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The California Coastal Commission - Unrepentant Sinners

Thursday, April 30th, 2009

The Unrepentant Sins Of The California Coastal Commission
by Ronald A. Zumbrun
Thursday, 12 February 2009

What do the former mayors of Malibu and San Diego, a former member of the California Coastal Commission, and a former captain of the County of Los Angeles Fire Department have in common? In a soon-to-be released documentary film entitled “Sins of Commission”, these former public servants, along with several other aggrieved property owners, describe in painful detail the transformation of the California Coastal Commission as a protector of the environment into a radical bureaucratic monster.

Those who view the Coastal Commission as integral to the battle to protect the coast from “big developers” will be surprised to learn that it typically chooses to pursue fines against individual property owners who lack the resources to fight back.

Consider the plight of Kathleen Kenny, who was fined by the Coastal Commission for building a 742 square-foot cottage on an existing, developed pad in Topanga Canyon, California.

Not coincidentally, the California Attorney General’s Office, which represents the Coastal Commission, imposed the fines and served a lawsuit against Ms. Kenny the same day that a County of Los Angeles building inspector and two sheriff’s deputies showed up at her front door with a search warrant. The building inspector, Grant Lawseth, was miffed when Ms. Kenny published an 8-page newsletter to 3,000 Topanga Canyon residents accusing him of seeking bribes in exchange for Building Department approval.

In an amazing turn of events, a federal jury in 1997 found that Mr. Lawseth had engaged in a continued practice of racketeering and awarded damages to Ms. Kenny under the Federal Racketeering and Corrupt Organization statutes.

Despite Ms. Kenny’s recent death and the astonishing jury verdict, the Coastal Commission’s fine is still on the books against her partner, Arthur Starz, which now exceeds over $2 million.

Sadly, the practice of government extortion of private property owners is not unique to Ms. Kenny. Shortly after the Legislature designated the Coastal Commission as a permanent bureaucratic entity in 1976, the Coastal Commission embarked on an expressed policy of forcing private property owners to relinquish portions of their land to the state in exchange for a building permit––a tactic which the United States Supreme Court in 1987 labeled “an out-and-out plan of extortion” in Nollan v. California Coastal Commission.

Ignoring the high court’s rebuff, the Coastal Commission continues to engage in extortionist tactics. One of the Coastal Commission’s ongoing policy objectives is the creation of hiking trails throughout the Santa Monica Mountains. There is nothing wrong in principle with this policy objective. After all, the state can simply purchase these trails from private property owners, right? Wrong. Instead of paying for the trails, the Coastal Commission has in place the policy of requiring property owners to relinquish a portion of their land for trails in exchange for a building permit––a policy confirmed by Peter Douglas, the Executive Director of the Coastal Commission, in the above-mentioned documentary “Sins of Commission.”

In Nollan v. California Coastal Commission, the Supreme Court held that there must be damage caused by the permit seeker and a nexus or connection to the exaction. Thus, if a home is to be placed on a public path, the permit seeker can be required to dedicate a comparable path to the public. In Dolan v. City of Tigard, the high court clarified the rule: there must be a rough proportionality between the harm to the public and the exaction imposed on the property owner.

The Coastal Commission’s policy willfully ignores a fundamental attribute of private property ownership: the right to exclude others. The Supreme Court has characterized this right as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” The Coastal Commission deprives property owners of this “essential stick in the bundle of rights” by its extortionist land dedication requirements.

Indeed, the Coastal Commission has even attempted to deprive a property owner of the right to place a “no trespassing” sign on his property, contending that placement of the sign is unpermitted “development.” Thankfully, the California Court of Appeal in LT-WR, L.L.C. v. California Coastal Commission restored sanity and confirmed that Californians still have the right to place “no trespassing” signs on their own property and do not need a permit from the Coastal Commission to do so, notwithstanding the Coastal Commission’s contention that this could potentially interfere with public prescriptive rights. It is disconcerting, to say the least, that the Coastal Commission, backed by tax dollars and the Attorney General’s Office, would take such a position in a court of law in the first place.

Consider also the Coastal Commission’s decision to label chaparral vegetation in the Santa Monica Mountains to be an environmentally sensitive habitat area (ESHA)––a decision without legislative oversight and based solely on the opinion of one so-called “expert” handpicked by the Coastal Commission. This label drastically curtails a property owner’s ability to productively use private property. Even a self-sustaining organic garden would be a prohibited use without a permit. Most of the land in the Santa Monica Mountains contains chaparral. Unfortunately, chaparral also is a primary source of fuel for fires. The ESHA designation precludes fire departments and local governmental entities from adopting their own fire protection measures and prevents private property owners from clearing brush as a buffer in the event of fire. Chaparral has been a major contributor to the recent fires which have plagued the state. Local residents and their governments must now live with a high risk of fires.

And then there is the ongoing plight of Dan Norris and Peggy Gilder, who purchased raw land in Topanga Canyon––not to live on, but to organically garden and hike with their children. The land came with an old, preexisting road, which over time had become obstructed with debris, rocks, and foliage. It never occurred to Norris and Gilder that the Coastal Commission would require a permit to clear a preexisting road to ensure access to private property. After receiving a notice of violation from the Coastal Commission for unpermitted “development” in an ESHA, the Coastal Commission arranged for an inspection of the property. Norris and Gilder wanted to film the inspection to protect their rights, but the Coastal Commission objected to being filmed. Without notice to Norris and Gilder and their legal counsel, the Coastal Commission then sought a civil inspection warrant from a Los Angeles County Superior Court judge to allow the inspection to occur without filming and to allow forcible entry onto the property. Sensing the constitutional implication of precluding a private property owner from filming a government inspection on private property, the judge requested briefing on the issue. Rather than run the risk of an adverse ruling, the Coastal Commission withdrew its request for the warrant.

The California Legislature bears much of the responsibility for the Coastal Commission’s flagrant abuses of power. It created an entity that acts as a legislator (as in the ESHA definition), adjudicator (it hears appeals brought by aggrieved property owners), and executive administrator (imposing fines). The English historian Lord Acton famously remarked that “absolute power corrupts absolutely,” and the Coastal Commission is a prime example. The Coastal Commission’s treatment of Ms. Kenny and numerous others has nothing to do with environmentalism, and everything to do with selective intimidation and violation of basic civil liberties.

Backed by the power of the state’s v’s Office, what chance do private property owners in California have of fighting back? Very little. The vast majority of private property owners are just like Ms. Kenny, who desire only a residence to live in and do not have the hundreds of thousands of dollars needed to pay for attorneys to battle the state. In short, only the people through their legislative representatives can make the changes necessary to restore both environmental protection and freedom of property ownership in California.

In the documentary film, Peter Douglas takes delight in describing himself as a “radical pagan heretic” and characterizes property owners who assert their constitutional rights in court as “jihadists.” It is submitted that no one, radical pagan or otherwise, should be acting as judge, jury and executioner over the people of California.

*Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm. Timothy V. Kassouni, Legal Director with the firm, substantially assisted in the preparation of this column and also is lead counsel for Dan Norris and Peggy Gilder. You can learn more about The Zumbrun Law Firm at http://www.zumbrunlaw.com/. “Sins of Commission” is produced by Richard Oshen of Pacific Coast Highway Productions. See http://www.sinsofcommission.com/ for more information.

The Edge of Reality

Saturday, March 21st, 2009

THE EDGE BUYS LAND IN MALIBU

When I first read “The Edge of Destruction” by CRAIG STEPHENS in LA WEEKLY, the first thing that hit me was the provocative headline.  Mr. Stephens knows how to sell a story. He knows if the headline read: Malibu Welcomes The Edge or The Edge Brings Much Needed Jobs To Community or The Edge Contributes Handsomely To Property Taxes In Malibu - no one would notice.

But Mr. Stephen’s headline identifies a huge problem in Coastal California and the rest of America. One that I call DA-IS-NA-ID. Do As I Say, Not As I Do.

The other thing I noticed is that the people complaining already live there, and obviously built something themselves or moved into a house someone else built.

I wonder if they were subject to the same kind of scrutiny and contempt they so freely demonstrate for The Edge. Their home affected the environment too. So what is the underlying issue? An Archery Range?

Had a lot of fun at Malibu Mountain Archery Range. Put a bunch of holes in the paper targets. Liked to see all the Boy Scouts out there camping on a weekend. All the kids learning how to use a bow and arrow, cook, camp out and hike. Glad someone is exposing the no good x&%!@ that would throw out a charity

There is plenty of land already preserved in the State of California. Out of California’s 99,882.700 Acres 42,288,380 is already owned by the state or the feds for a total of 42. 36% 

That’s a lot of acres of public land available for archery, not to mention the Archery club could potentially find a better spot somewhere else in the huge, already well preserved, Santa Monica Mountains. (Source: www.nrcm.org/documents/publiclandownership.pdf).  What is the real issue with The Edge’s new home? What It really boils down to is old-fashioned American prejudice.

 DA-IS-NA-ID

I read down the list of comments. One after another, people just grumble, spout and spew, but one thing is for certain…they are pissed! So pissed,  they threaten not to buy the latest U2 album. 

Reminds me of frothing folk who burned their John Lennon records way back when for saying ” the Beatles were bigger than Jesus.”  The times, they have have sure changed.

People now refuse to buy a record because someone wants to build home in their neighborhood.

This has nothing to do with whether these projects/Obama are good or bad, it has to do with U2’s hypocrisy. So am I stunned to find out that they don’t live up to the same environmental standards that they demand from the little guy? Nope! We are supposed walk to work; they ride in private his and her jets

How did Obama get into this? Is he moving in too? Please tell me which U2 record is calling people e to walk to work? Also please tell me whose environmental standards are we supposed to live up to? Yours? 

Are we all now socialist workers of the world?

Have we hung up our American individuality to don identical black burkas and lock step to work? Are we now supposed to look over our shoulders or peer out from behind dark curtains to see what the other is doing, rather than pay attention to ourselves? 

In the 1950’s we had a RED SCARE in this country. Many of you probably remember Senator Joe McCarthy. Many people were accused of being UN-AMERICAN and black listed.

The House Un-American Activities Committee (HUAC) investigated communist organizations. The HUAC came into being because they wanted to prove that a lot of actors and writers were communists.

Is this where we are going? Are we witnessing the beginning of a GREEN SCARE?  Someone not living like us, doing something different from us?  

A few folks raised the issue why that land wasn’t purchased by others - or even the conservancy? Good question.

I am sorely confused. Was land purchased by David Evans, or not? If he has the money to buy a swath, why shouldn’t he? He worked hard; he earned it. If he wants to build a house for every member of his family, why can’t he? 

Other people even had the gall to mention the biggest bugaboo of all …property rights. Two words that are as evil as a rapist, baby killer, or mass- murderer judging by one fellow’s comments:

Have property rights? Yes, and within the law you can be be immoral, teach your kids to be racists and never deal with ethics or fairness. You may be as greedy and uncaring as the law allows. You may do what you want with your property and never consider your neighbors, your community, your city or the planet. Under the law in other countries you can torture and kill your wife.

Whew…I guess in his world, wife killing and property rights go hand in hand. But this fellow did say the magic words “Under the law in other countries…” Let’s read them again, shall we, Under the law in other countries…

What the respondent seems to have forgotten is that we are in AMERICA, and under American law, The Edge has constitutional rights - just like him, or any of the other folk who wrote in. But why talk about the constitution, say you, that’s a right-wing issue, isn’t it?  Says who - and since when?

Constitutional rights and Environmental protection are not mutually exclusive of each other. Both need great care and our due diligence to insure we have freedom and an healthy environment for future generations. So what is the solution?

Here is a novel concept: Why not welcome The Edge into the community and thank him for the bread he will be putting on the tables of the many who will be employed building whatever he builds.

The Scarlet Letter, written by Nathaniel Hawthorne, set in 17th-century Puritan Boston, and tells the story of Hester Prynne, who gives birth after committing adultery, and struggles to create a new life of repentance and dignity.

Most Puritans were a strict, unfeeling, and unforgiving lot. Hester was scorned by women who felt  she deserved a larger punishment than she actually received.

Instead of only being made to stand on the scaffold and wear the scarlet letter on her chest, they suggest that she have it branded on her forehead or even be put to death.

 

It is to the credit of human nature, that, except where its selfishness is brought into play, it loves more readily than it hates.  Hatred, by a gradual and quiet process, will even be transformed to love, unless the change be impeded by a continually new irritation of the original feeling of hostility.  ~Nathaniel Hawthorne, The Scarlet Letter, Chapter XIII

Shall we do the same to The Edge?

California Coastal Commission to allow overnight camping in Extreme Fire Hazard Zones?

Saturday, February 14th, 2009

Roasting Marshmallows

Roasting Marshmallows sure is fun!

The Santa Monica Mountains Conservancy is proposing to install new overnight campgrounds in three of this area’s most delicate canyons: Ramirez, Escondido and Corral.

These three canyons are in areas classified by the state as “Very High Fire Hazard Severity Zones.”

(Source: WestsideToday.com, February 13, 2009)

Is anyone else alarmed or thinking, “Gee, this sounds like is a really, really bad idea?” Just so supporters of the CCC or the SMMC can roast marshmallows? Wow.

SINS OF COMMISSION provides exclusive information that delves into policies like this and discovered agencies like the California Coastal Commission actually perpetuate these wild fires because they refuse fuel modification in public land under their charge. Then when a really big, catastrophic fire blows through, they rock on their heels and whistle.

Wind's really kicking in... pass me another marshmallow!

This is not about Saving the Coast, Beach Access or people’s rights to hike on trails, the worthiness of trails or public vs. private property, Republicans v. Democrats, Liberals v. Conservatives, Left v. Right. etc.  It is about public safety - meaning all of us -plain and simple.

Are our collective memories short or what?

The Corral fire, the most destructive fire in the city of Malibu in nearly 15 years burned 4,700 acres consumed 49 homes and forced the evacuation of thousands of residents. About 1,750 firefighters, at least 45 fire engines, numerous hand crews, 23 water-dropping helicopters and two fixed-wing planes battled the blaze.

(Source LA Times November 27, 2007)

I sure hope someone, Governor Schwarzenegger, in charge of protecting public safety, Governor Schwarzenegger, is reading this blog in Sacramento, Governor Schwarzenegger, and people in Australia too.

Yes, of course, every lobbyist and politician loves eco-dollars and wants to be seen as a friend of the environment, but what will you say to a fire fighter’s widow… especially when a fire could have been prevented?

Last year’s Corral Canyon fire and the recent fire in Montecito destroyed hundreds of homes and threatened thousand of lives.  And, these fires had two things in common: They were caused by people who did not completely extinguish their fires; and the millions of dollars spent to fight the fires were paid for by the taxpayers.

(Source: WestsideToday.com, February 13, 2009)

The Malibu City Council decided that allowing camping and intensive public uses in high fire areas created too great a risk to visitors and neighbors.

That decision has been opposed by the Santa Monica Mountains Conservancy.

Is it any surprise our tax base is disappearing? Hey, where is everyone going? Last one out of the state, please close the door.

Can folks in Australia roast marshmallows in the middle of their hazardous flammable brush zones? If you can, please you guys… don’t.

Feeling burnt?

Help us spread the word.

SINS OF COMMISSION needs your help. We desperately need funds to finish the film. Please donate now though our fiscal sponsor, The International Documentary Association, a 501 c3 non profit organization, and receive a tax deduction from Uncle Sam or at least an I.O.U.



 
 
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