Newport Beach case strikes at Coastal Commission

Paul Clinton

NEWPORT BEACH -- A superior court judge declared the California

Coastal Commission unconstitutional while ruling this week on a case

brought by a Newport Beach environmentalist.

Rodolphe Streichenberger, who founded the Marine Forests Society,

began his challenge of the commission’s operating practices in April

1997, shortly after it refused him a permit to operate a marine habitat

about 300 yards off the Balboa Pier.

In a statement released Wednesday, Streichenberger cheered the judge’s

ruling, calling the commission “tyrannic.”

The decision will pave the way for less intrusive governmental review

of coastal projects, said Ronald Zumbrun, Streichenberger’s Sacramento

attorney.

“It’s a real bombshell,” Zumbrun said. “It’s a major decision.”

In the tentative ruling, Sacramento County Superior Court Judge

Charles Kobayashi said the agency operates improperly because it isn’t

accountable to other branches of government -- a violation of the

separation of powers clause in the state and federal constitutions.

“Purportedly an executive agency, the commission is answerable to no

one in the executive [branch],” Kobayashi wrote in the decision. “The

members are not directly answerable to the voters.”

Kobayashi also objected to the commission’s limits on judicial review

of its actions and the free reign by the legislature to appoint or remove

members.

Commission attorneys said they would ask the Third District Court of

Appeal to overturn the ruling. Otherwise, its implementation could put

the breaks on the commission’s oversight and approval process of all

forms of coastal development.

Lisa Trankley, the deputy attorney general that argued for the

commission, said the ruling should be put on hold until a higher court’s

decision.

“During the appeal, I don’t think it would be in anybody’s interests

for the commission not to function,” Trankley said. “If [the ruling] were

allowed to be implemented, it would be mass chaos.”

Kobayashi’s ruling expands on “Nollan vs. California Coastal

Commission,” a 1987 U.S. Supreme Court case imposing sharp limits on

coastal regulation.

The decision could chill governmental controls on development, said

Peter Reich, an environmental law professor at Costa Mesa’s Whittier Law

School.

“The implication would be very broad in terms of giving developers

more of a license to build on the coast or interfere with coastal

access,” Reich said.

Environmentalists said they are unsure about how the ruling would

ultimately play out.

Defend the Bay founder Bob Caustin said he was concerned about giving

developers free reign but also said regulatory agencies should be

checked. Caustin agreed that the commission could use an overhaul.

If the ruling stands, the legislators would probably need to intervene

and restructure the agency.

“I don’t think we need to tear it apart,” Caustin said. “I think we

need to get some separation [of powers]. It’s got to be fixed.”