When it comes to regulatory abuse of ordinary citizens, not even the pre-Trump EPA or the pre-Trump U.S. Fish and Wildlife Service – at their worst – were in a league with the infamous California Coastal Commission (CCC).
Indeed, the Trump administration — by scuttling the monstrosity that was the Obama-era “Waters of the United States” (WOTUS) rule, and reforming enforcement of the Endangere3d Species Act – is keeping its pledge to rein in out-of-control federal bureaucrats.
Meanwhile, the CCC – unaccountable to anyone and unperturbed by the U.S. Constitution – continues to steamroll property owners with reckless abandon.
In its latest depredation, the CCC has fined Warren and Henny Lent $4,185 million for blocking public access to the beach at their oceanfront home in Malibu. Problem is, there is no access to block. In 2002, the Lents purchased their home, which came with a fence, gate, stairway, and other innocuous features of a typical family home, in a five-foot wide public access way. The couple kept the features in place, because there was nothing in the title papers saying they were not permitted or otherwise illegal.
What’s more, the “access way” has never been and is not currently open to the public – and with good reason. There is a precipitous drop from the street down to the beach, interrupted by a massive storm drain installed by the county. The access way is simply not safe for the public to use, which explains why previous owners of the property kept the fence and gate in place. It was a matter of public safety. The relevant easement agencies would need to make substantial improvements before pedestrians could safely use the access way.
Property Owners Denied Due Process
None of this matters to the CCC. In 2016, the CCC slapped the couple with the $4-plus fine. There was, of course, a hearing, but it was a sham enabled by Public Resources Code 30218. This 2014 amendment to California’s Coastal Act creates a rigged game in which property owners caught in the crosshairs of the CCC are affective denied due process.
As pointed out by the Pacific Legal Foundation (PLF), which is now representing the Lents, section 30218 dispenses the CCC from having to go to a neutral court of law before levying penalties on hapless property owners. PLF’s Damien Schiff says the section is “constitutionally infirm because it requires the commission to use only the lax standards and rules of procedure and evidence that are typically employed in run-of-the-mill land-use hearings.”
“But an administrative proceeding that can result in a multimillion penalty is no normal land-use hearing,” Schiff notes. “In effect, section 30821 creates a quasi-criminal enforcement action.”
“Regulatory Bounty Hunting”
PLF further argues that section 30821 creates an “unconstitutional biased adjudicator.” The statute gives the CCC the power to fine, and it directs all fine revenue to be deposited in the Violation Remediation Account, which supports the public access activities of the Coastal Act. In other words, section 30821 gives the CCC the power to penalize property owners and use the profits to further its agenda. “This is a form of regulatory bounty hunting,” PLF’s Schiff says.
What’s more, PLF contends that the Lents’ $4,185 million penalty violates state and federal prohibitions against excessive or arbitrary fines. “The Lents weren’t fined for anything they had done, but because they in good faith allowed pre-existing, normal residential fixtures to remain in place,” PLF argues. “Far from hurting the public health and welfare, the Lents actually furthered those interests by keeping in place a fence and gate that helped to prevent pedestrians from falling seven feet or more down to the unopened public access way.”
The case, Lent v. California Coastal Commission, will proceed with the filing of briefs with a state appeals court into the summer, with a hearing expected next year. It is yet another example of property owners being dragged through the mud by agenda-driven bureaucrats with nothing else better to do than throw their weight around.