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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.

Kathleen Kenny vs California Coastal Commission - SINS OF COMMISSION

Sunday, December 21st, 2008

A working class hero is something to be…

-John Lennon 

Kathleen Kenny

Kathleen Kenny - Courtesy of Kathleen Kenny Family © 2008 pchpfilm, inc.

When I interviewed Kathleen Kenny, she had less than a year to live. Kathleen was a brave woman… you could see she was a fighter.

Maybe it was the Irish in her. But there was something else too - an unwavering strength in her belief she was right.

I interviewed Kathleen a total of two times. In both interviews, she was  lucid, very focused and determined. She spoke softly but clearly, thanks, in large part, to a heavy morphine drip. We spoke about 90 minutes each day.

When we finished our work together, she looked up. The toll from her battle with cancer was evident, and asked me if I believed her story. I said that I did. She smiled, sighed with relief, and closed her eyes. 

Kathleen confided in me that no one she ever spoke with about the California Coastal Commission believed her story, and was afraid she would pass on without ever seeing a great injustice righted. Kathy asked me to tell her story, knowing full well it wouldn’t do her any good, but might empower others to stand up for their rights.

Kathleen’s Story

Political hacks say fighting city hall is like gambling in Las Vegas, the house always wins. It’s not always the truth. It is just what the house wants us to believe.  Conventional wisdom says we should always choose our battles wisely; but, what do we do when an unwise battles choose us?

In Kathleen’s words

Kathy in happier days - Courtesy Kathleen Kenny Family -©2008 pchpfilm, inc.

“We went to a public auction that was in Topanga Canyon, California and we ended up buying four lots up there, four small lots, from this auction at a very reasonable price with the idea of building a small home on each one of those lots.

There appeared to be a lot of difficulty in getting permits.

We would fill out the forms that were requested of us, go back the next time, they were lost. Been sent to various departments, the road department, to the Coastal Commission, Regional Planning, and we never could seem to get ahead.

Then we began to, as time went on, notice that others were building, and we would go over to them and ask, ‘we’re having trouble getting a permit, on this very small house,” by the way, that house was only 661 Square feet, are we doing something wrong?’

Kathleen Kenny - Courtesy of Kenny Family © 2008 pchpfilm, inc.

I wrote a letter, to the supervisors, and told them this story, in detail… over three years in trying to get a permit for a 660 square foot house, saw others around us building, who seemed to get their permits in thirty days, or less.

And I gave a whole history of my background. That I had come here as a young girl, on a bus, with nine dollars, had gone to school here, my dream was to have a home, so forth and so-on. 

 

And, little by little, people began saying, ‘You have to pay money…’

‘Just give the building department money, put money in a plain envelope when you go up there, bring your plans with you, just slide it across the counter, and at the same time, ask them if they could double check your plans to see if there was anything that you had done wrong, or bring out the fact that they have a lot of expertise, maybe they could help you,’ so forth and so-on. 

We came ultimately to learn that nobody got a permit in that area. Either from the Coastal Commission or the Building Department without working through an expediter, or paying money under the table

Kathleen Kenny & Art Starz

Kathleen Kenny & Art Starz - Courtesy of Kathleen Kenny Family © 2008 pchpfilm, inc

We jack hammered the foundation ourselves, poured the foundation, and, in fact, we came to the attention of the Los Angeles Times. And, they came out and wrote a front page story of the Real Estate section of the Sunday Times. The title of that article was, “Sweat Equity.” 

Sweat Equity

LA TIMES May 15, 1988

And they, in that article, they told that story, of what we had been through, and that I’d gone to school, so forth and so-on, and in the process they mentioned that it had cost us ($25,000.00) twenty-five thousand dollars to build this home.

It was absolutely a beautiful home.

That then began a flood of people who read that, had dreamed of having their own homes, who began going down to the building department, trying to get information, coming out to our property and asking us…

The next thing that we knew, is that Art [ Kathy's companion] and I were both arrested. 

  

 

They came the next day with, as I said, two sheriffs who stood guard holding rifles. You can see them opening up panty drawers, and lifting up my panties, out of the drawer, opening up the refrigerator. They also had cameras and  were taking pictures of everything.”


 

 

kath1edit.jpg

Kathleen Kenny - Courtesy of Kenny Family © 2008 pchpfilm, inc.

Epilogue

Kathleen Kenny stood against a fleet of government lawyers, a deputy attorney general, and all of the might, resources, and power of the state of California and did what no one else had done: She filed a RICO lawsuit (Racketeer Influenced and Corrupt Organizations Act) against the County of Los Angeles.

She did it by herself - pro per - without a lawyer, and she won.   

But, as Kathy tells it, a deputy district attorney took it upon himself, or maybe got instructions from on high, to order the presiding judge in her case to over turn her verdict.

Kathleen Kenny continued to fight this injustice up to her death.

Kathleen Kenny passed away February 16, 2007. 

Post mortem, $2.4 million dollars in fines still stands against her surviving companion, Art Starz.



 
 
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