Coastal board is ruled invalid An appeals court says the panel violates the state's constitution. By Gary Delsohn -- Bee Capitol Bureau Published 2:15 a.m. PST Tuesday, December 31, 2002 California's Coastal Commission, which for 30 years has had the power to approve or prohibit development along the state's coastline, was declared unconstitutional Monday by a state appeals court in Sacramento. The 12-member commission was found to violate the California Constitution's separation of powers provision because eight of its 12 members are appointed by and serve at the pleasure of legislative leaders, even though commissioners make mostly executive and judicial decisions. If the ruling by the state's 3rd District Court of Appeal stands, it could wreak havoc on the always controversial process of deciding who gets to build -- and what they get to build -- along 840 miles of California coastline. "If the commission is unconstitutional, it couldn't conduct business," said Peter Douglas, its longtime executive director. "That would create chaos because the law still requires the commission to issue permits for development, to approve amendments to local plans for development," and the ruling could open the door to federal activities that affect the coast, including offshore oil drilling, he said. Douglas said the ruling, which he termed flawed, suggested several legislative solutions, including a relatively straightforward change to fixed-term -- instead of "at-the-pleasure" -- appointments for commissioners. That, presumably, would make them far less beholden to the legislators who gave them their jobs. State Sen. Sheila Kuehl, D-Santa Monica, who is chairwoman of the Senate's Natural Resources and Wildlife Committee, said Democrats would probably introduce legislation to accomplish that "very quickly." Attorney General Bill Lockyer said his office will probably appeal the ruling, which is to take effect in 30 days, to the California Supreme Court. If he does appeal, the order would be stayed until the state's high court ruled. Although the 3rd District court decision didn't directly address whether past decisions by the commission could be overturned as a result of its now being declared unconstitutional, the decision said parties that didn't protest earlier commission actions at the time "may be" precluded from getting any future relief. In his statement, Lockyer also questioned the motives of the attorneys who filed the lawsuit nearly two years ago that led to Monday's ruling. The case stems from a cease-and-desist order by the commission against a nonprofit marine research organization that built a reef from used tires and nylon cord on the ocean floor near Newport Beach. It was part of an experiment by French marine biologist Rudolphe Streichenberger to create new habitats to grow seafood such as mussels and kelp. The Marine Forests Society argued in its original lawsuit that since eight of the 12 Coastal Commission members are appointed by the Senate president pro tem and the Assembly speaker and can be fired by them -- the governor appoints the other four -- the commission doesn't have constitutional authority to issue executive and judicial decisions. "The plaintiffs brought this lawsuit not to make sure the commission is appropriately constructed," Lockyer said in a prepared statement, "but instead to overturn a decision which prevents them from pursuing a private business venture off California's coast. "Despite their belief that the commission made the wrong decision by opposing their project, the plaintiffs were not able to persuade a court to agree with their position. The plaintiffs have not asked for a reconstituted commission; they want coastal protection decommissioned." Lawyers who challenged the legality of the commission, which was created by voter passage of the California Coastal Act in 1972 following years of concern over rapid development along the Pacific Coast, rejoiced at the ruling. "The arbitrary way the California Coastal Commission exercises its combination of legislative, executive and judicial functions and powers serves as the poster boy for abuse of government power," said James Burling, lawyer for the Pacific Legal Foundation. The Sacramento-based foundation, which doesn't believe the government should interfere with the rights of individual property owners, filed briefs attacking the commission's legality. "We are delighted with the late Christmas present delivered today by the 3rd District Court of Appeal," Burling said. Sacramento attorney James Zumbrun, a foundation co-founder who filed the original lawsuit against the commission, said the ruling was also a personal victory because he has been fighting the agency for more than 20 years. A Sacramento Superior Court judge ruled in his favor in May 2001; Monday's ruling resulted from the state's appeal of that decision. "I feel wonderful about it," Zumbrun said. "This flips everything upside down. It's no longer someone's folly. It's a court's solid decision." The Coastal Commission has long been mired in controversy, in part because any significant development along the coast often generates passion and strong feelings from local residents and public officials, and from environmentalists and developers. With hundreds of millions of dollars in upscale and exclusive development at stake, the commission also has come under attack for being susceptible to possible influence peddling from wealthy and politically influential developers. In what was arguably the commission's worst moment, Commissioner Mark L. Nathanson went to prison in 1993 for extorting payments from people seeking permits to build on the Southern California coast. Legislative leaders in the past, as well as governors, also have come under criticism for allegedly trying to exert influence on their appointees. "The Coastal Commission was a totally additional layer of government with total powers that used them in an inconsistent way," Zumbrun said. "They're not accountable to anyone. The public has nowhere to complain or congratulate. The results were an agency that applied its power in ways that were never intended by the Coastal Act." In its ruling, the appellate court concentrated more on how the majority of commissioners can be removed than on how they are appointed. "The flaw is that the unfettered power to remove the majority of the commission's voting members and to replace them with others if they act in a manner disfavored by the (legislative leaders) makes those commission members subservient to the Legislature," the 29-page ruling said. "In a practical sense, this unrestricted power to replace a majority of the commission's voting members, and the presumed desire of those members to avoid being removed from their positions, allows the legislative branch not only to declare the law but also to control the commission's execution of the law and exercise of its quasi-judicial powers." Kuehl said Democrats are likely to move quickly to satisfy the court's concerns over the commission's constitutionality, probably by setting fixed terms so members don't serve at the will of legislative leaders. Lockyer made it clear that, no matter what happens in court, he feels strongly that the commission needs to be preserved. "For nearly 30 years the Coastal Commission has worked to fairly and evenhandedly protect the public trust by ensuring responsible stewardship of our coastline," he said.