Questing for Atlantis

Brian Doherty on the California Coastal Commission:

In April 2007, feeling aggrieved by the notice of violation hanging over their property, which was due mostly to the crime of moving dirt off a poorly maintained old paved road so they could access a higher point on their land to do organic gardening, Norris and Gilder sued the CCC for effectively taking their private property without due compensation, among other complaints.

This taking allegation is something the CCC should be familiar with. It lost such a case before the U.S. Supreme Court in 1987, Nollan v. California Coastal Commission. That case specifically dealt with the CCC demanding beach access easements in exchange for building permits, an act that Justice Antonin Scalia called “out and out…extortion” in his opinion.

However, as Oshen has found, and as lawyers and citizens who’ve grappled with the CCC have since agreed, outside of the very specific facts at issue in Nollan, the CCC hasn’t let that Supreme Court loss cramp its style. It continues to try to make development permits (which can cover such things as putting up “no trespassing” signs or moving a clump of dirt) dependent on things like trail access easements or other demands—including, in a recent case being fought by the Pacific Legal Foundation, a demand that permit seekers dedicate most of their land to active farming, forever.

As CCC Executive Director Douglas humbly told Oshen on-camera in the film (along with describing himself as a “radical pagan”), his unelected commission (whose members are appointed by the governor and leaders of the two state houses) doesn’t have the power of eminent domain. All it has is the power to regulate, plan, and enforce restrictions on pretty much any action involving land within five miles of the coast, which means it doesn’t really need the power of eminent domain at all. It can largely control the land anyway. This also makes the CCC a walking separation of powers nightmare. Indeed, in 2002 the state’s 3rd Circuit Court of Appeals struck down the CCC’s structure on separation of powers grounds, though that decision was more about how the commission was appointed than how it exercised power. That decision was later overturned by the state Supreme Court.

That’s just an excerpt. I definitely recommend reading the rest. Doherty details how Richard Oshen has spent the last four years making a documentary on the CCC and its gross abuse of powers to terrorize landowners in its jurisdiction.

Knowing the documentary is coming out, the agency is now demanding to see all of Oshen’s footage and the documentary itself (before its release), while its head is trying to weasel out of his agreement to be in the movie. Admirably, Oshen is standing firm against the absurd requests.

The California legislature could stand to learn from his opposition to the CCC:

Even as it’s compelling Oshen to kick up his footage, a bill is now being considered in the California state legislature that will give the CCC independent power to levy $5,000-$50,000 “administrative civil penalties” (in addition to any other fines or penalties) for violations of its ukases without having to get a court involved. The agency could then use that money for…more enforcement actions. Another bill would dictate that anyone with an unresolved CCC violation order over their heads could not submit an application for any other development permit from the CCC, on that land or any contiguous land.

I guess the only real great part of the story is that this is in California and not here in Maryland. Then again, maybe I shouldn’t be posting this, lest I give the Sentinel Whispers or the Kent Island Defense League any ideas.