Unelected Coastal Commission violates property rights while keeping California thirsty

Marc Joffe

The California Coastal Commission is interfering with efforts by two Encinitas homeowners to rebuild a seawall and stairs on their ocean property. The seawall and stairway had been in place for decades, but were severely damaged in a 2010 storm. Despite obtaining approval from the City of Encinitas to make the repairs, the Coastal Commission intervened, resulting in years of costly litigation. It is just one of many instances in which unelected California bureaucracies limiting property rights and delaying needed infrastructure development along the Pacific Coast.

The Commission, which has the power to regulate development along California’s 1100-mile coast, denied the homeowners permission to replace the stairway, thus impeding their access to the shore.  The Commission said the seawall could be rebuilt, but only under a permit that would expire in 20 years, at which time the owners would have to apply for a new permit or remove the structure. The combined effect of these two decisions was a reduction in the value of the oceanfront properties.

The two property owners, Tom Frick and Barbara Lynch, litigated the case in San Diego Superior Court, spending close to $200,000 to defend their rights. Although the trial court ruled in their favor, an appellate court overturned that decision. To pursue the case further, Frick and Lynch’s heir, Jennifer Lynch, turned to the Pacific Legal Foundation, which presented their case on May 4 in California Supreme Court on a pro bono basis.

“The Coastal Commission’s treatment of these homeowners is part of an anti-seawall agenda that the agency has been imposing up and down the coast,” said John Groen, PLF’s Executive Vice President and General Counsel, who argued the case before the California Supreme Court.  “This case offers the state Supreme Court an opportunity to affirm the rule of law against an agenda-driven bureaucracy.  Coastal homeowners have a statutory and constitutional right to protect the integrity of their property, and the commission’s subversion of that right must end.”

Further up the coast, the Commission has been blocking construction of a desalination plant in Huntington Beach. The plant, which would have greatly relieved the impact of California’s recent drought, has been stuck in the approval process since 1998.

In 2013, the Commission declined to approve the plant because its intakes would absorb too many plankton, fish eggs and larvae. In 2015, plant sponsor Poseidon Water revised its design to include one millimeter screens that would prevent most of the sea-life from being captured, yet the company is still waiting for commission approval.

Late last year, Commission staffer Tom Luster linked seawater intake valves to a 75% reduction in the volume of plankton in Southern California waters since the 1970s. However, the Scripps Institution Researchers cited by Luster rebuked him for making this connection; they attribute the decline in Southern California plankton to climactic factors. The fact that Luster was willing to spin scientific research to indict desalination suggests that the Commission will continue to impede this technology.

Last month, Poseidon hired former Senator Barbara Boxer and former California Assembly Speaker Fabian Nunez to lobby the Coastal Commission and other regulators on behalf of the project.  Both Boxer and Nunez have strong environmental credentials, so the fact that they agreed to represent Poseidon is significant since the potential reputational damage they face could equal or exceed the fees they can expect to receive.

Although we don’t know how much Poseidon is paying Boxer and Nunez, we do know that the company has spent over $1.6 million on lobbying and campaign contributions in its efforts to gain approval for desalination plants in Carlsbad and Huntington Beach (the Carlsbad plant went on line in late 2015). While a large company may be able to justify spending hundreds of thousands of dollars to wrestle a fair result from the Coastal Commission, individual property owners rarely have the necessary resources. Unless they can get pro bono help from the likes of Pacific Legal Foundation, their plans to maintain and improve their coastal properties are subject to the Commission’s bureaucratic veto.

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