ mailboxes with calls for abolishing such evils. Most importantly, whatever your circumstances, help educate Americans regarding the absolute and moral nature of property rights by supporting the organizations dedicated to this cause, such as the Ayn Rand Center for Individual Rights and The Objective Standard. The one thing tyrants cannot withstand is an educated, morally certain citizenry. Let us proceed to generate just that.

About Paul J. Beard III

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