Title: American Bar Foundation Research Journal, Volume 1978 Fall, No. 4 - Coastal Land Management in California
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Title: American Bar Foundation Research Journal, Volume 1978 Fall, No. 4 - Coastal Land Management in California
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Abstract: Jake Varn Collection - American Bar Foundation Research Journal, Volume 1978 Fall, No. 4 - Coastal Land Management in California (JDV Box 43)
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Coastal Land Management

in California

by Gilbert L. Finnell, Jr.


Contents
I. CALIFORNIA'S COASTAL ZONE CONSERVATION ACT OF 1972
(PROPOSITION 20)-INTERIM REGULATION AND FORMULATION
OF A COASTAL PLAN 652
A. An Overview of Proposition 20 654
1. Formulation of Coastal Management Policy by Adjudication 657
2. Flexibility in Decision Making 660
3. Standards in Delegation of Legislative Power 661
4. The "Moratorium" Aspect 665
5. Beneficent Interpretation and Administration 673
6. The Nature of the Commissions' Hearings 675
7. Composition of the Decision-making Bodies 677
8. Vested Rights and Exemptions 681
B. The Effects of the Interim Regulatory Phase 683
1. Effects on California Institutions 683
2. Environmental Effects 687
3. Economic Effects 688
4. Social Effects 689
C. A View of the Interim Phase from the Perspective of a
Major Land Development Company 692
II. CALIFORNIA'S GENERAL PLANNING FRAMEWORK 702
A. State Planning 702
1. Evaluation of Comprehensive State Planning in California 705
B. Regional Planning 709
C. Local Planning 712
1. Observations about California's Local Planning Process 713
D. Case-by-Case Planning: CEQA'S Requirement of an
Environmental Impact Report (EIR) 714


1978 American Bar Foundation












III. THE CALIFORNIA COASTAL ACT OF 1976


A. The Coastal Management Policies 718
1. The Coastal Policies as "Authoritative General
Directive Arrangements" 719
a) Comprehensibleness 721
b) The level of generality 722
c) Internal consistency and priorities 725
d) Substantive comprehensiveness 726
e) Geographical comprehensiveness 727
f) Reasonableness 729
g) Acceptability 731
h) Purposefulness and likelihood of inspiring
action and compliance 733
B. Certification of Local Coastal Programs 734
C. Regulation Under the 1976 Coastal Act 738
1. Coastal Development Permits 738
2. Appeals 739
3. Nature of the California Coastal Commission 740
IV. CONCLUSIONS 741


_ __ __


















Coastal Land Management

in California

by Gilbert L. Finnell, Jr.


The nation's most significant experiment in coastal land management,
and the one likely to affect the most people's lives, is now under way in
California.' The program will most likely have national, and perhaps
even international, consequences.
The California Coastal Act of 19762 continues a coastal planning and
regulatory process that began in 1972 when California's citizens
approved "Proposition 20."3 This article examines, first, Proposition
20; second, the general planning framework within which California's
coastal program must fit; third, the California Coastal Act of 1976; and
last, California's general experiences with coastal land management


Gilbert L. Finnell, Jr., who is Professor of Law, University of Houston, and Affiliated Scholar,
American Bar Foundation, is for academic year 1978-79 Visiting Professor of Law, University of
Illinois. B.B.A., 1959, J.D., 1963, Southern Methodist University; LL.M., 1967, Harvard Univer-
sity. This article is part of a series of articles on coastal land management being submitted in par-
tial fulfillment of the requirements for the degree of Doctor of the Science of Law in the Faculty
of Law, Columbia University.
At the introduction of this series of articles, 1978 A.B.F. Res. J. 153, the author acknowledged
his gratitude to his Columbia University advisory committee and to those, including the American
Bar Foundation, who supplied the financial and other essential support. For this article, he is in-
debted, additionally, to the many Californians who, through personal interviews and other
assistance, contributed to his understanding of California's legal and political processes, par-
ticularly the help of those Californians who gave helpful comments on various parts of earlier
drafts of this article, including Joseph Bodovitz, Peter Douglas, H. J. Frazier, Stanley Scott, and
Paul Sedway, and to John Banta, of Washington, D.C. The author notes especially his apprecia-
tion for the invaluable suggestions of his editors for this series of articles, Professor Spencer L.
Kimball and Sandy Mathai of the American Bar Foundation.
1. "In the past 30 years, California's population has tripled to more than 20 million; 85 per-
cent of this population lives within 30 miles of the coast, and 64 percent within the 15 coastal
counties." California Coastal Zone Conservation Commissions, California Coastal Plan 79
(Sacramento, Cal.: Documents and Publications Branch, 1975) [hereinafter cited as 1975 Coastal
Plan].
2. California Coastal Act of 1976, Cal. Pub. Res. Code 30000-30900 (West 1977 & Cum.
Supp. 1978) [hereinafter cited as 1976 CCA].
3. California Coastal Zone Conservation Act of 1972, 1972 Cal. Stats. A-181 (repealed on Jan.
1, 1977) [hereinafter cited as 1972 CCZCA].










650 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


from 1972 to 1977. In a subsequent article, I shall discuss and compare
Florida's emerging program with that of California.
Comprehensive land management is a recent phenomenon in the
United States. The origin of comprehensive zoning, which is only one
of many available regulatory techniques, is generally traced to New
York City's 1916 ordinance.4 Zoning outside corporate limits of munici-
palities began even later. It existed in Wisconsin, for example, in the
1920s.5 Many parts of the United States still do not have zoning or
other public regulation of land use.
In the 1926 case of Village of Euclid v. Ambler Realty Co.,6 the
United States Supreme Court upheld the zoning ordinance of a suburb
of Cleveland, Ohio, against constitutional attack. "Euclidean" zoning
soon came under considerable criticism, however, and calls were heard
for land use controls that would provide more decision-making flex-
ibility through procedures that would better protect against administra-
tive abuses.7 The sharp increase in environmental regulatory programs
during the 1970s has made these calls for reform even more compelling,
as there is now a need for simplifying and coordinating the emerging
land use and environmental regulatory programs.8
Several states began responding to the need for land planning and
regulatory reform during the 1960s and early 1970s.9 These new
programs had some common features. They tended, for example, to
involve levels of government "higher" than local government, and they
provided for more discretion in review of development applications
than was theoretically provided for under traditional types of Euclidean
zoning. In 1972 two especially important state legislative developments
occurred-approval of Proposition 20 by the California voters and
enactment of land and water planning and regulatory programs by the
Florida legislature." Since then, these two states have been national

4. See Jacob H. Beuscher, Robert R. Wright, & Morton Gitelman, Cases and Materials on
Land Use 501 (2d ed. St. Paul: West Publishing Co., 1976).
5. Id.
6. 272 U.S. 365 (1926). Compare Nectow v. City of Cambridge, 277 U.S. 183 (1928) (specific
due process attack).
7. See, e.g., Richard F. Babcock, The Zoning Game: Municipal Practices and Policies
(Madison: University of Wisconsin Press, 1966).
8. Cf. U.S., Council on Environmental Quality, Fifth Annual Report 51-54 (Washington,
D.C.: Government Printing Office, 1974), discussed in Beuscher et al., supra note 4, at 504-6.
9. See, e.g., Fred Bosselman & David Callies, for the Council on Environmental Quality, The
Quiet Revolution in Land Use Control (Washington, D.C.: Government Printing Office, 1972).
10. See Florida Environmental Land and Water Management Act of 1972, Fla. Stat. Ann. ch.
380 (West 1974 & Cum. Supp. 1978); Florida State Comprehensive Planning Act of 1972, Fla.
Stat. Ann. ch. 23, pt. 1 (West Cum. Supp. 1978); Land Conservation Act of 1972, Fla. Stat. Ann.
ch. 259 (West 1974) (proposed by the Governor's Task Force on Resource Management). See also











COASTAL LAND MANAGEMENT


leaders in experimenting with the formulation of new land management
techniques.
The police power, an inherent power of sovereignty reserved by the
Tenth Amendment of the United States Constitution, is a principal
source of state and local regulatory power over land use." Because
historically states delegated this power to regulate for the public
"health, safety, welfare, and morals" to local governments, there is an
initial question whether a state constitution limits a legislature's power
to enact legislation superseding local authority. Although generally local
government's regulatory authority is based on a revocable statutory
grant of power, in exceptional cases it may be based upon a state
constitutional grant, which limits the legislature's power."
"Home rule" was not an impediment in California or Florida.
Neither California's Proposition 20'3 nor Florida's Environmental Land
and Water Management Act of 197214 required a constitutional amend-
ment, although both acts empowered state agencies to overrule local
governments in certain cases. Even states with constitutional home rule
provisions can probably enact effective coastal land management
programs without constitutional amendment, however, since home rule
powers deal only with local government's power to govern with respect
to local matters," and coastal land management is premised on the
need to regulate the extraterritorial impact of local actions. Hence, the
legislation empowering state agencies to regulate such externalities
should never require constitutional amendment. Indeed, any state


Florida Water Resources Act of 1972, Fla. Stat. Ann. ch. 373, pt. 1 (West 1974 & Cum. Supp.
1978) (proposed by the House Interim Study Committee on Water Resource Management and sup-
ported by the task force). This legislation "constitutes one of the most significant advances in
state land use legislation in this country's history-certainly comparable with the 1970 Vermont
legislation and the earlier Hawaii legislation." Address by Fred P. Bosselman, American Society
of Planning Officials National Planning Conference, Apr. 17, 1972.
11. See generally 1 Norman Williams, Jr., American Planning Law: Land Use and the Police
Power 7.04-.05, at 179-84 (Chicago: Callaghan & Co., 1974).
12. See generally for citations to the extensive literature on "home rule," Sho Sato, "Municipal
Affairs" in California, 60 Calif. L. Rev. 1055 n.l (1972).
13. Cf. CEEED v. California Coastal Zone Conservation Comm'n, 43 Cal. App. 3d 306, 118
Cal. Rptr. 315 (1974).
14. Fla. Stat. Ann. ch. 380 (West 1974 & Cum. Supp. 1978). See Cross Key Waterways v.
Askew, 351 So. 2d 1062 (Fla. 1st Dist. Ct. App. 1977) (holding, inter alia, that the "Florida Con-
stitution does not forbid State reclamation of regulatory power from local government and its
reassignment to State agencies," id. at 1065). See generally Charles L. Keesey, Florida Home Rule
Powers, prepared for the Florida Environmental Land Management Study Committee (Sept. 10,
1973) (Legislative Research Library, Tallahassee).
15. See Robert Kratovil & John T. Ziegweid, Illinois Municipal Home Rule and Urban Land-a
Test of the New Constitution, 22 DePaul L. Rev. 359, 366-67 (1972) (discussion of distinction be-
tween "state affairs" and "municipal affairs").


No. 4











652 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


constitutional provision that purported to surrender state sovereignty
over such matters would arguably be tantamount to creating a state
within a state, contrary to article IV, section 3, of the Constitution.16

I. CALIFORNIA'S COASTAL ZONE CONSERVATION ACT OF 1972
(PROPOSITION 20)-INTERIM REGULATION AND
FORMULATION OF A COASTAL PLAN

Recent oil spills, the destruction of beaches and ocean views, and a
general decline in the beauty of the coastline had, by 1972, produced in
California a public consciousness that could be described as "aesthetic
fright."" Every Californian could understand the losses that were
occurring. The general upsurge of environmental consciousness, the
repeated failures of the California legislature to respond,'" and the ease
with which the issues could be presented to the public laid a strong
foundation for the California citizens who waged their classic battle to
"save the coast."'9
The ensuing citizens' drive was not the first California effort to
protect the coast. Almost a half century ago, the California legislature
authorized the Department of Natural Resources to study the need for



16. Id. (citing Straw v. Harris, 54 Or. 424, 103 P. 777 (1909), and as contra, 16 Wyo. L.J. 47,
51 (1961)).
17. Interview with Michael Fischer, executive director, North Central Coast Regional Commis-
sion, in San Rafael, Cal., Feb. 11, 1975.
18. See Fred C. Doolittle, Land-Use Planning and Regulation on the California Coast: The
State Role, University of California, Institute of Governmental Affairs, Environmental Quality
Series no. 9 (Davis, Cal., 1972).
19. See generally, for the history of Proposition 20, Janell Anderson, Economic Regulation and
Development Goals: The California Coastal Initiative (Davis: University of California, Institute of
Governmental Affairs, 1974); Philip L. Fradkin, California: The Golden Coast (New York: Viking
Press, 1974); Robert G. Healy, Land Use and the States (Baltimore: Johns Hopkins University
Press, for Resources for the Future, 1976); Melvin Mogulof, Saving the Coast: California's Ex-
periment in Intergovernmental Land Use Regulation (Lexington: Lexington Books, 1975); Stanley
Scott, Governing California's Coast (Berkeley: University of California, Institute of Governmental
Studies, 1975); Janet Adams, Proposition 20-a Citizens' Campaign, 24 Syracuse L. Rev. 1019
(1973); Peter M. Douglas, Coastal Zone Management-a New Approach in California, 1 Coastal
Zone Management J. 1 (1973); Peter M. Douglas & Joseph E. Petrillo, California's Coast: The
Struggle Today-a Plan for Tomorrow, Pt. I, 4 Fla. St. U.L. Rev. 177 (1976), Pt. II at id. 315;
Neil E. Franklin, Patricia S. Peterson, & William Walker, Saving the Coast: The California
Coastal Zone Conservation Act of 1972, 4 Golden Gate L. Rev. 307 (1974); Robert G. Healy,
Saving California's Coast: The Coastal Zone Initiative and Its Aftermath, 1 Coastal Zone
Management J. 365 (1974); John M. Winters, Environmentally Sensitive Land Use Regulation in
California, 10 San Diego L. Rev. 693 (1973); Statutory Comment, Coastal Controls in California:
Wave of the Future? 11 Harv. J. Legis. 463 (1974); Note, Saving the Seashore: Management Plan-
ning for the Coastal Zone, 25 Hastings L.J. 191 (1973); Note, A Decision-Making Process for the
California Coastal Zone, 46 S. Cal. L. Rev. 513 (1973).










COASTAL LAND MANAGEMENT


coastal protection. A report was filed on January 19, 1931,20 but the
issue then became dormant until the mid-1960s. In 1964, a Governor's
Advisory Commission on Ocean Resources was formed, and in 1966
legislative hearings on coastline conservation were held.21 The Marine
Resources Conservation and Development Act of 1967 ordered the
governor to start work on a comprehensive ocean area plan.22 The final
report of that project was in 1972.23 Its major contribution to coastal
protection was its inventory work and general fact gathering about the
nature of coastal resources and the potential effects of uncontrolled
development; but it could not translate policies, goals, and objectives
into action. And the public wanted action.
From about 1968 to 1972, individual members and committees of the
California legislature tried hard to secure passage of legislation to
protect the coast. In 1971 a bill supported by the Democratic leadership
passed the assembly by a vote of 56-17 but failed to get Senate com-
mittee approval.24
California's constitution, since 1911, has reserved to the people the
power to propose and adopt legislation.25 If a proposed initiative gains
a place on the ballot, a majority of voters can then approve the



20. Report of Joint Legislative Committee on Sea Coast Conservation, Cal. Assembly J., 48th
Sess. 461-62 (1931). See generally Adams, supra note 19, at 1019-22.
21. Adams, supra note 19, at 1021.
22. California, Department of Navigation and Ocean Development, California Comprehensive
Ocean Area Plan [COAP], at 1-2 [1972].
23. This report is intended to serve as a foundation for setting the State's policy in
the management of California's coastal zone. It is based on a comprehensive inventory of
our coastal resources and broadly based consultation and research. It proposes guidelines
for the wise utilization of these resources which would be applicable to whatever manage-
ment system is established to implement State policy. It identifies principal conflicts of use,
discusses important issues, and proposes basic guidance for achieving a proper, reasonable
and equitable balance between conservation and development which would be in the net
public interest.
Id. at iii. See also appendices to COAP, e.g., appendix II, Gruen Gruen & Associates & Sed-
way/Cooke, Approaches Towards a Land Use Allocation System for California's Coastal Zone:
Report to the Department of Navigation & Ocean Development of the Resources Agency, State of
California ([San Francisco] 1971). COAP was favorably evaluated by Robert B. Krueger, Esq.,
formerly chairman, California Advisory Commission on Marine and Coastal Resources, in an in-
terview in Los Angeles, Feb. 18, 1975. Several other knowledgeable persons, however, expressed
some doubt of COAP's value to the Proposition 20 planning effort.
24. See Adams, supra note 19, at 1029-32. A.B. 2090, a seminal bill introduced by Assembly-
man Alan Sieroty in Apr. 1969 "would have been the first step in establishing a Southern Califor-
nia regional agency." Doolittle, supra note 18, at 39.
25. Cal. Const. art. IV, 1. See Max Radin, Popular Legislation in California: 1936-1946, 35
Calif. L. Rev. 171 (1947); Comment, The Scope of the Initiative Referendum in California, 54
Calif. L. Rev. 1717 (1966).


No. 4










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


initiative proposal as law, effective the day following the election.26
Approval of Proposition 1327 recently drew national attention to this
process.
The California Coastal Alliance, which by March 1971 had 34 allied
organizations, was probably the most effective spearhead for the 1972
coastal campaign.2" Composed of members such as the Sierra Club, the
Planning and Conservation League, and other groups that had led the
earlier campaigns for protective legislation, the alliance was ideally
suited to undertake the massive drive to secure citizen-adopted legisla-
tion.29 On June 19, 1972, the secretary of state announced that the
initiative had qualified with 418,000 valid signatures.30
In the ensuing campaign, complex issues were reduced by both sides
to simplistic slogans; appeals for support were made on emotional
rather than intellectual bases.3" Under the constitutional provision,
Proposition 20 had to be passed or defeated as written; there was no
chance for the valuable legislative process of debate, compromise, and
amendment. The initiative also provided that the legislation could not
be amended without a two-thirds vote of the legislature.32 Under-
standably, then, the stakes were high and the campaign was heated.
Proposition 20 passed on November 7, 1972, with an affirmative vote
of 55.1 percent.3
A. An Overview of Proposition 20
Citizen approval of Proposition 20 resulted in the creation of the
California Coastal Zone Conservation Commission and six regional
commissions to accomplish two major objectives: (1) study the coastal
zone and prepare the California Zone Conservation Plan-a "compre-
hensive, coordinated, enforceable plan for the orderly, long-range
conservation and management of the natural resources of the coastal
zone";34 and (2) regulate development in the "permit area" of the
coastal zone during the study and planning period."

26. Cal. Const. art. 2, 10 (Supp. 1955-77).
27. The widely publicized tax limitation, approved by the people June 6, 1978, adding art. 13A,
1-6, to the California constitution. See West's Cal. Legis. Serv. 1978, no. 4, at xxv-xxvi.
28. See Adams, supra note 19, at 1027.
29. See the requirements in Cal. Const. art. 2, 8 (Supp. 1955-77).
30. Adams, supra note 19, at 1036.
31. See generally id. at 1036-42; interview with Donald D. Gralnek, Esq., in San Francisco,
May 23, 1975.
32. 1972 CCZCA, supra note 3, ch. 8, 5.
33. See Adams, supra note 19, at 1042.
34. 1972 CCZCA, supra note 3, 27000(a), (b), 27300 et seq.
35. Id. 27001(c), 27400 et seq.


1978:647












COASTAL LAND MANAGEMENT


The interim regulatory process provided:
On or after February 1, 1973, any person wishing to perform any
development within the permit area shall obtain a permit authorizing
such development from the regional commission and, if required by law,
from any city, county, state, regional or local agency.36

Thus the act established a state licensing (permit) process, in addition to
any other applicable land use regulatory processes, until the end of the
interim regulatory period, January 1, 1977." Figure 1 illustrates this
interim permit process; the same process continues under the California
Coastal Act of 197638 pending certification of local coastal programs.39


LOCAL GOVERNMENTS

Continue to administer appli-
cable local land development
regulations.


CALIFORNIA COASTAL ZONE
CONSERVATION COMMISSION



REGIONAL COMMISSIONS:

1. North Coast Regional Com-
mission (for Del Norte,
Humboldt, and Mendocino
Counties);
2. North Central Coast
Regional Commission (for
Sonoma, Marin, and San
Francisco Counties);
3. Central Coast Regional
Commission (for San
Mateo, Santa Cruz, and
Monterey Counties);
4. South Central Coast
Regional Commission (for
San Luis Obispo, Santa
Barbara, and Ventura
Counties);
5. South Coast Regional Com-
mission (for Los Angeles
and Orange Counties); and
6. San Diego Regional Com-
mission (for San Diego
County).


Decides appeals from deci-
sions of a Regional Commis-
sion in de novo hearing.


Initial decision-making agency
under California Coastal Zone
Conservation Act, but re-
quired permit is in addition to
any other permit required by
law. Regional Commission
hears only after local permits
have at least been "approved
in concept."


Fig. 1. Interim regulatory process for the California coastal zone, February 1, 1973-January 1,
1977.




36. Id. 27400.
37. Id. 27650. Amended by 1974 Stats. ch. 897, 2 (original initiative providing termination
as "the 91st day after the final adjournment of the 1976 Regular Session of the Legislature").
38. 1976 CCA, supra note 2, 30600(c) (1977).
39. See notes 371-91 infra and text at same.


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


The most significant part of the 1972 act was its interim regulatory
process. Not only did the process regulate development while a perma-
nent coastal plan was being prepared, but also the experience of hearing
permit applications had a significant impact upon the contents of the
coastal plan and upon Californians' perceptions of how a permanent
coastal planning and regulatory program might be administered. Thus,
it is instructive to analyze several notable characteristics of the interim
process.
Although the primary purpose of the permit process was "[t]o ensure
that any development will be consistent with the [act's] objec-
tives,"40 the permit experience became a principal source of informa-
tion for formulation of the policies, principles, and assumptions of the
California Coastal Zone Conservation Plan. It was a classic case of
policy formulation by adjudication.
Another notable aspect of the interim phase was the flexible decision-
making process that evolved. Strict interpretation of the act's standards
could have resulted in a virtual moratorium on coastal development,
but the commissions did not so interpret the act. Rather, formal and
informal techniques of persuasion were used to assure that permitted
development would be consistent with the broad environmental-protec-
tion purposes of the act.
Three characteristics of the commission hearings were noteworthy:
their openness, the amount of active citizen participation, and the
relative informality of the procedures. The commissions, in apparent
response to their citizen-derived authority, sought to create an open
process that did not encourage, or even afford, trial-like adjudicative
hearings."
The commissions also found it necessary to devote considerable
attention to questions of "vested rights" and "exemptions." The
constitutionally derived doctrine that certain "vested" developments
must be allowed to proceed to completion became a major and difficult
issue for the commissions.
Finally, the diversity of the topography, economy, culture, environ-
ment, and other unique characteristics of California was highlighted
during the interim regulatory phase. The state commission was forced
to grapple with the difficulties of formulating and administering policies
for a heterogeneous state.


40. 1972 CCZCA, supra note 3, 27001(c).
41. See notes 103-17 infra and text at same.


1978:647










COASTAL LAND MANAGEMENT


Before attempting to assess the overall effectiveness of the interim
regulatory program, I will analyze some of the legal and policy issues
mentioned above, that is, (1) formulation of policy by adjudication; (2)
the flexible decision-making process; (3) the nature of the commissions'
hearings; (4) issues of "vested rights" and exemptions; and (5) the
impact of regional differences.

1. Formulation of Coastal Management Policy by Adjudication
The commissions had two major functions-to prepare the plan and
to regulate interim development. The state and regional commissions
spent more time on the permit process,42 apparently not only because of
the natural tendency to give first attention to compelling matters, but
also because the commissioners decided that a "set of policy decisions"
would be the most useful source of information in plan preparation.
Since the state commission was often criticized for "planning by
permit," the criticism deserves careful analysis. In analyzing this issue
first, I do not intend to imply that the legislative standards of
Proposition 20 were constitutionally deficient; indeed, the California
Supreme Court held otherwise.43 Rather, I treat it first because of my
conviction that this approach to policy formulation, although theoret-
ically subject to criticism, was nevertheless the best course.
An official decision on how land can be used is often a hybrid of
fact finding, law application, and policy formulation. Particularly in
California's interim regulatory program, a decision on a permit applica-
tion was a hybrid-neither clearly "legislative" nor clearly "adjudi-
cative." It is the element of policy formulation that presents the
problem. In general, policy having future effects on many persons
should be established either by statutory enactment or by administrative
rule making.44 Rule-making procedures would provide better notice to
affected parties, assuring them more opportunity to comment on the
policy's foreseeable effects. Also, the publication of a rule necessitates
clear statement of the policy in published and accessible form and
provides an important standard for controlling administrative discre-
tion. The dangers of excessive reliance on adjudication in preparation


42. This is a strong impression I gained from all interviews. No one suggested otherwise.
43. CEEED v. California Coastal Zone Conservation Comm'n, 43 Cal. App. 3d 306, 118 Cal.
Rptr. 315 (4th Dist. Ct. App. 1974). See notes 60-61 infra and text at same.
44. See Kenneth Culp Davis, Administrative Law Text 6.03, at 142 (3d ed. St. Paul: West
Publishing Co., 1972).


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658 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


of a regulatory plan are (1) that the notice of intent to hear a specific
permit application may be inadequate notice to others who will be
affected by future policy and, perhaps of primary significance, (2) that
the "set of policy decisions" that emerges may not be readily available
to all persons who are interested in understanding the policies and
standards by which decisions on permit applications are guided.
Joseph Bodovitz, the first executive director of the California coastal
commission, was not apologetic about the commission's reliance on
adjudication. He believed, according to Robert Healy, that whatht is
needed is neither more research nor more specific plans for the
coast, but a set of policy decisions."45 His explanation for why the
commission did not attempt to publish the evolving policy in formal
rules was that "we have not tried to set forth what is going to work
here and what is going to work there, because we don't know."46 He
emphasized that "we are able to refer people to what the commission
did in a certain similar instance."
I found little to indicate that the staffs were not consistent in ground-
ing their permit recommendations on unwritten precedents, despite
slight evidence that extraneous considerations did sometimes affect
decisions.47 As the plan began to appear in draft form, the written
policies indeed reflected the previous experiences in processing and
hearing applications for permits to develop.
Arguments can be made in support of the commission's approach.
The formulation of coastal policies, which requires the balancing of
environmental, economic, and social considerations, seems particularly
to present new and complex problems for which policies (at least initial
policies) can better be formulated by case-by-case determinations. Even
Kenneth Culp Davis, a leading advocate for rule making as a means of
controlling administrative discretion, emphasizes that premature rule
making should be avoided:
We need more standards than we have, and such standards as we have
often need to be further clarified. But on new and complex problems we
can often do better by trying to formulate the guiding standards through
case-to-case determinations than by formulating them in general. The
goal is not elimination of unguided discretion; it is to limit unguided
discretion to circumstances in which it is necessary or desirable.


45. Healy, Saving California's Coast, supra note 19, at 387.
46. Interview with Joseph Bodovitz, executive director, California Coastal Zone Conservation
Commission, in San Francisco, Feb. 10, 1975.
47. See, e.g., notes 97-102 infra and text at same.


i










No. 4 COASTAL LAND MANAGEMENT 659


Administrators should not resort to rulemaking before they are
intellectually prepared to do so, for rules based upon inadequate under-
standing can obviously be harmful."
Further, the argument that a licensing process will not provide adequate
notice and opportunity to be heard may not be applicable to the Cali-
fornia coastal commissions' interim permit process because of their
commendable record of encouraging public participation.49 One close
observer was particularly pleased with the openness of the state
commission to public participation, which she attributed to (1) the fact
that the commission was authorized by citizen referendum, (2) the
quality of the commission staff, and (3) the "star-studded"
composition of the commission. She considered the public to have
"more access to this commission," calling it the "best agency" in
California in this respect. She believed that the public and the
commission were "in immediate contact" and that "the public was
doing what it could do best-responding to concrete issues that they
could appreciate and understand."50
Without risking undue generalization from this one observation, my
study of the interim California experience does tend to corroborate this
favorable evaluation of the commission's accessibility. That public
participation and interest in formulation of coastal policy was promoted
by the commission's emphasis on adjudication also seems reasonable: in
the early stages of coastal policy formulation, adjudication of a specific
proposal to destroy a beach or physical or visual access to the ocean is
more likely than a formal rule-making exercise to generate useful public
discussion of competing values, assumptions, and objectives. Subse-
quent rule making will be improved by the previous debates on specific
issues.
In summary, the California Coastal Zone Conservation Commission's
reliance on adjudication as a principal means of formulating initial
coastal policies meets minimum constitutional requirements and more;
strong arguments can be advanced in favor of this approach in a field
as new and complex as coastal zone management. Coastal states
considering mechanisms for coastal management should seriously
consider empowering the agency that prepares the coastal plan to


48. Davis, supra note 44, 4.12, at 121.
49. See, e.g., Scott, supra note 19, at 61-63.
50. Interview with Lorell Long, staff member, Energy Resources Conservation and Develop-
ment Commission, in Sacramento, Aug. 26, 1975.









660 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


regulate coastal development while the plan is being prepared. The
experience in processing individual requests for permits will be
invaluable in understanding the issues of coastal zone management and
will contribute immeasurably to formulation of realistic coastal policies.
At least two caveats should be expressed. First, the effectiveness of
this approach in California can be attributed, in large measure, to the
composition of the commission and staff, the strong policies of open-
ness and responsiveness to the public, and the informality of the permit
procedures. Significant changes in any of these variables might result in
the kinds of abuses that often accompany excessive reliance on adjudi-
cation as a means of policy formulation. Second, the commission's
reliance on adjudication occurred during the three-year interim period
when the developers' and general public's interests were focused on the
evolving coastal plan. The visibility and accessibility of the process
made it unlikely that failure to reduce evolving policies to formally
adopted rules would contribute to serious, widespread abuses. A perma-
nent program that relied heavily on adjudication for policy formula-
tion, however, would risk serious charges of creating unnecessary uncer-
tainty.

2. Flexibility in Decision Making
Another notable characteristic of the interim regulatory phase was
the broad discretion exercised by the coastal commissions. This
flexibility resulted from four principal factors: (1) the voting
requirements and the generality and simultaneous stringency of the
legislative standards; (2) the fact that the burden of proof was on the
applicant; (3) the state commission's liberal interpretation of the
standards; and (4) the imposition of conditions to achieve compromises.
Two findings had to be made before a regional commission could
issue a permit, with the applicant having the burden of proof: "(a)
That the development will not have any substantial adverse environ-
mental or ecological effect. (b) That the development is consistent with,
the findings and declarations and with the objectives [of the
act]."51
If the commissions had interpreted these standards strictly, they
could have established a moratorium on most major coastal develop-


51. 1972 CCZCA, supra note 3, 27402. The policy statements of 27001 and the objectives of
27302 were specifically referred to as additional standards.


L-










COASTAL LAND MANAGEMENT


ment during the interim planning phase, and the generality of the
standards would have made it difficult for a court to overrule the com-
missions' judgments." In addition, it was particularly difficult to get
approval for certain kinds of development because of the necessity of
obtaining "the affirmative vote of two-thirds of the total membership
of the regional commission, or of the commission on appeal." Develop-
ments requiring two-thirds vote included:
(a) Dredging, filling, or otherwise altering any bay, estuary, salt
marsh, river mouth, slough, or lagoon.
(b) Any development which would reduce the size of any beach or
other area usable for public recreation.
(c) Any development which would reduce or impose restrictions upon
public access to tidal and submerged lands, beaches and the mean high
tideline where there is no beach.
(d) Any development which would substantially interfere with or
detract from the line of sight toward the sea from the state highway
nearest the coast.
(e) Any development which would adversely affect water quality,
existing areas of open water free of visible structures, existing and
potential commercial and sport fisheries, or agricultural uses of land
which are existing on the effective date of this division.5
The standards were not interpreted, however, as creating a
moratorium. Rather, the commissions were able to encourage changes
in the proposed developments, formally by imposing conditions and
informally by encouraging voluntary changes. The probability that the
commissions would deny unmodified applications and be upheld in a
court lent persuasiveness to suggestions for change. A flexible decision-
making system resulted. This degree of discretion raises several
questions that deserve additional analysis.

3. Standards in Delegation of Legislative Power
Delegation of discretionary power to administrative agencies raises
fundamental issues of the proper relationship of the legislative and
executive branches of government. Concepts of the rule of law, of separa-
tion of powers, and of the nondelegation of legislative power are usually
the grounds for a case against delegation to an administrative agency.
Elsewhere I have discussed how the nondelegation doctrine has virtually


52. See notes 116-17 infra and text at same for scope of judicial review. See also Davis, supra
note 44, 29.01-.02, at 525-30, for discussion of the "substantial evidence rule." ("Under this
rule, the court decides questions of law but it limits itself to the test of reasonableness in reviewing
findings of fact." Id. at 525.)
53. 1972 CCZCA, supra note 3, 27401.


No. 4











662 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


been abandoned by the United States Supreme Court and how delegated
power without meaningful standards is regularly upheld.54 In the next
article in this series, I shall discuss the Florida Supreme Court's decision
on the appeal of Cross Key Waterways v. Askew,5 in which the court
upheld the lower court's decision that the standards, in Florida's
Environmental Land and Water Act of 1972, for guiding the governor and
cabinet in designation of certain kinds of areas of critical state concern are
inadequate and unconstitutional under the separation of powers section of
the Florida constitution.'6
State courts have been readier to strike down delegations by state
legislatures than have federal courts to strike down delegations by Con-
gress.57 In many states, there may be practical reasons why courts
should be more wary of delegations by state legislatures, such as inade-



54. See my article, The Federal Regulatory Role in Coastal Land Management, 1978 A.B.F.
Research J. 169, at 202-4 & nn. 180-88 [hereinafter cited as The Federal Role]. Two important ex-
ceptions to the United States Supreme Court's tendency to uphold congressional delegations are
A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (19'35), and Panama Ref. Co. v.
Ryan, 293 U.S. 388 (1935). Subsequent decisions upholding broad delegations include Arizona v.
California, 373 U.S. 546 (1963); Yakus v. United States, 321 U.S. 414 (1944); and Lichter v.
United States, 334 U.S. 742 (1948). See generally Davis, supra note 44, 2.00, at 40 et seq. for
three cases (out of "perhaps three hundred cases") in which Davis believes "the whole policy of
the government on the particular subject was made by the agency without guidance from Con-
gress"; Walter Gellhorn & Clark Byse, Administrative Law: Cases and Comments 71-84 (6th ed.
Mineola, N.Y.: Foundation Press, 1974) ("The steady course of Supreme Court decisions since the
Panama Refining and Schechter cases underscores the improbability that a federal statute
regulating business practices and not affecting freedom of expression will be found defective on
the ground that it violates the delegation doctrine." Id. at 84).
55. 351 So. 2d 1062 (Fla. 1st Dist. Ct. App. 1977). Cross Key, which was argued before the
Florida Supreme Court in Jan. 1978, upheld the Florida Environmental Land and Water Manage-
ment Act of 1972, Fla. Stat. Ann. ch. 380 (West 1974 & Cum. Supp. 1978), against several at-
tacks, but held the act's standards for guiding the governor and cabinet in designation of certain
kinds of areas of critical state concern inadequate and unconstitutional under the separation of
powers section of the Florida constitution.
56. The Florida Supreme Court's 7-0 decision was handed down on Nov. 22, 1978. Telephone
conversation with Nancy Linnan, Esq., office of the governor, state of Florida, Chicago to
Tallahassee, Nov. 22, 1978.
57. The nondelegation doctrine has been relaxed in many state courts. In addition to the
California cases, discussed here, see, for recent state supreme court decisions that have adopted
the position that procedural safeguards, including the formulation of subsidiary administrative
standards, are more important than insisting on precise legislative standards: Boehl v. Sabre Jet
Room, Inc., 349 P.2d 585 (Alas. 1960); Barry & Barry, Inc. v. State Dep't of Motor Vehicles, 81
Wash. 2d 155, 500 P.2d 540 (1972), appeal dismissed, 410 U.S. 977 (1973); Watchmaking Examin-
ing Bd. v. Husar, 49 Wis. 2d 526, 182 N.W.2d 257 (1971). Notwithstanding the liberalization of
the doctrine in many state courts, it has retained considerable vitality in others. See generally 1
Frank E. Cooper, State Administrative Law (Indianapolis: Bobbs-Merrill Co., 1965); Davis, supra
note 44, at 37; Gellhorn & Byse, supra note 54, at 84; Louis L. Jaffe, Judicial Control of Ad-
ministrative Action 73-85 (Abridged ed. Boston: Little, Brown & Co., 1965); Note, Safeguards,
Standards, and Necessity: Permissible Parameters for Legislative Delegations in Iowa, 58 Iowa L.
Rev. 974 (1973); Recent Developments, State Statutes Delegating Legislative Power Need Not
Prescribe Standards, 14 Stan. L. Rev. 372 (1962).











COASTAL LAND MANAGEMENT


quately developed procedural protections against arbitrary action.8 But
courts should be careful to analyze the total political and legal setting in
which the delegation occurs. Too many state court opinions on delega-
tion fail to say anything about
(1) the reasons for the legislative choice to make the particular
delegation, (2) the practical consequences of allowing the Legislature to
do what it is trying to do, (3) the usual lack of practical advantage in
compelling the Legislature to dress up the statute with vague verbiage
that the judges call standards, (4) the question whether in the
circumstances good government calls for a headlong choice of policy by
the legislative body or whether it requires the working out of policy by
case-to-case adjudication conducted by those who have the advantage of
knowing the facts of particular cases, (5) the need for protection against
unfairness, arbitrariness, and favoritism, (6) the importance of
procedural safeguards, of opportunity for a judicial check, and in some
circumstances of a proper legislative or even administrative supervision
or check, or (7) the need for providing help to the Legislature in its
search for practical and efficient ways of accomplishing legislative
objectives."
Not every state case suffers from such defects. In CEEED v.
California Coastal Zone Conservation Commission6 --one of several
California cases taking a more liberal view of the delegation issue6 -a
California appellate court, in upholding the constitutionality of the
California Coastal Zone Conservation Act of 1972, addressed itself to
many of the issues raised above, rejecting allegations of unbridled
discretion in the commission and of unconstitutional vagueness.


58. See generally Davis, supra note 44, at 37. Professor Davis notes: "Legislatures, especially in
closing hours of a session, are often less responsible than Congress; their draftsmen are often less
skillful in clarifying legislative intent; direct responsiveness to special-interest groups is often more
pronounced; committee investigations are usually less thorough; delegations to petty officers is
more common; and, especially, safeguards to protect against arbitrary action are generally less
developed." Id.
59. Id. at 39-40.
60. 43 Cal. App. 3d 306, 118 Cal. Rptr. 315 (4th Dist. Ct. App. 1974).
61. The CEEED court also reviewed Candlestick Properties, Inc. v. San Francisco Bay Conserva-
tion & Dev. Comm'n, 11 Cal. App. 3d 557, 89 Cal. Rptr. 897 (1st Dist. Ct. App. 1970), and
Friends of Mammoth v. Board of Supervisors, 8 Cal. 3d 247, 502 P.2d 1049, 104 Cal. Rptr. 761
(1972), both of which upheld delegations in similarly broad language. In 1976, the Rhode Island
Supreme Court upheld, in J. M. Mills, Inc. v. Murphy, 116 R.I. 54, 352 A.2d 661 (1976), the
constitutionality of Rhode Island's Fresh Water Wetlands Act on the basis of a delegation of
legislative power expressed with broad standards. The director of the Department of Natural
Resources was empowered to deny an application to alter a wetland if "in the opinion of the
director granting of such approval would not be in the best public interest." The "best public in-
terest" standard, the court concluded, was adequate especially when measured by the act's intend-
ed purposes and policies, which the court held were relevant and should be incorporated as part
of the guiding standards.


No. 4










664 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


The Proposition 20 delegation scheme is supportable, whether
measured by Professor Davis's pragmatic tests outlined above or by
the less analytical tests of most courts. Legislatures cannot, by
themselves, solve the pressing and complicated problems of coastal zone
management; increasingly, administrative delegation will be required.
Predictably other state legislatures will move toward increased
delegation, and other state courts will take the more liberal view of the
nondelegation doctrine. Nevertheless, legislatures and courts must
remain sensitive to the basic values underlying the constitutional
doctrine of separation of powers and to the abuses that can result from
unrestricted discretionary power. The legislatures' task will be to
include adequate standards to confine the delegated power, to include
adequate procedural safeguards to protect the interests of those affected
by administrative action, and to include action-forcing mechanisms to
assure that subsidiary administrative standards are promulgated.
This discussion suggests some useful guides to drafters. First, the
legislative drafters should set forth the relevant fundamental
policies-those "truly fundamental issues" that have already been
resolved. Florida's constitutional policy on natural resources is a good
illustration:
It shall be the policy of the state to conserve and protect its natural
resources and scenic beauty. Adequate provision shall be made by law
for the abatement of air and water pollution and of excessive and
unnecessary noise.6
Second, the legislation should include a concise, but complete,
explanation of the problems to be solved, the objectives of the
legislation, and the reasons why the legislature believes the particular
kinds of institutional arrangements are required. The opening sections
of the legislation should be a convincing brief to the judiciary explain-
ing that the legislature has chosen to delegate the discretionary power
for sound reasons. Third, in the sections empowering agencies to make
discretionary decisions, careful attention should be given to drafting the
applicable standards. If possible, more legislative specification should
be given than, for example, Rhode Island's "best public interest"
standard upheld in J. M. Mills, Inc. v. Murphy.6 But if at the outset
the legislature can only generally state the policies, problems, and


62. Fla. Const. art. 2, 7.
63. 116 R.I. 54, 352 A.2d 661 (1976).


- -










No. 4 COASTAL LAND MANAGEMENT 665


objectives, then the legislation should provide for action-forcing
mechanisms for producing more detailed standards as soon as possible.
California's 1972 coastal act is particularly important in this respect.
Although Proposition 20 established only a general framework of
policies, guidelines, and standards, its provision for interim regulation
while a coastal plan was formulated set in motion the nation's most
ambitious effort to specify principles, policies, standards, and rules for
coastal zone management. The California Coastal Act of 1976,
discussed below, continues these action-forcing provisions to establish
precise guidelines.
4. The "Moratorium" Aspect
The California coastal commissions did not interpret the interim
regulatory phase of Proposition 20 as establishing a moratorium on
development.64 Three questions nevertheless merit additional considera-
tion: (1) Could the act have been construed as tantamount to a limited
moratorium? (2) Would such a moratorium have been upheld against
constitutional attack? (3) What are the implications and consequences
of an interim regulatory process that vests such broad discretionary
power in administrative agencies (i.e., the coastal commissions)?
In San Diego Coast Regional Commission v. See the Sea, Ltd.,65 a
case posing a narrow issue of "vested rights," the California Supreme
Court also considered whether the voters intended a moratorium when
they approved Proposition 20. Finding no language in the act imposing
a moratorium and finding contrary intentions expressed by the propo-
nents' explanation of Proposition 20, the court concluded that the
voters did not intend one.
Several knowledgeable California attorneys told me informally, how-
ever, that the standards reasonably could have been interpreted as a
moratorium on most proposed developments and that, for some types
of development, were so interpreted.66 An early study of the interim


64. See notes 65-68 infra and text at same.
65. 9 Cal. 3d 888, 513 P.2d 129, 109 Cal. Rptr. 377 (1973).
66. A Los Angeles attorney who represented major development and oil interests and was
chairman of the California Advisory Commission on Marine and Coastal Resources bluntly
estimated that "if they followed the guidelines set forth in the act they would not approve nine-
tenths of what comes before them." Krueger interview, supra note 23. Another attorney, who
represented developers of two of the major Northern California projects, believed that, although
the commission tended to approve many smaller proposals (particularly single-family houses), it
had imposed a moratorium, in northern California, on major new developments. Interview with
Howard N. Ellman, Esq., in San Francisco, May 22, 1975. Furthermore, he explained how the ef-











AMERICAN BAR FOUNDATION RESEARCH JOURNAL


process concluded that by the end of the first year, "the coast law has
by no means put a moratorium on construction along the coast."67 But
even an executive director of a regional commission expressed concern
whether the stringency of the interim regulations should be continued
into the permanent program.68
Proposition 20 did seriously restrict some kinds of development while
the permanent coastal plan was being prepared. Such an interim
regulatory process has advantages.69 First, the land can be protected
from destructive and uncoordinated development while planners and
government officials have a reasonable time to formulate coastal
policies and adopt a permanent regulatory program. Second, as a
corollary, new nonconforming uses can be prevented while planning
proceeds. Third, the interim process promotes public debate. All three
advantages were achieved during the initial years of California's coastal
program.
Interim development controls are well established in many jurisdic-
tions,70 subject, of course, to constitutional limitations, principally the
due process and taking clauses under the Fifth and Fourteenth Amend-
ments.
Proposition 20 was never seriously vulnerable to challenge as undue
delegation of legislative power or on general due process grounds. Two
other challenges held more promise: (1) whether the act was constitu-



fects were felt even outside the permit zone because of the creation of uncertainties in the finan-
cial markets. An attorney who was closely associated with the drafters and supporters of Proposi-
tion 20 conceded that the commissions could have been much more restrictive in the projects they
approved. Interview with Ronald J. Gilson, Esq., in San Francisco, Feb. 11, 1975. He believed
the California courts would have upheld a virtual moratorium, but stressed that the state commis-
sion had attempted to avoid the moratorium interpretation. In contrast, however, an attorney
who supported passage and implementation of Proposition 20 believed the act was not a
moratorium, could not be effectively interpreted as such, and, in any event, was not so inter-
preted by the commission. Gralnek interview, supra note 31.
67. Healy, Saving California's Coast, supra note 19, at 371.
68. Interview with Thomas Crandall, executive director, San Diego Coast Regional Commis-
sion, in San Diego, Feb. 20, 1975.
69. See generally Robert H. Freilich, Interim Development Controls: Essential Tools for Im-
plementing Flexible Planning and Zoning, 49 J. Urban L. 65 (1971).
70. Professor Williams believes that predictions on the validity of interim controls can be based
on the state's general attitude toward zoning. "Thus, as would be expected, California and New
Jersey have found a way to approve interim zoning, and no doubt Massachusetts and Maryland
would if the occasion arose; Michigan, Ohio and Pennsylvania have disapproved, and so no
doubt would Illinois and Rhode Island." 1 Williams, supra note 11, 30.02, at 602. The
reporters of the ALI Model Land Development Code note the favorable judicial view toward tem-
porary land-use restrictions during the time when a plan is being prepared. ALI Model Land
Development Code 7-205, at 266 (1975) [hereinafter cited as ALI Code].


1978:647










No. 4 COASTAL LAND MANAGEMENT 667


tional in application to particular parcels of land, and (2) whether a
constructive "taking" of a particular parcel occurred within the mean-
ing of the Fifth Amendment's "taking clause." In both cases, the
statute must be analyzed with a view to its "reasonableness"; yet, the
reasonableness test is analytically different under the two constitutional
provisions.71 Some illustrative cases may illuminate the differences.
Consider first the due process question. When the landmark case of
Village of Euclid v. Ambler Realty Co. was handed down in 1926, the
United States Supreme Court, although upholding the general constitu-
tionality of the local ordinance, said:
[W]hen, if ever, the provisions...come to be concretely applied to par-
ticular premises... some of them...may be found to be clearly arbitrary
and unreasonable. But where the equitable remedy of injunction is
sought, as it is here, not upon the ground of a present infringement or
denial of a specific right, or of a particular injury in process of actual ex-
ecution, but upon the broad ground that the mere existence and threaten-
ed enforcement of the ordinance.. .constitute a present and irreparable
injury, the court will not scrutinize its provisions, sentence by sentence.


... [I]t is enough for us to determine, as we do, that the ordinance in
its general scope and dominant features...is a valid exercise of
authority... 72
In the face of the presumption of validity of the legislative judgment
and the "fairly debatable" rule, general constitutional attacks have not
fared well since then.73 Courts are reluctant to substitute their
judgments for those of politically responsive legislative bodies on essen-
tially policy issues.
A general constitutional attack on the reasonableness of the means
chosen by the California voters in Proposition 20 was rejected in
CEEED v. California Coastal Zone Conservation Commission.74 The
plaintiff's principal contention was that the initiative process rendered
the act void ab initio by denying affected property owners an oppor-
tunity to be heard. The court responded that the coastal act was not a


71. See The Federal Role, supra note 54, at 221-29 & nn. 290-324, for a discussion of some of
the differences.
72. 272 U.S. 365, 395, 397 (1926).
73. See generally American Society of Planning Officials, Urban Growth Management
Systems: An Evaluation of Policy-related Research, Planning Advisory Service Report nos. 309.
310, at 61 (Chicago: American Society of Planning Officials [1975]) [hereinafter cited as ASPO]
(citing Zahn v. Board of Public Works, 274 U.S. 325, 328 (1927)).
74. 43 Cal. App. 3d 306, 118 Cal. Rptr. 315 (4th Dist. Ct. App. 1974).











668 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


zoning measure and that, unlike zoning regulations, the coastal in-
itiative did not restrict land use permanently or for an indefinite period.
The court drew a clear distinction between permanent regulations and
the interim development controls, pointing out that a restriction that
was only an inconvenience if temporary might become oppressive if in-
definitely prolonged. The court found the permit system of the coastal
initiative less restrictive than other interim measures that had been
upheld.
California courts have been among the first to give "reasonableness"
a broad interpretation and to uphold innovative and restrictive land use
regulatory techniques.7 At the same time, the California legislature has
passed innovative land use legislation, including authorization for local
agencies to adopt interim emergency ordinances to preserve the status
quo pending adoption of zoning plans76 and the recent regional regula-
tory programs exemplified by the Lake Tahoe compact, the San Fran-
cisco Bay Conservation and Development Commission, and the coastal
acts." Given this state history of willingness to tolerate restrictions on
property rights, the CEEED decision, in upholding the constitutionality
of Proposition 20 against several constitutional attacks, was not surpris-
ing.
A specific due process attack might have had a better chance of suc-
cess.78 Two years after Euclid, the United States Supreme Court did
hold a zoning ordinance unconstitutional in its relationship to a specific
parcel.79 By way of dictum, however, the CEEED opinion suggests that
even that attack would have been difficult.80 Relevant questions, if the
attack had been made, would include the following: (1) Was the


75. "The striking feature of California zoning law is that the courts in that state have quite
consistently been far rougher on the property rights of developers than those in any other state."
1 Williams, supra note 11, 6.03, at 115. Miller v. Board of Public Works, 195 Cal. 477, 234 P.
381 (1925), cert. denied, 273 U.S. 781 (1927), is often cited for the validity of interim zoning dur-
ing the formulation of master plans.
76. See CEEED, 43 Cal. App. 3d at 314, 118 Cal. Rptr. at 321, drawing attention to Cal. Gov.
Code 65858. (West 1966 & Supp. 1966-77).
77. See Tahoe Regional Planning Compact, Pub. L. No. 91-148, 83 Stat. 360, approved Dec.
18, 1969; Cal. Gov. Code 66600-66661 (West 1966 & Supp. 1966-77); Bosselman & Callies,
supra note 9, at 108-35, 291-93.
78. "[T]he reports burst with successful due process attacks on zoning laws as applied.... Yet
an entire generation of law students has grown up learning that courts do (should) not undo social
or economic regulation in the name of substantive due process simply because judges question a
legislature's wisdom. Is there something about zoning that gives it a special vulnerability to
substantive due process assaults?" Curtis J. Berger, Land Ownership and Use 686 (2d ed. Boston:
Little, Brown & Co., 1975). See The Federal Role, supra note 54, at 224-25 & nn. 307-15.
79. Nectow v. City of Cambridge, 277 U.S. 183 (1928).
80. Cf. CEEED, 43 Cal. App. 3d 306, 118 Cal. Rptr. 315 (4th Dist. Ct. Ap. 1974).


_ ~L _










No. 4 COASTAL LAND MANAGEMENT 669


amount of time for plan formulation reasonable in light of the planning
goals and objectives to be achieved? (2) Were there alternative means
for protecting the coast during the planning period that could have ac-
complished the legislative objectives without burdening landowners, and
were these alternative means so clearly preferable that failure to choose
the alternative course constituted arbitrariness and capriciousness?
Review of the Euclid-Nectow tests and the relevant California cases sug-
gests, however, that such an attack on the interim program would prob-
ably not have been successful. The Nectow opinion, for example, in-
cluded this statement:
That the invasion of the property of plaintiff in error was serious and
highly injurious is clearly established; and, since a necessary basis for the
support of that invasion is wanting, the action of the zoning authorities
comes within the ban of the Fourteenth Amendment and cannot be sus-
tained."
A California or federal court would probably not reach the same con-
clusion about California's interim regulatory process.
Consider now the "taking" issue. This Fifth Amendment limitation
on governmental power to regulate land use had its principal judicial
enunciation in Justice Holmes's famous opinion in Pennsylvania Coal
Co. v. Mahon: "The general rule at least is, that while property may be
regulated to a certain extent, if regulation goes too far it will be
recognized as a taking."82 Since that 1922 opinion, courts and legal
scholars have grappled with how and where that imaginary line is to be
drawn. Under what circumstances can it be said that governmental
regulation has gone "too far"?
Legal literature contains many efforts to set forth the relevant tests,
theories, and standards for drawing the Holmesian taking line." Never-


81. 277 U.S. at 188-89.
82. 260 U.S. 393, 415 (1922).
83. See, e.g., Fred Bosselman, David Callies, & John Banta, The Taking Issue: An Analysis of
the Constitutional Limits of Land Use Control (Washington, D.C.: Government Printing Office,
1973); Philip Soper, The Constitutional Framework of Environmental Law 20, 50-71 in Erica L.
Dolgin & Thomas G. P. Guilbert, eds., Federal Environmental Law (St. Paul: West Publishing
Co., 1974); Arvo Van Alstyne, Statutory Modification of Inverse Condemnation: The Scope of
Legislative Power, 19 Stan. L. Rev. 727 (1967); Arvo Van Alstyne, Taking or Damaging by Police
Power: The Search for Inverse Condemnation Criteria, 44 S. Cal. L. Rev. 1 (1970); Frank I.
Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Com-
pensation" Law, 80 Harv. L. Rev. 1165 (1967); Joseph L. Sax, Takings, Private Property and
Public Rights, 81 Yale L.J. 149 (1971); Joseph L. Sax, Takings and the Police Power, 74 Yale L.
J. 36 (1964); Allison Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of
Supreme Court Expropriation Law, 1962 Sup. Ct. Rev. 63; Robert Kratovil & Frank J. Harrison,
Jr., Eminent Domain-Policy and Concept, 42 Calif. L. Rev. 596 (1954).











670 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647



theless, the issue remains one of the more difficult and perplexing prob-
lems for courts; the law is still in disarray. The most that can be con-
cluded safely is that (1) each individual case will be considered on its
own merits;"8 and (2) the judicial difficulty probably indicates the need
for more legislative attention to the question." Some observations
about the relationship of the taking issue to interim development con-
trols should nevertheless be made.
The California Court of Appeal's decision in Candlestick Properties,
Inc. v. San Francisco Bay Conservation and Development Commis-
sion86 is important because the Bay Conservation and Development
Commission (BCDC) and coastal commission structures are "strikingly
similar." Candlestick acknowledged Pennsylvania Coal: "Without ques-
tion, an undue restriction on the use of private property is as much a
taking for constitutional purposes as appropriating or destroying it."87


84. The Supreme Court's opinion in Penn Cent. Transp. Co. v. City of New York, 98 S. Ct.
2646 (1978), upholding, as against a taking attack, New York City's Landmarks Preservation Law
as applied to Grand Central Terminal, continues to recognize the validity of the Holmes Penn-
sylvania Coal approach. Justice Brennan's opinion for the Court adds:
The question of what constitutes a "taking" for purposes of the Fifth Amendment has
proved to be a problem of considerable difficulty.... this Court, quite simply, has been
unable to develop any "set formula" for determining when "justice and fairness" require
that economic injuries caused by public action be compensated by the Government, rather
than remain disproportionately concentrated on a few persons.... Indeed, we have fre-
quently observed that whether a particular restriction will be rendered invalid by the
Government's failure to pay for any losses proximately caused by it depends largely "upon
the particular circumstances [in that] case."
Id. at 2659.
85. See, e.g., Final Report of the Governor's Property Rights Study Commission 12-13
([Tallahassee, Fla.] Mar. 17, 1975). The Florida legislature enacted, in 1978, a "property rights"
bill, which provides, inter alia:
Any person substantially affected by a final action of any agency with respect to a permit
may seek review within 90 days of the rendering of such decision and request monetary
damages and other relief in the circuit court in the judicial circuit in which the affected
property is located; provided, however, that circuit court review shall be confined solely to
determining whether final agency action is an unreasonable exercise of the state's police
power constituting a taking without just compensation.
Ch. 78-85, Fla. Stats. West's Fla. Sess. Law Service, 1978, no. 2, at 190.
If the court determines the decision reviewed is an unreasonable exercise of the state's
police power constituting a taking without just compensation, the court shall remand the
matter to the agency which shall, within a reasonable time: (1) Agree to issue the permit; or
(2) Agree to pay appropriate monetary damages, provided however, in determining the
amount of compensation to be paid, consideration shall be given by the court to any
enhancement to the value of the land attributable to governmental action; or (3) Agree to
modify its decision to avoid an unreasonable exercise of police power.
Id. This act implemented some, but not all, of the recommendations of earlier studies. See also
Florida, House of Representatives, Committee on Natural Resources, Seminar on "The Constitu-
tional and Legal Limits to the Regulation of Private Land" (Tallahassee, Jan. 23-24, 1975); Van
Alstyne, Statutory Modification, supra note 83; id., Taking or Damaging, supra note 83.
86. 11 Cal. App. 3d 557, 89 Cal. Rptr. 897 (1st Dist. Ct. App. 1970).
87. Id. at 572, 89 Cal. Rptr. at 906.










No. 4 COASTAL LAND MANAGEMENT 671


The BCDC denial of a permit to fill a parcel of land in San Francisco
Bay, however, clearly "does not go beyond proper regulation such that
the restriction would be referable to the power of eminent domain
rather than the police power." After distinguishing two contemporary
cases less solicitous of government's power to regulate wetlands, the
court explained:
The purpose of the regulations and restrictions imposed in the instant
case is not merely to provide open spaces. Rather, they are designed to
preserve the existing character of the bay while it is determined how the
bay should be developed in the future.88
The court also distinguished a case that found that a California
county's restrictions on land were intended to prevent any increase in
the cost of acquisition of the lands between enactment of the ordinance
and the county's decision to acquire the property. While acknowledging
that regulation for that purpose is "clearly unreasonable," the court
held that the BCDC regulation was "a valid exercise of the police
power" and that the appellant-landowner "was not entitled to damages
for confiscation of its property without compensation."89
In 1974 the California Supreme Court considered the Veta Com-
pany's inverse condemnation claim for damages of $8,815,250 for an
alleged unconstitutional taking of its property by denial by the Califor-
nia Coastal Zone Conservation Commission of an application for a per-
mit to develop land within the coastal zone regulated by Proposition
20. Veta alleged that the "permit was denied in order that its land
would 'remain undeveloped and devoted to, and held for, public use as
open space land.' The issue was posed starkly, since it was before the
court on a general demurrer. Nevertheless, the court upheld the regula-
tion, relying on Miller v. Board of Public Works,90 Candlestick," and
other cases upholding temporary measures to preserve the status quo
pending adoption of a more comprehensive plan. The court said there
was no taking "at this time," reminding us that beyond some period of
time interim development controls might be held to have gone "too
far."92


88. Id.
89. Id.
90. 195 Cal. 477, 234 P. 381 (1925), cert. denied, 273 U.S. 781 (1927).
91. 11 Cal. App. 3d 557, 89 Cal. Rptr. 897 (1st Dist. Ct. App. 1970).
92. Recent cases suggest that periods considerably longer than California's interim three-year
process might be upheld. Golden v. Planning Board of Ramapo, 30 N.Y.2d 359, 285 N.E.2d 291,
334 N.Y.S.2d 138, appeal dismissed, 409 U.S. 1003 (1972), for example, upheld a "timed growth"
regulatory scheme that could conceivably restrict development in some areas for as long as 18
years. But there was a vague judicial uneasiness, a feeling of "something inherently suspect in a










672 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


The above cases suggest that in most jurisdictions imposition of
"reasonable" controls to allow for formulation of permanent planning
and regulatory mechanisms will probably survive either due process or
taking attacks. The judiciary's deference to legislative judgments on
these questions therefore places a special obligation on legislatures to
design mechanisms that properly recognize and balance all the
legitimate, competing values. Legislatures should apply a more stringent
test to their statutes than that they barely pass constitutional muster.
Institutional arrangements should leave maximum incentives for private
initiative and local government initiative while still accomplishing the
purposes of the legislation, such as protecting the environment.
The American Law Institute addressed itself to interim development
controls in article 7 of the Model Land Development Code, which pro-
vides for designation of "areas of critical state concern." First, the
code provides for an immediate "freeze" on development, except for
emergencies, upon notification of proposed rule making.9 The interim
freeze can last for no longer than 3 months following notice of a pro-
posed rule and is intended to prevent the mere discussion of a pro-
posal-to regulate wetlands, for example-from unleashing a massive
alteration or conversion of the very lands to be regulated. Second, the
ALI code provides for limited regulation for a period not to exceed 15
months from the time a parcel of land is designated a protected area
until final regulations are adopted.94 The reporters for the ALI code
cite several cases where the "courts have upheld similar temporary land
use restrictions during the time when a plan was being prepared,"95 and
cite secondary authorities, such as Robert Freilich's study96 in which he


scheme which, apart from its professed purposes, effects a restriction upon the free mobility of a
people until sometime in the future when projected facilities are available to meet increased
demands." Id. 285 N.E.2d at 300. Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956 (1st
Cir. 1972), upheld small (1,000 population) Sanbornton's six-acre minimum lot size requirement
against a frustrated developer's taking attack, based on precedents such as California's
Candlestick and New York's Ramapo. Also cited was the interim program of Boulder, Colorado,
which on an emergency basis restricted growth until an adequate study of future needs could be
made. Again the court reflected judicial concern, wondering whether the motivation was exclu-
sionary and calling for more homework.
93. ALI Code, supra note 70, 7-202(2).
94. Id. 7-205.
95. Id., Reporters' Note at 266. But cf. Horne v. Board of Supervisors, No. 31309 (Va. Cir.
Ct. 1974), striking down Fairfax County's 18-month ban on building new subdivisions, town
houses, apartments, and industrial complexes not already approved by the county. This interim
development ordinance, enacted to prevent a "race of diligence," while a permanent ordinance
was being prepared is described in the Wash. Post, Jan. 14, 1975, at Al, col. 1.
96. Freilich, supra note 69; Comment, Zoning-a Time to Plan: Interim Zoning for Balanced
Development in Rural New England, 53 B.U.L. Rev. 523 (1973).










No. 4 COASTAL LAND MANAGEMENT 673


estimates 2 years as being the length of an interim period that one
could safely expect the courts to uphold as reasonable.
In summary, the interim regulatory process of Proposition 20 was
never seriously vulnerable to either due process or taking attacks.
Courts-and particularly California courts-are reluctant to substitute
their judgments, on policy-laden land use decisions, for those of the
legislature. Thus, challenges to interim regulation under Proposition 20
need to be redirected. Those criticizing the legislation could ask: (1)
Conceding that the interim regulatory process of Proposition 20 met
minimal tests of constitutionality, were the means chosen the most
desirable not only for accomplishing the environmental protection pur-
poses of Proposition 20 but also for meeting other tests of good public
policy? For example, (a) Did the process coordinate well with other
governmental regulatory programs? (b) Did it accommodate funda-
mental rights not explicitly spelled out in the act itself? (2) To what ex-
tent can similar restrictions be constitutionally imposed for an addi-
tional three or four years while California's local governments prepare
and secure certification of local coastal programs? In the final part of
this article, I comment on these and similar questions.
5. Beneficent Interpretation and Administration
There is evidence that the state commission implemented the interim
permit process in a politically sensitive manner, that its members recog-
nized that public perceptions of coastal land regulation were being
formed by commission actions. The approval of additions to the San
Onofre nuclear generating plan is a prime example. This 850-million-
dollar expansion, involving the construction of two 1,140-megawatt
reactors, had already received permits from the Atomic Energy Com-
mission, the California Public Utilities Commission, the State Water
Resources Control Board, and others and had been approved by the
San Diego Regional Coastal Commission by a nine to one vote when it
was appealed to the state commission. The state commission staff
recommended that the permit be denied because the construction would
destroy unique and beautiful bluffs and canyons and the plankton and
the larvae of sea animals.7" Then, despite an address by Chairman Mel-



97. The facts in this paragraph are drawn from Healy, Saving California's Coast, supra note
19, at 380-83, and where specifically attributed, Joseph Bodovitz, telephone conversation, Cham-
paign, Ill. to Mill Valley, Cal., Nov. 17, 1978. Bodovitz emphasized that the coastal commissions
were required to apply different standards than those applicable in the case of the earlier permits.










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


vin Lane in which he discussed the political impact of denying this per-
mit, the state commission denied the project by a five (against the ap-
plication) to six (for the application) vote. (A two-thirds vote was re-
quired because the project required closing part of a beach during con-
struction.)
After a month of negotiations, widely reported in the newspapers,
the commission agreed to rehear the case. Upon reconsideration and
imposition of conditions described by one newspaper as "the strictest
levied by any state agency on a nuclear power plant built in this coun-
try,"98 the commission approved the project by a ten to two vote.
Joseph Bodovitz insisted, in November 1978, that if the applicant "had
been willing to accept reasonable conditions from the start they would
have gotten their permit the first time around"; he noted also that,
subsequent to the first vote, "the attorney general issued an opinion
that certain issues were preempted by federal legislation." However, the
acute public awareness of the energy crisis in early 1974, as much as the
compromises and other matters, undoubtedly was a major factor in the
commission's final decision to approve the plant.
Although this study has not included a systematic analysis of state or
regional commission permit decisions, the preliminary findings of other
researchers" tend to corroborate some strong impressions about com-
mission permit policies that I had gained while researching this article.
An often-cited example of political sensitivity, for example, was the
tendency of the commissions to approve small, single-unit develop-
ments.100
Between early 1973 and December 1975, the regional and state com-
missions processed over 16,000 permits.101 The impression I gained
from numerous interviews and review of other data was that the state
commission's record reflected fair and even-handed treatment of appli-


98. Id. (citing L.A. Times, Feb. 21, 1974).
99. See, e.g., Paul Sabatier, State Review of Local Land Use Decisions: The California Coastal
Commissions (Draft, May 1976). Sabatier's preliminary findings, based on a random -ample of
the approximately 4 percent of regional decisions that were appealed to the state commission from
February 1973 to June 1975, include the following: "35% of the permit appeals involved large
residential developments and fully 60% of all appeals involved some sort of residence." But he
found that "the rate of denials was roughly proportionate to the size of the development. Pro-
posals for large multi-unit residences and motels had very rough sledding, with commercial and
recreational facilities being denied over 40% of the time. The lone exceptions to the generalization
involved lot splits and single family residences in rural subdivisions, which also had denial rates of
over 40%."
100. See, e.g., id.
101. Letter from Chairman M. B. Lane, 1975 Coastal Plan, supra note 1, at iv.


1978:647











No. 4 COASTAL LAND MANAGEMENT 675


cants, especially considering number and variety of appeals. But some
people cited instances of "uneven"'02 administrative decision. Any
regulatory process that places a decision-making body in a defensible
posture of denying most applications, yet allows for flexible implemen-
tation, is a model for potential administrative abuse. The applicants
become hopeful grantees of governmental beneficence, and the
decision-making body a benevolent dispenser of governmental
privileges. Abuses can occur, especially in the conditions, limitations,
and restrictions imposed on developers. I observed only traces of abuses
in California, but the potential problem is serious enough that I shall
treat it in more detail in the succeeding article in this series.
6. The Nature of the Commissions' Hearings
An application was processed through the coastal permit process if
an applicant could show "approval in concept" from each local entity
having jurisdiction"' and if the development was not "vested"l04 or
"exempt."'05 Special expedited procedures, "administrative" or emer-
gency permits, applied in certain cases;'06 otherwise a regular permit ap-
plication was processed.
The procedure before either a regional commission or the state com-
mission has been well summarized as follows:
At the public hearing the permit applicant makes a presentation of his
project, if he "wishes to expand" on the application. Faced with swollen
dockets and marathon meetings, the commissions tend to strictly curtail
presentation time. After the applicant's presentation "any person wishing
to speak to an application shall be heard," until the commission has


102. Interviews with Lorell Long, supra note 50, and Celia Von Der Muhll, American Institute
of Planners, northern California coastal coordinator, Sierra Club, in Santa Cruz, Aug. 25, 1975,
in which the latter cited the San Onofre nuclear plant decision as the "most blatant" capitulation
to political pressure and also expressed general "disappointment" and criticism for "uneven" ad-
ministration in Southern California, where she believed too many major developments that could
have been denied were approved. An executive director of a regional commission, whom I shall
not name, was complimentary of the quality of the state staff and commission members and was
generally supportive of their implementation of the act, but he nevertheless concluded that "the
record of their decisions bespeaks a significant amount of capricious, arbitrary, and uninformed
actions." He believed that the regional commissions were less likely to be arbitrary, capricious,
and uninformed because of the more intensely focused attention on their decisions: "They may be
capricious or wrong in the end, but they are certainly going to be watched more closely." Inter-
view, Feb. 1975.
103. Regulations of the California Coastal Zone Conservation Commission 13210 (Jan. 23, 1974)
(codifed in 14 Cal. Admin. Code, div. 5.5, repealed 1/19/77) [hereinafter cited as 1972 cczcc Regs.].
104. 1972 CCZCA, supra note 3, 27404.
105. Id. 27405.
106. Id. 27422; 1972 cczcc Regs., supra note 103, 13010.










676 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


allowed "a reasonable opportunity to present all questions and points of
view." Additional arguments and rebuttals to other speakers are submit-
ted in writing for circulation to the commissioners. The commissioners
may ask follow-up questions of any applicant at the meeting following
the public hearing on his proposal. The commission need not conduct the
hearing according to evidentiary rules and may consider any serious and
relevant material. In extraordinary cases a commission may even take a
field trip to the site of the proposed activity.107
The state commission's regulations sought to expedite permit applica-
tions, imposing strict time limits on oral presentations and providing an
abbreviated procedure called the "consent calendar" in which "all in-
cluded items [were] considered... as if they cumulatively constituted a
single permit application."'08
The California courts have had to deal with contentions (1) that the
act failed to assure procedural due process to applicants, and (2) that
the process was unconstitutional because the act required that the appli-
cant carry the burden of proof although the administrative provisions
allowed the applicant only ten minutes in which to present his project
at the hearing. CEEED v. California Coastal Zone Conservation Com-
mission109 rejected the former, while Reed v. California Coastal Zone
Conservation Commission"' rejected the latter. The Reed court said:
The safeguards of due process are afforded applicants.... Petitioners
are granted a public hearing and allowed to submit any supplemental
written material they desire.... [And the act] provides a right to judicial
review of the commission's decision .... "'
Hearings before either a regional commission or the state commis-
sion, on appeal, were de novo."2 The state commission had wide dis-
cretion not only because of the latitude afforded by making decisions
on a case-to-case basis"' but also because it could refuse to hear an ap-
peal by finding that the appeal raised "no substantial issues."'
The rationale for the de novo requirement was that a "chain of
responsibility" was created: "the regional commission was responsible
for recognition of the regional effect upon the ecosystem," and, upon

107. Statutory Comment, supra note 19, at 483.
108. 1972 cczcc Regs., supra note 103, 13350-13351.
109. 43 Cal. App. 3d 306, 118 Cal. Rptr. 315 (4th Dist. Ct. App. 1974).
110. 55 Cal. App. 3d 889, 127 Cal. Rptr. 786 (1st Dist. Ct. App. 1975).
111. Id. at 895, 127 Cal. Rptr. at 790.
112. See, e.g., Patterson v. Central Coast Regional Coastal Zone Conservation Comm'n, 58
Cal. App. 3d 833, 838, 130 Cal. Rptr. 169, 172 (1st Dist. Ct. App. 1976).
113. Id. at 840, 130 Cal. Rptr. at 173 (citing Strumsky v. San Diego County Employee Retire-
ment Ass'n, 11 Cal. 3d 28, 520 P.2d 29, 112 Cal. Rptr. 805 (1974)).
114. 1972 CCZCA, supra note 3, 27423(c).











No. 4 COASTAL LAND MANAGEMENT 677


appeal, the state commission took a broader look, "a new, unlimited
look at the same request for a permit by a de novo public hearing.""15
The California courts characterized the commissions' permit decision
as "adjudicatory" and thus subject to a more stringent standard of
judicial review than the "arbitrary and capricious" standard applied to
legislative decisions."' A two-tier rule of judicial review was therefore
applicable:
[I]f the agency decision substantially affects a fundamental vested right,
the trial court must exercise its independent judgment on the evidence
and find an abuse of discretion if the findings are not supported by the
weight of the evidence... otherwise, the trial court's inquiry is limited to
a determination of whether the findings are supported by substantial
evidence in light of the whole record."7
7. Composition of the Decision-making Bodies
Proposition 20 vested a large amount of discretionary power in the
state commission and the six regional commissions. The membership of
the commissions was therefore critical. The six regional commissions
had one-half local government membership and one-half "public repre-
sentatives," appointed "equally by the Governor, the Senate Rules
Committee and the Speaker of the Assembly.""8
The state commission had 12 members, 6 of whom were representa-
tives from the regional commissions and 6 of whom were from the
"public," other than the regional commissions, and were selected
equally by the governor, the senate rules committee and the speaker of
the assembly."9 The act did not specify a fixed term of office, and the
California Supreme Court held that a commissioner could be removed
from office at the pleasure of the appointing power.120


115. REA Enterprises v. California Coastal Zone Comm'n, 52 Cal. App. 3d 596, 605, 125 Cal.
Rptr. 201, 207 (2d Dist. Ct. App. 1975).
116. See, e.g., Patterson v. Central Coast Regional Coastal Zone Conservation Comm'n, 58
Cal. App. 3d 833, 130 Cal. Rptr. 169 (1st Dist. Ct. App. 1976).
117. Id. at 840, 130 Cal. Rptr. at 173.
118. 1972 CCZCA, supra note 3, 27202. The North Coast Regional Commission, for example,
had 6 out of 12 members from local governments, i.e., a county supervisor and a city councilman
from each of the three counties of Del Norte, Humboldt, and Mendocino. On the North Central
Coast Regional Commission for Sonoma, Marin, and San Francisco counties the governmental
representatives included one supervisor and one city councilman each from Sonoma County and
Marin County, two supervisors of the City and County of San Francisco, and one delegate to the
Association of Bay Area Governments to reflect the special regional interests of the larger San
Francisco metropolitan area. Id. 27202(b).
119. Id. 27202.
120. Brown v. Superior Court, 15 Cal. 3d 52, 538 P.2d 1137, 123 Cal. Rptr. 377 (1975). One of
Governor Reagan's Dec. 1972 appointees, John Mayfield, was removed by Governor Brown on
May 18, 1975. The California Supreme Court, in upholding the removal, explained: "The drafters


L










678 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


Generally, the policy of the state commission was considered to be
more favorable to conservation than was the policy of most of the regional
commissions. Paul Sabatier tentatively reached that conclusion121 and
said his conclusions were "generally consistent with the expectations of
the framers of the Coastal Initiative, [indicating] that the regions oc-
cupied an intermediate role on the policy spectrum between relatively
development-oriented local governments and the more restrictive State
Commissions."122
The composition of a state coastal commission is one of the more im-
portant issues facing those who fashion new institutional mechanisms
for coastal zone management. Coastal policy formulation and imple-
mentation should be relatively flexible and discretionary, particularly in
the early phases of a program.'23 Good choices in coastal zone manage-
ment will require decision-making bodies vested with considerable dis-
cretion, representative of all citizens affected, and structured to max-
imize consideration and weighing of all the competing values at stake.
In deciding on the appropriate composition of the decision-making
body, legislators should reflect on three aspects of coastal decision-
making: (1) that different kinds of decisions about coastal land use will
require different degrees of discretion; (2) that some uses of the land
will have significant extraterritorial effects; and (3) that the decision-
making body will be required to weigh competing values.
First, consider the degree of discretion involved in different kinds of
coastal decisions. A basic tenet of our system of government is the no-
tion that discretionary public choices should be assigned to politically
responsive legislative bodies. Conversely, the more susceptible a prob-
lem to application of predictable rules, the more desirable it is to assign
the decision to a judicial body protected from political pressures. Ap-
plying these considerations to California's interim regulatory process,
one finds decisions ranging all the way along a spectrum from max-
imum discretion, as when the state commission voted on a general
coastal policy recommendation, to minimum discretion, as when the
commission issued an exemption or vested rights order.


and voters could reasonably choose to establish a commission of limited duration, but one com-
posed of politically responsive members subject to removal by elected officials." Id. at 56, 538
P.2d at 1139, 123 Cal. Rptr. at 379.
121. Sabatier, supra note 99.
122. Id.
123. See Walter Gellhorn, When Americans Complain: Governmental Grievance Procedures 13
(Cambridge: Harvard University Press, 1966), warning that while inflexibility may preclude some
bad decisions, it equally precludes good ones.









COASTAL LAND MANAGEMENT


Second, geographical representation must be considered. We may ro-
manticize about the value of unfettered individual choice, but our legal
system has long recognized, through the law of nuisance and the like,
that the freedom of one individual depends on acceptance of some be-
havioral limits by each individual. Similarly, the more the effects of one
local government's land use decisions are felt by neighboring jurisdic-
tions, the more compelling is the need for mechanisms to resolve inter-
governmental disputes. These extraterritorial effects are well captured in
the saying, "one community's toilet may be another community's
drinking fountain." Coastal decision making thus requires decision-
making bodies responsive not only to the majority of citizens within
local governmental boundaries but also to affected minority groups
within the boundaries who are not represented by majority views and to
affected citizens outside those boundaries.
Third, the policy-making aspect must be considered. Coastal land use
decisions-perhaps as much as any kind of decision in our legal sys-
tem-have complex environmental, economic, and social ramifications.
The decision-making body must be structured to maximize the prob-
ability that all competing values will be considered and weighed. And
since the relative priorities and relationships of these values are con-
stantly in flux, arguments can be advanced that maximum flexibility
will be necessary.
The foregoing analysis is designed to focus on two of the more im-
portant considerations in determining the appropriate composition of
the decision-making bodies: (1) Should coastal decision-making bodies
be composed of generalists or experts? (2) To what degree should the
decision-making body be politically responsive?
Melvin Lane, the first chairman of the state coastal commission and
former chairman of the San Francisco Bay Conservation and Develop-
ment Commission, strongly favors "generalists" for the major coastal
policy decisions.124 Although he would not automatically exclude per-
sons with specialized, technical expertise, he believes such persons serve
better as staff members than as commission members. Lane's call for
generalists, based on unmatched experience in the field, deserves careful
consideration and reflects a philosophy not unlike that espoused in a re-
cent law review article on "Regulation and the Political Process," in

124. Interview with Melvin B. Lane, chairman, California Coastal Zone Conservation Commis-
sion, in Menlo Park, Feb. 12, 1975. See generally Scott, supra note 19, at 79-97 ("[P]roponents
of the 'intelligent-layman' model substantially outnumber those who argue for professional
disciplinary and expertise requirements." Id. at 97).



|


No. 4










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


which the authors sharply question the traditional faith in independent
expertise: "As the present drive for deregulation shows, we lack con-
fidence in the ability of appointed and independent 'experts' to reach
the correct balance between social goals and economic costs."125
A related question is where, within state government, a state-level
land use decision-making agency should be placed. The ALI Model Land
Development Code recommends, in article 8, that "state land planning
functions be assigned to a state land planning agency which will act as
an integral part of, but serve as a separate division of, the agency
responsible for state planning."'26 The reporters emphasized the impor-
tance of gubernatorial commitment to the program and of the impor-
tant connection between planning and regulation: "By serving as ad-
visors to decision-makers planners are forced to relate their activities to
political realities-to avoid planning for planning's sake."'27
Assuring that the state planning function will have gubernatorial
commitment should be a major goal of any state planning effort. State
plans have the potential to affect profoundly major development deci-
sions throughout the state. Hence, as between political accountability
on the one hand or objectivity and freedom from political influence on
the other, statewide public policy is better served by erring, if at all, on
the side of too much gubernatorial oversight of the planning function.
The ALI reporters were wise in not recommending the use of an in-
dependent or semiautonomous planning agency to undertake the code's
state planning responsibilities.'28 On the other hand, the broader plan-
ning and regulatory purposes of the California coastal process were well
served by using a "semiautonomous" commission.
The California coastal commissions were politically accountable:
members were appointed by elected officials and could be removed at


125. Lloyd N. Cutler & David R. Johnson, Regulation and the Political Process, 84 Yale L.J.
1395, 1405-6 (1975).
Expert advice and the independence of those who give this advice are still of great impor-
tance, and ultimate decisionmakers cannot be without such counsel. However, as we are
beginning to recognize, regulation today involves political choices between competing in-
terests-concerning which economic and social goals to pursue, how far and at what
economic and social costs. Under our constitutional scheme, these are choices that only
politically accountable officials who are "dependent" rather than "independent" and
"generalists" rather than "experts" should be making.
Id.
126. ALI Code, supra note 70, at 8-101 note, at 303-4.
127. Id. at 305.
128. Id. at 306. See also Cutler & Johnson, supra note 125, at 1397, 1399, emphasizing the im-
portance of political responsibility.


1978:647


I,,,













will by their respective appointing authorities. The commissioners,
nevertheless, exhibited a reasonable degree of fairness and independence
in applying the legislative standards. The first chairman, Melvin Lane,
for example, although generally considered an environmentalist and
although appointed by Governor Ronald Reagan (a governor not
generally regarded as a leader in environmental protection programs)
favored neither side and enjoyed an enviable reputation in California
for independence and fairness. The state commission was thought
generally to have an environmental protection bias, but then its citizen-
derived mandate clearly called for major attention to environmental
values.
The regional commissions were also designed to reflect local,
regional, and statewide constituencies. Local governments were repre-
sented by half the members, yet broader interests could also be rep-
resented through the "public" appointments.
The combination of a discretionary decision-making process and po-
litically responsive decision makers increased the probability that com-
peting economic, environmental, and social policies would be con-
sidered. The commissions received some criticism for letting political
considerations affect their decisions, but, for reasons similar to those
set forth above, I conclude that the balances struck in the design of the
California coastal commissions were sound. Politically responsive deci-
sion makers were particularly needed during the interim regulatory
phase while policies were being formulated. Such political responsive-
ness provided a means to correct commission behavior expeditiously if a
strong public consensus had developed in opposition to commission
work. This sensitivity to prevailing public attitudes also undoubtedly
contributed to passage of the California Coastal Act of 1976.
8. Vested Rights and Exemptions
Questions of vested rights and exemptions, that is, the threshold
question of whether a proposed development needed a coastal commis-
sion permit, were the sources of much of the Proposition 20 litigation129

129. See, e.g., AVCO Community Developers, Inc. v. South Coast Regional Comm'n, 17 Cal. 3d
785, 553 P.2d 546, 132 Cal. Rptr. 386 (1976), appeal dismissed, 97 S. Ct. 1089 (1977); San Diego
Coast Regional Comm'n v. See the Sea, Ltd., 9 Cal. 3d 888, 513 P.2d 129, 109 Cal. Rptr. 377
(1973); California Cent. Coast Regional Comm'n v. McKeon Const., 38 Cal. App. 3d 154, 112
Cal. Rptr. 903 (1st Dist. Ct. App. 1974); Coastal Southwest Dev. Corp. v. California Coastal
Zone Conservation Comm'n, 55 Cal. App. 3d 525, 127 Cal. Rptr. 775 (4th Dist. Ct. App. 1976);
No Oil, Inc. v. Occidental Petroleum Corp., 50 Cal. App. 3d 8, 123 Cal. Rptr. 589 (2d Dist. Ct.
App. 1975); Oceanic California, Inc. v. North Central Coast Regional Comm'n, 63 Cal. App. 3d


No. 4


COASTAL LAND MANAGEMENT




'---1




682 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


and occupied much of the staff and commission time. The vested rights
section of the California act'30 is grounded in well-accepted principles
of equitable estoppel and constitutionally derived notions of "vested
rights." A VCO Community Developers, Inc. v. South Coast Regional
Commission, a 1976 California Supreme Court case, enunciated the
basic concept:
[I]f a property owner has performed substantial work and incurred sub-
stantial liabilities in good faith reliance upon a permit issued by the
government, he acquires a vested right to complete construction in ac-
cordance with the terms of the permit.'31
The possibility of "vesting" projects may lead to unforeseen effects.
Two effects of major regulatory programs became evident in both
California and Florida: (1) the debate and passage of such legislation
may even stimulate development activity by encouraging developers to
move quickly to "vest" their projects or to build in nearby unregulated
areas; and (2) there are a large-even surprising-number of vested
developments that will be able to proceed to completion notwithstand-
ing the new regulatory program. I shall provide additional analysis on
this complex and politically volatile subject in the succeeding article of
this series, on Florida, dealing in this article with but one aspect of the
problem.
Developers of large residential communities normally plan their devel-
opments in phases, sometimes projected to occur over 20 to 30 years or
even longer. Many of the planning costs and capital investments,
however, must be incurred in the early stages of development. Devel-
opers will generally make these financial commitments only if the
projected financial return is commensurate with the risk. Uncertainties
about whether subsequent phases of development will be approved nec-
essarily increase the investment risk. And such uncertainties also create
uncertainties in the financial markets. Therefore, the vested-rights
issue-and the whole issue of flexible decision making-must be ana-
lyzed in the larger context of housing needs. For example, what types
of developers can afford to function within a given scheme regulating
land use? What kinds of development will be undertaken? What will be


57, 133 Cal. Rptr. 664 (1st Dist. Ct. App. 1976), appeal dismissed, 97 S. Ct. 2668 (1977); Patterson
v. Central Coast Regional Coastal Zone Conservation Comm'n, 58 Cal. App. 3d 833, 130 Cal.
Rptr. 169 (1st Dist. Ct. App. 1976); Transcentury Properties, Inc. v. State, 41 Cal. App. 3d 835,
116 Cal. Rptr. 487 (1st Dist. Ct. App. 1974).
130. 1972 CCZCA, supra note 3, 27404.
131. 17 Cal. 3d 785, 791, 553 P.2d 546, 550, 132 Cal. Rptr. 386, 389 (1976).


1










No. 4 COASTAL LAND MANAGEMENT 683


the impact on land prices? On housing costs? On the kinds of housing
built? These and similar questions will be explored below and in the
subsequent Florida article.
B. The Effects of the Interim Regulatory Phase
1. Effects on California Institutions
Proponents and opponents of Proposition 20 agree that the coastal
commission experience contributed to a significant change in institu-
tional arrangements-changes in intergovernmental relationships and
the relationships of government to developers, landowners, and the
general public. Stanley Scott, a Berkeley political scientist, explained
that "the enactment of Proposition 20 changed the institutional history
of this state, at least momentarily. It is like a major change in the land-
scape; things are not the same anymore." He emphasized the state
commission's "flavor of openness and participation as compared with
most of the other state commissions" and attributed its popularity with
the public to "the participatory thing that is in the air; people don't
want to lose that."132
Some developers and their attorneys drew different conclusions from
the same facts. An executive of a major land development company
whose large project at Half Moon Bay was substantially frustrated by
Proposition 20 explained: "The environmental viewpoint was not inte-
grated into the traditional land regulatory system originally. The envi-
ronmentalists were not really listened to, so they decided not to work
within the existing system, but to seek new government at a different
level so that the environmental view could be heard." In 1975, he
believed, as a result, "we have completely broken the system down.""33
Two major developers' attorneys echoed the same theme. As one put it,
"environmentalists think only of corruption in terms of the old days
and don't recognize that when they call up [a decision maker or influ-
ential person] and say 'Hey, Charlie, why don't you do this or that,'
and he says, 'Yeah, that's really a great idea,' that the system is never-
theless perverted."134 Another attorney emphasized how Proposition 20


132. Interview with Stanley Scott, assistant director, Institute of Governmental Studies, Univer-
sity of California, in Berkeley, Feb. 11, 1975. See generally Scott, supra note 19, at 61-63, 72-73
("Perhaps the most widely recognized and universally applauded characteristic of the coastal com-
missions is their visibility and the 'open' style with which they transact public business. This is a
powerful asset." Id. at 61).
133. Interview with H. J. Frazier, executive vice-president, Half Moon Bay Properties, Inc., in
Half Moon Bay, Cal., Feb. 15, 1975.
134. Ellman interview, supra note 66.










684 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


had given a political forum to environmentalists and how, in his
opinion, there were instances of abuses where public statements concer-
ning a pending application were made by a commissioner in a manner
inappropriate for a quasi-judicial body.'"
Processing over 16,000 permits in a heterogeneous state such as
California also sensitized coastal policy makers to the need for a perma-
nent planning and regulatory process that could account for regional
and local differences. California may well have more physical, eco-
nomic, and social diversities in its thousand-mile coastal zone than any
other state.136 Some of the differing attitudes of the six regional com-
missions should illustrate this point. The problems of the north coast
around Eureka are far different from those of urbanized Los Angeles
or of San Diego, with its international and military problems. Even a
comparison of Los Angeles and San Francisco is difficult because of
topographical, climatological, and political differences. For example,
much of Southern California is a coastal plain with little distinction be-
tween coastal and inland areas until the coastal ridge begins north of
Santa Barbara.'37 The hills and climate of San Francisco contrast sharp-
ly with the coastal plain area.
Each region has its unique political customs and governmental bound-
aries. San Diego, for example, is located in a large county comprising
4,261 square miles of land with a population of 1,357,782 residents.
The city of San Diego is located just north of Tijuana, Mexico, and the
United States government has a naval base and other defense establish-
ments there, giving many coastal problems in San Diego national or
even international ramifications. The San Francisco bay area, in con-
trast, reaches into at least seven counties and has become accustomed
to the regional governmental approaches of the Bay Conservation and
Development Commission (BCDC) and the Association of Bay Area
Governments (ABAG).'38
The social, cultural, and political diversities exemplified by a red-
wood logger of far-north Eureka, a counterculture leftist of San Fran-
cisco, and a well-heeled Republican of far-south La Jolla necessitate


135. Krueger interview, supra note 23.
136. California has "1,072 miles of mainland shoreland (excluding San Francisco Bay) and 397
miles of offshore island shoreland." California Coastal Zone Conservation Commissions, Annual
Report 1974, at 4.
137. Interview with Paul Sedway, Sedway/Cooke Urban Planners, in San Francisco, Feb. 10,
1975.
138. See notes 224-25 infra and text at same.


t-









COASTAL LAND MANAGEMENT


flexible land use planning in California. When one speaks of local,
regional, and state planning in California, one must remember that
planning for 1 of the 15 California coastal counties is roughly compar-
able to planning for an entire state such as Hawaii or Vermont. Joseph
Bodovitz, while coastal commission executive director, was very sensi-
tive to the importance of regional differences, noting that it is difficult
to establish policy priorities at the state level "because even a ...policy
[without far-reaching effects] might be the major determinant in a par-
ticular area." 39
The North Coast Regional Commission, for example, deals with three
large counties, Del Norte, Humboldt, and Mendocino. This region is
beyond reasonable commuting distance of San Francisco, the northern-
most large metropolitan area in California. Its major industries are
forestry, agriculture, and fishing. The philosophy and quality of life are
considerably different than in central and southern California. "It is
slower and more peaceful; there is time not to make the mistakes of
southern and central California."'40
Del Norte, the northernmost county, .is about 75 percent publicly
owned and is dominated by the forest industry.'41 It is the site of bitter
environmental-economic battles. The redwood tree, as a unique interna-
tional resource, at once supports the economy and contributes to the
scenic beauty of the area.'42 In no other California area is the clash be-
tween environmental protection and economic interests so sharply
polarized and volatile.
Housing problems in these northern coastal counties are far different
from those in the urban areas. Unlike governments of some large sub-
urban areas near major cities, local governments in the north coast
region have no motive for supporting exclusionary zoning. Instead of
Petaluma-type local effects to slow or stop growth'43 (with the concomi-
tant danger of excluding low- and moderate-income housing), these


139. Bodovitz interview, supra note 46.
140. Interview with John Lahr, executive director, North Coast Regional Commission, in
Eureka, Feb. 17, 1975.
141. Id. Humboldt is the most important timber-producing county, followed by Mendocino and
Del Norte. Id.
142. Id.
143. Petaluma, California, just north of San Francisco, is well known for its growth-control ef-
forts. See Construction Indus. Ass'n v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975), cert.
denied, 424 U.S. 934 (1976) (the Ninth Circuit refused to consider, on grounds of lack of stand-
ing, the federal right-to-travel issue upon which the district court had rested its decision in finding
unconstitutional the "Petaluma Plan" for controlling the influx of new residents).


L^


No. 4










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


counties (which have a predominance of low- and moderate-income
housing) would like to stimulate construction to improve a depressed
economy. 44
In 1975, the major north coast land use problem was land divi-
sion-"someone with a 20-acre parcel who wanted] to split it into 4
parcels." Apparently the state commission applied a policy of approv-
ing such subdivisions only if "80 percent of the surrounding properties
were already developed." But the executive director of the North Coast
Regional Commission believed that this policy, although supportable in
other regions, was not realistic in light of the peculiar north coast
needs. 45
The south coast region, covering Los Angeles and Orange counties,
provides a useful contrast to the north coast region. It included 40 mu-
nicipalities within Proposition 20's coastal planning area, with two mil-
lion people residing in one five-mile stretch along the coast in Los
Angeles.146 The south coast commission processed by far the largest
number of applications during the interim permit phase. Interestingly,
in both the north and south coast regions, there was strong sentiment
that the state's role in coastal management should emphasize natural
resource planning and management. The south coast permit experience
convinced at least David Smith, head of the coastal plan division, that
"all the zoning problems" could not be solved at levels beyond local
governments.'47 He suggested that "if we could come up with a land
use plan or even five or six land use alternatives, we would be just
scratching the surface; as long as a land use pattern is consistent with
the coastal plan, local government should be able to choose from the
thousand land use patterns available to them."
Smith recognized that there are some critical resource zones, such as
"Malibu, the Irvine coastal area, and the offshore islands" that do re-
quire appropriate regional mechanisms to assure proper local manage-
ment. In 1975, he cited Malibu, for example, as having a general plan
that would accommodate a maximum of 23,000 people, but as having
zoning ordinances in effect that would accommodate 140,000 people.'48


144. Lahr interview, supra note 140.
145. Id.
146. Interview with David N. Smith, head, Coastal Plan Division, South Coast Regional Com-
mission, in Long Beach, Feb. 18, 1975.
147. Id.
148. Cf. Coalition for Los Angeles County Planning in the Public Interest v. Board of Super-
visors, Civ. No. C-63218 (Super. Ct. Los Angeles County, Mar. 12, 1975) (relationship of plans to
regulations).


1978:647










No. 4 COASTAL LAND MANAGEMENT 687


Smith concluded that different levels of government should have a
voice, but he cautioned against trying to solve too many problems at
too high a level of government.
In summary, the Proposition 20 experience resulted in significant in-
stitutional changes. Horizontally, increasing attention was devoted to
interagency coordination (e.g., among the coastal, energy, and trans-
portation-planning agencies), which may portend a move in California
toward a stronger state planning process and streamlining of agency
functions.149 Vertically, the coastal commission's experiences regulating
the entire California coastline undoubtedly contributed to its final
recommendation that local governments have a major role in coastal
planning and regulation. As the final report explained:
Because city and county government is accessible and accountable to
its constituents, because statewide coastal concerns should be reflected in
local planning and regulation, and because Plan implementation should
be streamlined to reduce costs and delays, primary responsibilities for
carrying out the Coastal Plan should rest with local governments.'50
2. Environmental Effects
Janet Adams, a leader of the influential California Coastal Alliance,
concluded that the interim program "worked out reasonably as we
predicted.""'' Two Sierra Club representatives expressed some dis-
appointment, however, drawing attention to the general permit ap-
proval record and to the approval of some major developments, partic-
ularly in Southern California, that were thought inconsistent with the
clear resource-protection intent of Proposition 20.'52
Clearly, the figures on applications approved and denied do not pro-
vide adequate data for evaluation of environmental impact; these
figures do not account for "anticipated reaction." There is considerable
evidence that many developers deferred or completely changed their
projects. In 1975, then-executive director Bodovitz believed there were
many instances where "a developer understood] that his proposal [was]

149. See Milton Marks & Stephen L. Taber, Prospects for Regional Planning in California, 4
Pac. L.J. 117, 142 (1973). Cf. notes 203-14 infra and text at same.
150. 1975 Coastal Plan, supra note 1, at 12.
151. Interview with Janet K. Adams, executive director, California Coastal Alliance, in Wood-
side, Cal., May 27, 1975.
152. Von der Muhll interview, supra note 102 ("disappointed" but recognized that it "possibly
deterred development," citing "almost no new development in open underdeveloped areas"); in-
terview with Lucille Vinyard, Sierra Club, in Trinidad Beach, Cal. (north of Eureka), Feb. 17,
1975. Perhaps the most sobering environmental evaluation was by the vice-chairperson of the state
coastal commission who suggested that "passage of the act may have even stimulated
development." Interview with Ellen Stern Harris, in Los Angeles, Feb. 19, 1975.










688 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


out of bounds and that there [was] no reason to spend the money to try
to get a permit."'" The executive director of the San Diego Regional
Commission pointed out that "the major residential developer [had]
just stopped trying to build his condominium along the shores."'54
Similarly, the director of the North Central Coast Regional Commission
noted that approved development was "within existing settlements, or
within pre-approved developments. Those with undeveloped ranch land
wanting to subdivide knew they were likely to get rejections.'"' The
San Diego director, emphasizing the amount of delay to major projects
posing significant threats to the shoreline resources and the changes in
developers' attitudes about the kinds of development that were per-
missible, believed the overall impact was "amazingly effective."156
A leading spokesman of the prodevelopment viewpoint made an im-
portant "off-the-record" observation in June 1976. He conceded, as he
believed most reasonable people would, that the coastal commission
had been successful in improving the quality of development along the
coastline-that it had stopped most "schlockey" construction and
prevented construction of many environmentally destructive develop-
ments. His personal assessment was that at least this aspect of coastal
regulation was desirable.
Although it is difficult to evaluate the overall environmental effec-
tiveness of the interim regulatory program, I gained a strong impression
that it was successful in slowing down potentially destructive develop-
ment while the plan was being formulated and in improving the type of
development eventually approved.
3. Economic Effects
The economic impact of Proposition 20 would be almost impossible
to assess. Not only was the act implemented during a nationwide eco-
nomic reversal, but also many other local, state, and federal programs
were simultaneously affecting development activity. One obvious effect
on land values is worth mentioning: Lands where development permis-
sion was obtainable tended to increase in value relative to lands where
development permission was unobtainable or uncertain, since price
reflected profit potential.'5


153. Bodovitz interview, supra note 46.
154. Crandall interview, supra note 68.
155. Fischer interview, supra note 17.
156. Crandall interview, supra note 68.
157. The point was made in several interviews, e.g., Frazier interview, supra note 133.


i











No. 4 COASTAL LAND MANAGEMENT 689


An official with the North Central Coast Regional Commission
believed "sales patterns on lots outside existing settlements which were
briskly traded for fairly good sums of money before Proposition 20
[were] no longer traded; some people talked] of being wiped out."
Such fortuitous changes in value or "windfalls for wipeouts," to use
Donald Hagman's phrase, suggest a need for equitable mechanisms to
accompany major regulatory programs.'58
Other economic implications are even more elusive.'59 Those
employed in the logging industry of the north coast Eureka area
believed that the environmental movement generally was hurting their
industry and the local economy.'60 But others in the area believed that,
except for potential delays under the California Environmental Quality
Act's environmental impact report (EIR) requirement,"'6 the economic
reversals were not caused by environmental regulation.'62
4. Social Effects
Major social needs that a coastal management program must accom-
modate include assuring adequate and accessible recreational facilities
and maintaining adequate housing and recreational accommodations for
all citizens. According to one study, the issue of beach access, although
important in the campaign to secure passage of Proposition 20, did not
prove to be a major problem during the early interim phase: Developers
hesitated to propose projects that would restrict beach access and, if
they did propose such projects, the commissions imposed conditions to
assure ample access corridors.'63


158. See, e.g., Donald G. Hagman, Windfalls for Wipeouts, in American Assembly, Columbia
University, The Good Earth of America: Planning Our Land Use 109 (C. Lowell Harriss, ed.
Englewood Cliffs, N.J.: Prentice-Hall, 1974).
159. The shift, even possible increase, of activity in areas outside the 1,000-yard permit zone
was observed, for example, by an environmentally oriented state commissioner (Harris interview,
supra note 152) and a developers' attorney (Ellman interview, supra note 66).
160. Following a court decision requiring an environmental impact report (EIR) for major
timber-cutting projects, there was a major north coast reaction, including a demonstration by
1,300 loggers at the state capitol in Sacramento (S.F. Examiner & Chronicle, Feb. 9, 1975, at 5)
and a Eureka rally of 2,500 citizens representing loggers, industry, agriculture and business
unions, and others, testifying to the effects of the Forest Practices Act and the California
Environmental Quality Act on the north coast economy. (Humboldt Beacon, Feb. 13, 1975, at 1,
col. 5, under headline, "State Labor Chief Shouts 'We Will Now March on Sierra Club.' ")
161. See note 257 infra. Governor Brown immediately attempted to simplify the reporting
requirement and speed up the processing of timber-cutting plans. L.A. Times, Feb. 20, 1975, at
26, col. 5.
162. Interviews with Raymond Peart, former county supervisor, and Dwight May, former
member of the North Coast Regional Commission, in Eureka, Feb. 17, 1975.
163. Healy, supra note 19, at 372 et seq.


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


The social implications of coastal zone management gained statewide
front-page press coverage in June of 1976.164 The bill that was intended
to implement the coastal commission recommendations was defeated in
the senate finance committee because of the negative vote of Senator
David Roberti, a Democrat from Los Angeles whose constituency was
composed principally of low- and moderate-income groups.'65 Roberti,
who was also state senate majority leader, claimed to have "strongly
supported" passage of Proposition 20 and was believed to be a sup-
porter of a permanent coastal bill.166 He explained, however, that he
was compelled to vote against the bill for the following reasons:
(a) The bill failed, Roberti claimed, to consider adequately the ef-
fects on inland people-especially those in urban areas. He believed the
bill would cause an increase in urban densities. Although he felt the bill
was a good conservation bill, he called for improvements that would
provide "a fair deal for the person of average means who doesn't live
by the coast."
(b) Senator Roberti believed that the bill did not assure adequate
public access to the beaches. Although acknowledging that the bill and
the coastal plan devoted attention to public access, he claimed "the
nickel's worth of access was not a good bargain."
(c) Coastal commission policies in Malibu drew his particular
criticism. Malibu, located in Los Angeles County, is a beautiful coastal
area backed by the rugged Santa Monica Mountains. Roberti was shrill
in his criticism of approval of so many single-family residences, which
he believed simply accommodated the "squatter rich in Malibu-the ug-
ly symbol of what Proposition 20 was to stop." He "would stop all
new development of residences on the coast, and build only low-cost
recreational facilities."
(d) Finally, Senator Roberti criticized the coastal plan as not pro-
viding adequately for low-cost housing. He suggested, however, that he
would "probably" support compromises that placed major emphasis on
provisions for adequate recreational accommodations for low-income
groups.
Senator Roberti's motives were widely questioned. Many critics sug-
gested that his negative vote was explainable by labor pressure, an ex-


164. L.A. Times, June 12, 1976, at 1, col. 5.
165. Id.
166. Senator Roberti's views are those reported in id. and as recorded by me at the legislative
hearing in Sacramento, June 23, 1976.


1978:647










No. 4 COASTAL LAND MANAGEMENT 691


planation he denied. I include Senator Roberti's criticisms here, without
evaluation, to illustrate the perceived social effects of California's
coastal regulations.
Adequate parking space is also relevant to adequate public access to
beaches, and herein lies an emerging exclusionary problem. Com-
munities may be willing to provide adequate recreational facilities for
their own residents but seek means to deny access to nonresidents,
believing that free public access will result in environmental and
aesthetic destruction. Restriction of parking space is one such means
for denying reasonable access.
Closely related to efforts to exclude nonresidents from recreational
facilities is the broader issue of exclusionary zoning and its potential for
denying to low- and moderate-income groups adequate housing access-
ible to employment and recreation facilities. The attorney for the San
Mateo County Harbor District, which was initially frustrated in its ef-
forts to obtain permission to build a 1,100-boat marina at Half Moon
Bay, had earlier deplored this potential exclusionary effect of the
coastal and other environmental protection programs.'67 He predicted
that the result would be "exclusionary zoning to the point where any-
body who works for a living will not be able to afford to live in coastal
areas; prices will be driven up to the point where only the wealthy can
afford coastal housing."
The coastal commission was clearly aware of the social effects of
coastal regulation and had regularly made known its policies favoring
maintenance of existing low- and moderate-income housing and new
construction that would accommodate many coastal visitors over per-
manent residences accommodating only a few.'"6 Executive Director
Bodovitz explained the inherent difficulties of maintaining low-cost
housing in the coastal zone. He believed there were two basic ap-
proaches: (1) to try to maintain existing housing; and (2) to try to ob-
tain adequate federal and state subsidies for construction of additional
housing. Bodovitz also answered some of Senator Roberti's charges.
For example, he said that the coastal commissions "had denied many
single-family residences in Malibu"; and that "the best way to increase
access in Malibu is to buy lots" for public ways of access.'69



167. Interview with James M. Dennis, Esq. in Redwood City, Cal., May 27, 1975.
168. See, e.g., 1975 Coastal Plan, supra note 1, at 152-55.
169. Legislative hearing, supra note 166.










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


By middle 1976, the California coastal commission and the state
legislature fully appreciated the complex interrelationships of social,
economic, and environmental values in the coastal zone. But stating
goals and policies is easier than resolving specific conflicts. In order to
explore specific conflicts in more detail, I next look at the interim
regulatory phase from the perspective of a major land developer.
C. A View of the Interim Phase from the Perspective of a
Major Land Development Company
A wholly owned subsidiary of Westinghouse Electric Corporation,
Half Moon Bay Properties, Inc., owns 8,500 acres of prime coastal
land in the Half Moon Bay area.7' Many environmental, economic,
and social values are in competition in this area, and a study of the
Half Moon Bay experience focuses issues of intergovernmental relation-
ships and relationships of government to the private sector. Also, since
the general reputation of the developer-its credibility, financial respon-
sibility, and business acumen-is not at issue, the conflicts center on
whether Half Moon Bay's unique agricultural and recreational resources
should remain untouched or whether the area should be developed for
residential and recreational purposes to meet the market demands
resulting from the area's accessibility to San Francisco. Many other
typical themes are present, for example, local versus regional general
welfare."'7
Half Moon Bay, backed by mountains and overlooking the Pacific, is
located about 30 miles south of San Francisco. Depending on traffic,
the drive from San Francisco can be made in 40 minutes or so. This
town of 5,500 people has a relaxed, rural appearance. Upon entering,
one might notice greenhouses, antique shops, a mobile home park,
fishing supply stores, and the usual kinds of service stores. A typical
shopping center is located at the edge of town. The area "supports a
strong floriculture industry, both field- and greenhouse-based."'72


170. All of the following facts about Westinghouse's Half Moon Bay project, unless otherwise
noted, were obtained from extensive interviews with H. J. Frazier, then executive vice-president,
Half Moon Bay Properties, Inc., in Half Moon Bay, Cal., Feb. 15, 1975, Aug. 27, 1975, and June
27, 1976. Mr. Frazier, now president of Half Moon Bay Properties, Inc., emphasized that his
views are those of the wholly owned subsidiary, not necessarily those of Westinghouse Electric
Corporation. Telephone conversation with H. J. Frazier, Chicago to Half Moon Bay, Nov. 6,
1978. Nevertheless, for convenience, Half Moon Bay Properties, Inc. will hereinafter often be
referred to as Westinghouse.
171. Cf., e.g., Southern Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151,
336 A.2d 713, appeal dismissed, 423 U.S. 808 (1975).
172. 1975 California Coastal Plan, supra note 1, at 228.


1978:647










COASTAL LAND MANAGEMENT


There are substantial recreational resources, including "State Beaches at
Montara and Half Moon Bay, a harbor at Pillar Point, and the tide-
pools of Moss Beach."'7 The coastal plan report identifies "[t]ranspor-
tation, sewer and water services, and the basic community infrastruc-
ture [as] the keys to development in Half Moon Bay."'74
Fred Mortensen, Half Moon Bay's city manager,'75 says "old timers"
in Half Moon Bay (those who, for the most part, "control politics in
the town") "don't see anything wrong with others" moving into the
area. The "general attitude toward Westinghouse," he says, is "not
hostile." But there is considerable resentment, Mortensen believes,
against the recent intrusions of outside governmental agencies.
Half Moon Bay was originally incorporated around 1959, Mortensen
explains, because the city felt that the "county did not have time for
the coastside." Understandably, then, the locals feel resentment when,
after years of handling their own affairs, they are suddenly "treated as
if they were imbeciles."
The 8,500 acres of land in the Half Moon Bay area owned by West-
inghouse lie along 14 miles of the coast, one-third in the city of Half
Moon Bay and two-thirds in San Mateo county. The 8,500 acres were
originally purchased in 1969 by a predecessor company, with Westing-
house providing all the interim financing. The interim financing equaled
the amount of the purchase price, so Westinghouse took over the man-
agement in July 1973. At that time Westinghouse had twice as much in-
vested in the land as the amount originally invested in 1969.
When the land was purchased in 1969, the applicable general plans
and regulations would have allowed development for some 100,000 peo-
ple, with Westinghouse's portion being approximately 65,000. In March
1978, Mortensen said the existing general plans would accommodate
25,000-30,000 within the city limits, with another 10,000 or so for the
rest of the coastside. Westinghouse's resident executive, H. J. Frazier,
believes the optimum development potentiality is to meet the needs of
the tourist industry-with a goal of the kind of uniqueness found in
Sausalito or Carmel-Monterey-not to develop the area as a bedroom
community. Such development, he emphasizes, would have a large
enough tax base to be financially self-sufficient.



173. Id.
174. Id.
175. Interview with W. Fred Mortensen, city manager of Half Moon Bay and general manager
of the sewer authority, mid-coastside, in Half Moon Bay, Cal., Mar. 20, 1978.


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


Before enactment of the California Coastal Act of 1976, Frazier
often spoke metaphorically of the California regulatory system as a
"game." He wryly observed that he knew who the "players" were but
implied, with frustration, that no one knew the "rules" of the game
anymore.
He identified local units of government having jurisdiction over the
8,500 acres as the city of Half Moon Bay, San Mateo County, three
sewer districts, two water districts, one school district, and two fire dis-
tricts. Relevant state and regional agencies included an agricultural soil
conservation district, the Central Coast Regional Commission, the state
coastal commission, the Association of Bay Area Governments, the
water control agencies, the state beaches and shores agency, and the
Local Agency Formation Commission. And as Frazier observed, "any-
time real property touches water" several federal agencies have jurisdic-
tion, including the Army Corps of Engineers, the Environmental Pro-
tection Agency, and other federal agencies.176
Much of the frustration about uncertain "rules" was attributed to
"abrupt changes" of government policy; not only would a single
agency be unwilling to abide by the decision of another governmental
agency, Frazier explained, but also even the same agency's policies were
constantly changing.
Frazier estimated that, by the summer of 1976, if Proposition 20 had
not been in effect, Westinghouse and purchasers from Westinghouse
would have completed: a hotel to accommodate 150 to 200 people,
employing 150 people and adding $12,000,000 to the city's assessable
tax base; an additional 18-hole golf course; three restaurants; about 15
shops in the harbor area, and, at maximum, 150 residential units. He
estimated that the residential units, at June 1976 prices, would have
been in the $80,000-$110,000 price range, although if built on schedule
they would have cost $65,000-$95,000. The clientele served by the non-
residential construction would have been "tourists, and people already
over here." He estimated the total fair market value of what Westing-
house would have developed, but for Proposition 20, at "maybe
$45,000,000," and the total real estate, sales, and hotel room taxes that
would have been paid annually on the completed development at
$1,200,000-$1,300,000. Frazier believes these developments would have


176. See The Federal Role, supra note 54, for a detailed discussion of many of the federal
programs.


1978:647









No. 4 COASTAL LAND MANAGEMENT 695


stabilized the local economy by adding a strong recreational base to an
economy based primarily on floriculture.
Frazier estimated $15,000,000 as the fair market value of the develop-
ment actually completed by Westinghouse or their purchasers from 1972
to the summer of 1976. Of that amount, 40 to 50 percent was for
development in Frenchman's Creek, a subdivision with homes ranging
from 1,900 to 2,500 square feet, on 7,000 square foot lots, which, in
February 1975, were selling for $58,000-$68,000.177 This planned com-
munity included "street-scaping," that is, planned landscaping on the
front yards, and "suitable deed restrictions to assure that [the lots
would] be properly maintained." Frazier estimated that one out of five
residents in Frenchman's Creek worked in San Francisco, three out of
five on the mid-peninsula (i.e., south of San Francisco, but over the
mountains from Half Moon Bay), and one out of five in the Half
Moon Bay coastside area, where they worked in floriculture, fishing,
and general commercial activities. At mid-1975, slightly over half of the
Frenchman Creek homes were in the Proposition 20 regulatory zone.
Most of the more expensive homes would have been built on the
oceanfront areas around the existing golf course. At 1975 prices, con-
dominium units in this area cost $35,000-$65,000, townhouses,
$65,000-$95,000, and single-family residences, $95,000 and up.'78 West-
inghouse projected a population increase in the golf course area of
2,500 people over a ten-year period. The townhouse area contained 90
acres, 80 of which were within the interim regulatory zone. Frazier said
that during the Proposition 20 period, the coastal commission policy
was to assert jurisdiction over all 90 acres.
Frazier estimated that Westinghouse annually paid $500,000 in taxes,
$350,000 of which went to the school district-a district that Frazier
estimated had a total budget of $4,000,000. He estimated that the city
of Half Moon Bay lost approximately $100,000 annually in real estate
taxes and another $400,000-$500,000 in sales and room taxes because
of Proposition 20. The city's biggest loss, he thought, came from the
loss of the 6 percent tax on hotel rooms.
Westinghouse was involved in several controversies during the interim
regulatory period. Its 270-acre recreational community was the subject
of attack in Sierra Club v. California Coastal Zone Conservation Com-


177. See fig. 2 infra for subsequent increases in prices.
178. See fig. 2 infra for subsequent increases in prices.










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


mission.1' The proposed development would have consisted of a "golf
course, lakes, open space, 567 townhouses, 61 single family lots, an
apartment complex, and a hotel complex."180 The First District Court
of Appeals upheld the lower court's decision, which, on a scope-of-
review issue, had upheld the state commission's decision upholding the
exemption granted by the Central Coast Regional Commission as to
"the construction of the golf course, main lodge, seven guest houses,
golf and tennis pro shops, a perimeter fence, streets, utilities, retaining
walls, steps from the development to the beach, tennis courts, a swim-
ming pool, a gate house, and a sewage treatment facility for which a
building permit had already been obtained. The exemption was
annulled as to the construction of any other residential units.""'1 "In
other words," Frazier explained, "the state said we could build all the
lots and put all the services into the lots, but we did not have vested
rights to build anything on the lots."
There was other litigation too. The Sierra Club sued on the issue of
vesting of the hotels, and the lower court held for the developer. The
Sierra Club appealed, and the developer won the appeal. The Sierra
Club then filed for rehearing with the California Supreme Court.
Westinghouse sued the state coastal commission, and the case re-
mained in the trial court awaiting the California Supreme Court's deci-
sion in A VCO Community Developers, Inc. v. South Coast Regional
Commission,182 which decision, in August 1976, was a major setback
for Westinghouse and other major developers. A VCO presented this
issue:
whether the developer of a subdivision may acquire a vested right to con-
struct buildings on its land without a permit from the California Coastal
Zone Commission...if it had subdivided and graded the property and
made certain improvements on the land, such as installing utilities, but
had not applied for or received a building permit for any structures on
the land before February 1, 1973.183
The court held that the developer had not acquired a vested right, not-
withstanding the developer's argument that subdividers, having "ob-
tained the approval of a subdivision map, which is asserted to be the


179. 58 Cal. App. 3d 149, 129 Cal. Rptr. 743 (1st Dist. Ct. App. 1976).
180. Id. at 153, 129 Cal. Rptr. at 746.
181. Id.
182. 17 Cal. 3d 785, 553 P.2d 546, 132 Cal. Rptr. 386 (1976), appeal dismissed, 97 S. Ct. 1089
(1977).
183. Id. at 788, 553 P.2d at 548, 132 Cal. Rptr. at 388.


1978:647










No. 4 COASTAL LAND MANAGEMENT 697


'final discretionary approval,' should be treated differently than
developers who build on a single tract of land.184
Frazier said there were also three suits against the city of Half Moon
Bay: (1) individual members of the Sierra Club challenged the city with
regard to Frazier's right to construct his home (judgment for the city);
(2) suit by a Half Moon Bay resident against the city over whether an
EIR was required because of a modification of original plans (judgment
for the city); (3) suit by another individual against the city for not hav-
ing a plan element to implement the open-space element in the general
plan (eventually settled upon city's compliance). As of June 1976, the
last two had been resolved in favor of Westinghouse. By June 1976,
Westinghouse's part of the legal fees for these controversies had
amounted to $170,000.
Asked why Westinghouse had not started construction of the hotel,
since it had won that lawsuit, Frazier explained that uncertainties would
still exist during that period (of at least three more years) allowed to
local governments for certification of local coastal programs.'8 And
there was no assurance that local governments would zone any area
recreational. The appeals process, he thought, could easily extend the
uncertainty through 1984. The ultimate profit would have to be very
great to justify spending half a million dollars for architecture, land
planning, and so forth, and then waiting for seven or eight years,
especially valuing the lost interest, computed at 10 percent on all capital
and other expenditures.
In 1976, Frazier was convinced that Proposition 20-and uncertainty
generally-had had dramatic economic effects. He said that a typical
lot on the golf course selling for $22,000 in 1975 was selling for $56,000
in June 1976. (By October 1978, Frazier reported that the same type of
lot was selling for $125,000.)86 He conceded that many factors had
contributed to the increase, but, mainly, he explained: "We've got the
only game in town. We're the only people who have water. There's a
moratorium on the other building. We're the only piece that's develop-
able near the ocean." "But," he added in 1976, "even then we're los-



184. Id. at 795, 553 P.2d at 552, 132 Cal. Rptr. at 392. This court rejected the developer's
argument that two earlier cases were distinguishable: Spindler Realty Corp. v. Monning, 243 Cal.
App. 2d 255, 53 Cal. Rptr. 7 (2d Dist. Ct. App. 1966); Anderson v. City Council, 229 Cal. App.
2d 79, 40 Cal. Rptr. 41 (1st Dist. Ct. App. 1964).
185. See notes 371-91 infra and text at same.
186. Frazier telephone conversation, supra note 170.













698 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647



ing money." By the spring of 1978, however, Frazier said Westinghouse
was "in the black" on their Half Moon Bay project.187
Figure 2, which is based on figures supplied by Frazier in November
1978, gives a visual clue to why Westinghouse's Half Moon Bay project
is now profitable. Particularly dramatic are the increases since 1976 in


$200,000 -
A


$180,000--



$160,000-



$140,000-



$120,000- -/ E


E




$60,000- C
D
$80,000



$60,000-- C


D
$40,000- -



$20,000 -


1974 1975 1976 1977 1978


Fig. 2. Median home and lot prices, Half Moon Bay coastside area, 1974-78. A, St. Andrews sec-
tion of golf course; B, Golf Course townhomes; C, Frenchman's Creek; D, Montara-Moss Beach-El
Granada area (unincorporated villages just north of Half Moon Bay; 1978 population 6,500); E, Golf
Course lots.



187. Interview with H. J. Frazier, president, Half Moon Bay Properties, Inc., in San Francisco,
Mar. 15, 1978.









COASTAL LAND MANAGEMENT


prices of golf course lots and homes in the St. Andrews section of the
golf course-the areas with the best ocean accessibility and views.
Frazier argues that the price increases are "attributable to one
thing-diminished supply." He adds:
The demand, although it has risen and fallen from one year to another,
has been rather constant over the past five years with the supply sharply
dropping off. The reduced supply is substantially attributable to highly
restrictive land use [regulation] at all levels of government. We forecast
this has to mean continued increased pricing, because supply is further
diminishing, at least in the Bay area.
Westinghouse's posture under a permanent coastal regulatory pro-
gram, Frazier explained, "will continue to be what it has been: ...to
make no long-range capital commitments, unless we can foresee that
we're going to obtain a return of the capital within a short period." As
an example, in 1975 he cited their development activity outside the
jurisdiction of Proposition 20. "We put in $500,000 for streets, water,
sewers, underground utilities, and I will do it if I think I can sell the
lots in six months without getting shut down. But it doesn't make sense
to make capital investments for a much longer period of time." Quality
development, however, "requires a substantial commitment of
capital...and a substantial amount of time." Westinghouse, Frazier
said, "always takes a 40- to 50-year view."
Frazier summarized the history of housing in California as being one
of a mass influx of population, followed by a response of building
"boxes," resulting in many poorly constructed single-family dwellings.
In 1975, he thought housing had again become a low policy priority,
but that in four or five years housing demand might again be great and
that there was a danger that quick responses would again result in "bad
decisions" like those of post-World War II. He believed developers
should concentrate on units of 100- to 150-year lives with long-term
financing. But since Proposition 20 was enacted, Frazier explained in
1976, "no one [i.e., major developers] has started new from scratch."
Continued uncertainty in land regulation, Frazier predicted, would
not destroy the private developer but would affect the pricing structure
because "price is the only tool the businessman has to work with." In
1976, he was predicting that rates for the hotel could reach $200 per
night because the demand would be there and no one else was likely to
get development permission. He thought the cost to the public should
be confronted squarely. "But everybody shied away from that. They
tried to discharge it by rationalizing that the purchaser of land bought a


No. 4










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


speculative investment and has simply lost on a speculative in-
vestment." He foresaw that "the only investment you are going to have
in land is of a speculative nature." This kind of uncertainty, Frazier
warned in 1976, would result "in prices like those in Japan, Canada,
France, England, and Sweden." California coastal housing prices are
unquestionably reaching fantastic levels as figure 2 illustrates;'88 but, of
course, so are housing prices in many other parts of the country. And
the nationwide increases in housing prices are caused by more than
dwindling supplies-runaway inflation obviously being a major con-
tributor. Still, it seems clear that since Westinghouse holds coastal lands
for which they are now able to get development permission, they are
now able to enjoy what undoubtedly must be excellent financial
returns. In November 1978, Frazier recalled, for example, that in early
1975, he "needed to sell 12 to 14 lots a month in order to break
even-to cover the overhead costs"-but that by late 1978, he "only
needs to sell one lot to break even."'89
At a pessimistic moment in mid-1975, Frazier suggested that the
probable financial consequences to Westinghouse of its Half Moon Bay
investment, considering land costs and other carrying charges, were that
Westinghouse might lose as much as $15,000,000; they "were border-
ing on losing 50-75 percent of their total investment." However, I drew
strong inferences from all my interviews with Frazier, suggesting that
Westinghouse could afford to wait for several years for a "reasonable
profit" on its Half Moon Bay investment, and that it would most likely
wait. It was no surprise, then, to talk with Frazier in the spring of
1978'90 and find that the Westinghouse Half Moon Bay project had
finally become profitable. Indeed, by October 1978, Frazier reported
that on 109 coastal development applications since the onset of Pro-
position 20, his company had received 109 approvals. '' Few smaller
companies, of course, could have afforded to carry such an investment
for so long a time or to have endured the initial development frustra-
tions.
During the Proposition 20 period, abortive efforts were made to
achieve a compromise. Frazier explained that, at one point, Westing-
house was willing to convey fee simple title to 7,000 of its 8,500 acres


188. See fig. 2 supra.
189. Frazier telephone conversation, supra note 170.
190. Frazier interview, supra note 187.
191. Frazier telephone conversation, supra note 170.


1978:647









No. 4 COASTAL LAND MANAGEMENT 701


to be held as permanent open space for public use in exchange for rea-
sonable development permission on the remaining 1,500 acres. The con-
veyed land would have included open spaces and recreational
areas-including many oceanfront areas. The proposal was apparently a
sincere effort to reach a compromise on private and public use of the
prime coastal land. There were "six or seven meetings, including people
such as Claire Dedrick," a Sierra Club representative (subsequently ap-
pointed by Governor Brown as secretary of the resources agency). But
notwithstanding considerable optimism that they would reach a reason-
able compromise to propose to the coastal commission, "the effort
finally collapsed because of fragmentation among all the people."
Frazier believed some of the environmentalists were unwilling to accept
any compromise, believing that all development could permanently be
stopped.
In 1975, Frazier cited another example where an unofficial compro-
mise was reached but where official approval was initially denied. The
San Mateo County Harbor District wanted to expand the Pillar Point
Harbor to hold 1,100 boats. The environmental representatives were
opposed. Frazier was asked by some of the environmental leaders to
mediate. He did, and a compromise was reached that would have per-
mitted 450 boat slips-one-half for commercial purposes, one-half for
recreation. There would also have been some scaled-down commercial
development to make the harbor project economically feasible. The ad-
ditional project would have cost $6,000,000 in addition to "maybe,
twenty million dollars of improvements already in the harbor." Frazier
said "everybody was very enthusiastic-including long-standing local
environmentalists who had worked out the compromise." However, a
"small handful of ecologists wouldn't agree." The proposal was ini-
tially turned down by the regional commission on a vote of nine (favor-
able) to three. Ten votes were needed, however, because of a two-thirds
voting requirement and because the governor had not filled three vacan-
cies on the commission. Ultimately, though, permission was given for
development of the "scaled down" version, and, by the fall of 1978,
construction was under way.
Frazier's view of how to improve the system to promote reasonable
compromises was never entirely clear to me. On the one hand, he clear-
ly deplored what he viewed as a "program designed to cause confronta-
tion" and one that did not provide "clear, definitive, and binding"
rules. He was acutely aware of the political aspects of the decision-
making process and, like all major developers interviewed for this










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


study, was very sensitive to his company's relationship to the official
decision makers as well as to those, such as the environmental leaders,
who could influence the official decision makers. Yet, on the other
hand, Frazier was not receptive to suggestions of new techniques that
might encourage consensus. He was especially critical of the United
States Supreme Court's 1976 decision in City of Eastlake v. Forest City
Enterprises, Inc.,'92 which upheld the right of a community to overrule
by referendum their elected representative's decisions. The result, he
predicted, would be even more uncertainty, "and as long as you have
uncertainty...you're not going to have any planned development."
Frazier emphasized the value of a system that he described as follows:
We have a republic, not a democracy. We elect public officers to make
decisions, and if we don't like the decisions they make, they should be
kicked out of office. We don't work on a system in this country on
agreement... we ought not to get away from the fact that [our public of-
ficers] do have the ultimate decision. Once they make a decision though,
we ought to follow it. But we are heading in the opposite direction, and
we're going to have chaos.
II. CALIFORNIA'S GENERAL PLANNING FRAMEWORK
The California Coastal Act of 1976193 continues the two functions of
coastal plan preparation and interim regulation started in 1972 by Pro-
position 20. But local governments are given a stronger role under the
1976 act. They must immediately undertake major planning respon-
sibilities; ultimately, they will assume major regulatory roles.
California is a national leader in developing land planning ar-
rangements that involve local, regional, and state levels of government.
In this part, I analyze this general planning framework into which the
1976 coastal act must fit.
A. State Planning
California's comprehensive planning duties are assigned to the Office
of Planning and Research (OPR),194 an agency within the governor's of-
fice. OPR, assisted by the Planning Advisory Assistance Council, is em-
powered to "engage in formulation, evaluation and updating of long-
range goals and policies for land use, population growth and distribu-
tion, urban expansion, development, open space, resource preservation


192. 426 U.S. 668 (1976).
193. Supra note 2.
194. Cal. Gov't Code 65037-65040.7 (West Supp. 1966-77).


/


1978:647










COASTAL LAND MANAGEMENT


and utilization, air and water quality, and other factors which shape
statewide development patterns and significantly influence the quality of
the state's environment."'9
OPR reports to the legislature through the governor, and its effective-
ness as a statewide land use-planning agency depends primarily on the
governor's attitudes toward the proper state role in land use planning.
Former Governor Reagan interpreted OPR'S powers narrowly,'96 while
Governor Brown seems to be encouraging a more active role for OPR.
In November 1974, OPR implemented a "planning coordination pro-
cess," requiring that all plans made by other state departments be sub-
mitted to OPR "for review and comment." In addition to this "horizon-
tal" coordination, OPR is seeking to establish "vertical" coordination
through agreements with the Regional Councils of Government to pro-
vide suggestions for incorporation into the state plan.'97
In the summer of 1976, a high-ranking OPR official explained the of-
fice's emerging role, confirming that Governor Brown was "skeptical of
comprehensive planning"; OPR officials speak instead of "making the
act of political management realistic.""1 The governor talked not of
jargon-filled sets of goals and objectives, but of taking a discrete set of
state problems and attempting to develop specific policies to deal with
them. He talked about an "era of limits" to our natural resources. The
governor seemed not to be philosophically opposed to planning but was
said to be "very much an incrementalist." As a result, the OPR official
stated that the OPR intended to develop a coordinated planning process,
dealing with one major issue at a time, without philosophically aban-
doning a comprehensive, coordinated approach.
OPR's immediate goal, as of June 1976, was to prepare an urban
development policy report to augment the existing environmental goals
and policy report. Subsequent reports would include a statement of
policies for rural areas and of policies to coordinate other plans, such
as the coastal and transportation plans. An OPR official believes that the
"coming several years could result in an incremental approach to prob-
lem solving on a coordinated basis, but that it might never be called the
comprehensive plan for California."

195. Id. 65040(a).
196. He restricted its principal function to preparation of an environmental goals and policy
report. Id. 65041. The first was due in Mar. 1976. Interview with Edmond C. Baume, Office of
Planning and Research, in Sacramento, Feb. 13, 1975.
197. Baume interview, supra note 196.
198. Interview with an official, Office of Planning and Research in Sacramento, June 23, 1976.


No. 4










704 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


The official said that each of OPR'S reports would follow a "thought
flow" of "problems, proposed policies, description of real life-real-
ity-obstacles to be overcome, and then, finally, propose specific ac-
tions to be undertaken." For example, problems to be discussed in the
urban development policies report would include:
reviewing, first, deteriorating existing communities-not necessarily the
inner city solely, but that's where most of the problems are. Second,
wasteful new development-sprawl .... Third, air and water pollution,
the cumulative effect on air and water pollution-the effect it has. And
fourth, a topic called, variously, individual cities' decisions that harm
other communities-interjurisdictional conflicts ....
When pushed to elaborate on how OPR's new reports might affect
coastal planning and regulation, the OPR official conceded that in-
ferences could be drawn from his above statement of problems:
The hierarchy implies that we're talking about encouraging development
of existing communities, and the terminology "wasteful new develop-
ment" implies that we're oriented against sprawl, and against pollution,
and against individual cities like [name of coastal city omitted] [expletive
deleted] the region's ocean coastline .... We will be setting down some
policies, and then some specific legislative or administrative actions that
could be taken, but we're not going to be saying that [the specific city]
should follow these policies.
The OPR official felt optimistic that the OPR reports, although not
having legal force, would nevertheless have an impact on state func-
tional agencies. He cited a "meeting of our interagency task force," in
which other agencies were critically reviewing preliminary drafts of
some of OPR's reports, as if the reports might have a real impact on
their activities.
In November 1976, the Los Angeles Times ran a major story on OPR
and its dynamic director, Bill Press. The story reported that the Urban
Policies Report would state three goals, which, in order of priority,
would be:
-Rebuild and revitalize deteriorated city areas.
-Use up vacant metropolitan land.
-Begin new construction contiguous to existing urban areas rather than
leapfrogging away from them.'9


199. L.A. Times, Nov. 21, 1976, 7, at 1, 4, col. 5.










COASTAL LAND MANAGEMENT


Six of the report's numerous policies that state, regional and local
governments would be called upon to implement were reported to be:
-Industrial siting policy set by the state, and sites picked by regional
governmental agencies in consultation with the state. Generally, industry
would be required to use urban facilities.
-Authorizing local redevelopment agencies to construct or finance
new buildings for private use, largely with state money, so that poor peo-
ple would be assured decent homes.
-Special taxes on speculative land sales, taxes levied to discourage
rural land speculation.
-Requiring rich cities to share their property and sales tax revenues
with poor cities.
-Tax exemptions for home improvement costs. The exemptions would
replace tax increases that currently discourage such improvements.
-State subsidy of housing construction, rehabilitation, rental and pur-
chase for poor people, thereby enabling them to improve urban areas.200
OPR has several other projects under way. It is helping enforce
California's local planning law20' and has achieved some notable suc-
cesses. The 1976 coastal act gives OPR specific coordinating duties:
The Director of the Office of Planning and Research shall, in coopera-
tion with the commission and other appropriate state agencies, review the
policies of this division. If the director determines that effective im-
plementation of any policy requires the cooperative and coordinated ef-
forts of several state agencies, he shall...recommend to the appropriate
agencies actions that should be taken to minimize potential duplication
and conflicts and which could, if taken, better achieve effective im-
plementation of such policy. The director shall, where appropriate and
after consultation with the affected agency, recommend to the Governor
and the Legislature how the programs, duties, responsibilities, and ena-
bling legislation of any state agency should be changed to better achieve
the goals and policies of this division.202
1. Evaluation of Comprehensive State Planning in California
Although OPR is making commendable efforts to provide an adequate
state comprehensive planning process for California, its statutory
authority is inadequate. The California Land-Use Task Force Report,
which was written earlier under the direction of now-OPR director Bill


200. Id.
201. See notes 246-56 infra and text at same.
202. 1976 CCA, supra note 2, 30415 (1977). See also City of Chico v. County of Butte,
Stipulation and Waiver of Notice, No. 14553 (Super. Ct., County of Colusa, Cal. Oct. 1976) and
attached Application for Extension of Time, Before the Director of Planning and Research.


No. 4











AMERICAN BAR FOUNDATION RESEARCH JOURNAL


Press, concluded that the state did not have "an explicit and effective
state planning process and policy...[and that the vacuum had been
filled] with the 'backdoor' land-use planning of single purpose agen-
cies."203 Accordingly, the task force recommended:
(1) Comprehensive land-use planning should be a top priority of the new
Administration and of the Legislature.
(2) In 1975 the Legislature should set in motion a comprehensive state-
wide land-use planning process. This is the most important issue in
California today. Two important specialized plans-the Coastal Zone
Conservation Plan and the California Transportation Plan-will be
presented to the Legislature in early 1976; this timing reinforces the
need for a statewide comprehensive planning effort.204
Although many state agencies do planning that has significant land
use-planning aspects, there has been too little coordination among the
"functional fiefdoms."205 Only recently did Cal Trans, the state trans-
portation planning agency, admit that its transportation plan was a de
facto land use plan. Transportation planning, one former OPR official
believed, should be "capacity planning" rather than "demand plan-
ning," an approach based on the coastal area's capacity to absorb more
residents instead of one based on demand for roads regardless of en-
vironmental impact.206
The need for close coordination is clear. For example, a consultant to
the Assembly Committee on Energy and Diminishing Materials was
critical, in 1975, of the South Coast Regional Commission's attempts
"to require solar-assisted heating as a part of the requirements for per-
mits for individual homes." He believed the coastal commission should


203. California Land-Use Task Force, Planning and Conservation Foundation, Report:
California Land Planning for People 30 (Los Altos, Cal.: William Kaufmann, Inc., 1975)
[hereinafter cited as California Land Use Report].
204. Id. at 84. Several other California observers, whose views on other subjects often were in
conflict, also pointed to this need for a better state comprehensive planning process. E.g.,
interview with John Abbott, executive director, California Tomorrow, in San Francisco, Feb. 11,
1975; Interview with E. Clement Shute, Jr., assistant attorney general, state of California, in San
Francisco, Feb. 10, 1975; Sedway interview, supra note 137; Ellman interview, supra note 66;
interview with Roger Hedgecock, Esq. (counsel for the Sierra Club), in San Diego, Feb. 20, 1975
("priority of the Sierra Club legislative program").
205. Baume interview, supra note 196.
206. Interview with Edmond C. Baume, chief, State Planning Division, Office of Planning and
Research, in Sacramento, Aug. 26, 1975. Thomas H. Willoughby, consultant, Assembly
Committee on Local Government, emphasized this relationship of transportation policy to coastal
policy. A decision to open up access to a certain part of the coastline, he believed, should be
consistent with the coastal plan. Such potential conflicts point up the need for an "integrated,
statewide program." Interview, in Sacramento, Feb. 14, 1975.


1978:647










No. 4 COASTAL LAND MANAGEMENT 707


concentrate on coastal environmental protection questions and leave the
complex problems of energy to the energy commission.207 The 1976
legislature devoted much debate to the relationships between these two
commissions, reaching a compromise in the 1976 act.208 Melvin Lane,
then-chairman of the state coastal commission, agreed that the two
commissions must coordinate their functions. It was also clear,
however, that Lane considered the coastal commission's mandate under
Proposition 20 to be broad enough to consider energy needs, and that
he foresaw that there would be pressure on the coastal commission to
assert concurrent jurisdiction if other agencies did not regulate energy
use adequately.209
The lack of coordination of transportation, energy, and coastal
policies at the state level also exacerbated the lack of coordination that
often existed between the local and federal governments. San Diego
needs maximum coordination because of the federal military presence,
but even the office of San Diego's Mayor Pete Wilson, whose city ad-
ministration has a good working relationship with the federal govern-
ment, could cite instances of apparent federal disregard of local and
state planning objectives, perhaps attributable in part to lack of clearly
defined state and regional planning objectives.2'1
Now that the California legislature has enacted a strong coastal pro-
gram, statewide planning may begin to receive legislative attention,211


207. Interview with Eugene Varanini, consultant, Assembly Committee on Energy and
Diminishing Materials, in Sacramento, Feb. 14, 1975.
208. See 1976 CCA, supra note 2, 30413 (1977).
209. Lane interview, supra note 124; the 1975 Coastal Plan, supra note 1, at 115, recommended
such coordination.
210. Inferences drawn from interviews with Michael Madigan, assistant to Mayor Pete Wilson
for program and policy development, mayor's office, in San Diego, Feb. 20, 1975; Crandall
interview, supra note 68. The League of California Cities also strongly supported a statewide
planning system, explaining the relationship to coastal planning:
[C]ity officials believe that the coast can only be effectively governed and managed if
decisions affecting transportation, housing and pollution regulation are integrated into a
statewide planning process [and] if the structure which implements the policies is able
to respond to federal and statewide policies and programs.
League of California Cities Coastal Plan Review Committee's summary of the league's position on
the government powers and funding element of the preliminary coastal plan [Sacramento, Sept.
1975].
211. "As little as four or five years ago, state land-use planning was considered some kind of
21st century idea But things like the energy crisis have all of a sudden impressed upon a lot of
people that we do have to start planning how we use our resources." Willoughby interview, supra
note 206. However, according to the deputy executive director of the California Coastal Com-
mission, in the post-Proposition 13 climate in California, "state comprehensive land use planning
is not a popular subject." Telephone conversation with Peter Douglas, Champaign, Ill., to
Sacramento, Nov. 14, 1978.










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


although state comprehensive planning legislation is not likely very
soon.212
In summary, much state level planning takes place in California, but
until recently it has been poorly coordinated and has probably had ran-
dom and often unintended effects. OPR is making commendable efforts
to improve horizontal planning coordination, but its effectiveness
depends on gubernatorial support.
Vertical coordination of coastal planning, such as between local and
state governments, has improved as a result of the Proposition 20 ex-
perience. The permanent coastal program should promote even better
coordination. But the horizontal coordination, such as among the
coastal, transportation, energy, and environmental planning agencies,
has been inadequate and may remain so despite OPR's efforts.
California's legislature should mandate a more effective state plan-
ning process. State comprehensive plans should be prepared and of-
ficially adopted, thereby providing a framework within which func-
tional planning can occur. The American Law Institute's Model Land
Development Code, article 8,213 provides one rational approach.
Calls for revamping California's state planning process are heard
from persons ranging from land developers to environmentalists, local
planners to state officials.214 Failure to achieve better coordination
could seriously hamper California's continuing coastal planning pro-
cess. Another effect may be even more serious. The nexus between
planning and regulation is getting stronger in California.215 The familiar
"beautiful plan gathering dust on the shelf" is being replaced by plans


212. "I see [the legislature passing] more individual kinds of programs-coastal programs,
prime agricultural lands programs. Finally the whole thing will get into such a mess that they will
finally realize there has to be some way of resolving the conflicts." Interview with David F.
Beatty, Esq., League of California Cities, in Sacramento, June 23, 1976.
213. ALI Code, art. 8, at 291-361.
214. See note 204 supra. But cf. Douglas telephone conversation, supra note 211. The 1975
United Nations report on coastal area management and development drew attention to "over 100
state and federal agencies" with jurisdiction over the coastal area of California. The report was
concerned about the effects of overlapping of intragovernmental responsibilities in coastal
planning:
Classically, government departments are organized on a functional basis. Thus, transport,
power, trade and industry, internal affairs, external affairs, agriculture, and tourism are
typical government departments. Those departments are each vertically integrated, but the
horizontal linkages between those agencies, which are necessary for comprehensive
management of all the sectors along the coast, are often absent. Furthermore, a govern-
mental structure defined along those lines faces a jurisdictional ambiguity at the shoreline.
Coastal Area Management and Development, Report of the Secretary-General, United Nations
Economic and Social Council, 59th Sess., May 8, 1975, at 12.
215. See note 371 infra and text at same.


C-C


1978:647










COASTAL LAND MANAGEMENT


containing policies and standards that have legal effect-that are "au-
thoritative general directive arrangements."216 It is important, therefore,
to understand how these general directive arrangements are formulated
and how they function. Uncoordinated planning produces inconsistent
and conflicting directions, with consequent uncertainties at every level
of government, in private industry, and among citizens.
B. Regional Planning
Most California regional planning is done by Regional Councils of
Governments (coo's), formed under the Joint Exercise of Powers
Act,217 and by single-purpose agencies such as the San Francisco Bay
Conservation and Development Commission218 and the Tahoe Regional
Planning Agency.219 The six regional coastal commissions provided the
chief regional coastal planning during the interim regulatory phase, but
under the 1976 coastal act they are scheduled to terminate once all local
governments within a particular region obtain certification of their local
coastal programs, or July 1, 1981, whichever first occurs.220 Of course,
the June 1978 approval of Proposition 13221 may well affect this earlier
state legislative objective.
California has three enabling statutes for regional planning organiza-
tions,222 but two of them have never been used and the third has
seldom been used.22 The two major COG's are the Southern California
Association of Governments scagG), affecting more than ten million
people, and the Association of Bay Area Governments (ABAG), which in
1961 became the first California coo;224 "80 percent of all
municipalities in the area are members [of SCAG and] 85 of 92 cities and
seven of nine counties in the region are members [of ABAG]."225
COG'S were formed in response to federal government prodding to
relate federal developmental activities and grants-in-aid programs to
comprehensive state, metropolitan, or regional planning. The Demon-


216. See notes 289-90 infra and text at same.
217. Cal. Gov't Code 6500-6515 (West 1966 & Cum. Supp. 1978).
218. Id. 66600-66661 (West 1966 & Supp. 1966-77).
219. Tahoe Regional Planning Compact, Pub. L. No. 91-148, 83 Stat. 360, approved Dec. 18,
1969.
220. 1976 CCA, supra note 2, 30305 (1977).
221. West's Cal. Legis. Serv. 1978, no. 4, at xxv-xxvi.
222. Regional Planning Districts, Cal. Gov't Code 65060-65069 (West 1966 & Supp.
1966-77); Area Planning, Cal. Gov't Code 65600-65604 (West 1966 & Supp. 1966-77); District
Planning Law, Cal. Gov't Code 66100-66390 (West 1966 & Supp. 1966-77).
223. California Land Use Report, supra note 203, at 22.
224. Id. at 23.
225. Id.


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


station Cities and Metropolitan Development Act of 1966226 and the
Intergovernmental Cooperation Act of 1968227 called for areawide
review and evaluation, implemented in circular A-95 of the federal Of-
fice of Management and Budget by requiring applicants for certain
federal assistance to notify designated "clearinghouses" so that an
"A-95 review" could be made.228 The review is only advisory, however,
and studies have reached unfavorable conclusions about its effective-
ness.229 COG'S have been criticized for their inability to "compel or
coerce constituent general purpose jurisdictions to carry out or abide by
[their advice],"230 and because "local officials view the regional plan-
ning agency as strictly a mechanism for gaining federal funding,"231
thus giving minimal attention to regional planning. In short, the COG's
have not been viewed as "an independent source of regional in-
fluence,"232 and the advisory review process may even have "precluded
a broad initiating role in comprehensive planning."233
A requiem for COG'S is premature, however; some present trends sug-
gest they might become major planning agencies for resource manage-
ment. First, there is a judicial trend in California and elsewhere to en-
courage the making of local land use decisions within a regional con-
text.234 Regional governments are not likely to be formed for this pur-
pose,23 but COG'S as existing planning agencies, could provide this


226. 42 U.S.C. 3301-3374 (1970 & Supp. V 1975).
227. 42 U.S.C. 4201-4244 (1970 & Supp. V 1975).
228. Circular A-95, U.S. Office of Management and Budget. See ALI Code, supra note 70,
8-102, at 309-15.
229. See, e.g., Melvin B. Mogulof, Regional Planning, Clearance, and Evaluation: A Look at
the A-95 Process, 37 J. Am. Inst. Planners 419 (1971). See generally ALI Code, supra note 70, at
309-15.
230. ALI Code, supra note 70, at 312 (quoting Advisory Commission on Intergovernmental
Relations, Regional Decision Making: New Strategies for Substate Districts 109 (1973)).
231. Id. at 311.
232. Mogulof, supra note 229, at 412.
233. ALI Code, supra note 70, at 312 (citing National Academy of Sciences and National
Academy of Engineering, Revenue Sharing and the Planning Process 26 (1974)).
234. See, e.g., in addition to the programs analyzed in my study Coastal Land Management:
An Introduction, 1978 A.B.F. Research J. 153, Minn. Stat. Ann. 473.851-.872 (West 1977).
See generally, 2 Frank P. Grad, Treatise on Environmental Law 10.03 et seq. (New York:
Matthew Bender, 1977); Daniel R. Mandelker, Environmental and Land Controls Legislation
(Indianapolis: Bobbs-Merrill Co., 1976); Bosselman & Callies, supra note 9; Robert H. Freilich &
John W. Ragsdale, Jr., Timing and Sequential Controls-the Essential Basis for Effective
Regional Planning: An Analysis of the New Directions for Land Use Control in the
Minneapolis-St. Paul Metropolitan Region, 58 Minn. L. Rev. 1009 (1974).
235. The San Francisco Bay area is an exception. Assemblyman Knox has pushed for a regional
government there. One bill came close to passage in 1974; its 1975 counterpart was defeated by a
larger margin. However, "there is still a lot of support in the Bay Area for regional government,"


1978:647










No. 4 COASTAL LAND MANAGEMENT 711


regional perspective. Second, as the Florida development of regional
impact process shows, COG's can become relatively powerful agencies
when given a planning and advisory function that has a direct effect on
state regulatory decisions; the lack of such effect has been a major
source of weakness for COG'S elsewhere. The power to issue reports and
recommendations to guide local governments' major land use decisions,
coupled with the power to appeal land development orders of local
governments to a state commission, can give COG'S vitality and
muscle.236 Third, COG's are being assigned increasing planning duties in
the implementation of such programs as the Federal Water Pollution
Control Act (e.g., 208 planning) and the Clean Air Act (e.g., air
basin planning)."237
The San Francisco Bay Conservation and Development Commission
(BCDC)238 has successfully provided regional coastal zone management.
In 1965, when the BCDC was created, San Francisco Bay had been
reduced approximately one-third and was shrinking at a rate of 2,300
acres per year.239 It was possible to visualize the bay's becoming a river.
The commission worked for three years to prepare recommended
policies to guide future uses of the bay and shoreline. In 1969, the
California legislature adopted the plan, including, as its first major con-
clusion, that "[t]he Bay is a single body of water, and a Bay Plan can
be effectively carried out only on a regional basis.240
The BCDC experience is particularly important because of its influence
on the formulation of Proposition 20 and the implementation of the
California coastal management program.241 Similar to the BCDC plan,
the coastal plan was formulated under the leadership of Chairman
Melvin Lane and Executive Director Joseph Bodovitz, submitted to the
legislature, and, after considerable change, enacted as part of the 1976
coastal act.242

and it is possible that an act establishing regional government for the San Francisco Bay area will
eventually pass. Telephone interview, William Press, then-deputy director, Office of Planning and
Research, Sacramento, Nov. 3, 1975.
236. The succeeding article in this series will deal at length with this development in Florida, as
a consequence of Florida's development of regional impact process, Fla. Stat. Ann. 380.06, et
seq. (West 1974 & Cum. Supp. 1978).
237. Cf. generally The Federal Role, supra note 54, at 259-68 & nn. 488-557.
238. See Cal. Gov't Code 66600-66661 (West 1966 & Supp. 1966-77). See also Bosselman &
Callies, supra note 9, at 108-35.
239. S.F. Chronicle, Feb. 10, 1975, at 30, col. 1.
240. San Francisco Bay Conservation and Development Commission, San Francisco Bay Plan 1
(1969).
241. See California Land Use Report, supra note 203, at 25.
242. See note 285 infra and text at same.










712 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


The BCDC'S regulatory jurisdiction, however, extends only over an
area 100 feet back from the bay's main shoreline and over certain
wetlands, creeks, and diked areas adjoining the Bay.243 In contrast, the
permanent coastal regulatory program regulates the entire California
coast, including a much larger area landward of the ocean.244 There are
also significant differences in the types of development activities
regulated within the two zones.
Because of its size and diversity, California probably needs regional
planning more than any other state. Even if there were an effective
state planning process, local governments would need regional coor-
dination, assistance, and advice to help them comply with state policies.
Yet "virtually no effective action has been taken toward the develop-
ment of a regional planning process and the state has thus essentially
abdicated its role in establishing and regulating regional planning."245
There is much existing legislation that, if implemented, could provide
the framework for effective regional planning, but thus far efforts to
implement the programs have not been effective. Perhaps the coastal
planning experience, combined with the federal requirements for re-
gional planning, will encourage the California legislature to provide a
sounder legislative foundation for regional planning.
C. Local Planning
California's general planning law requires each California city and
county to prepare and adopt a comprehensive, long-term general plan
for the physical development of the area within its boundaries and any
land outside its boundaries that may affect its planning.246 The plan
must include nine required elements: land use, circulation, housing,
conservation, open space, seismic safety, noise, scenic highway, and
safety; and it may include some optional elements: recreation, transpor-
tation, transit, public service and facilities, public building, community
design, and redevelopment.247
The state legislature intended "to provide only a minimum of limita-
tion in order that counties and cities may exercise the maximum degree
of control over local zoning matters."248 Since the cities' plans would


243. Cal. Gov't Code 66610 (West Supp. 1966-77).
244. 1976 CCA, supra note 2, 30103 (1977).
245. California Land Use Report, supra note 203.
246. Cal. Gov't Code 65300 (West 1966).
247. Id. 65302-65303 (West Supp. 1966-77).
248. Id. 65800.










COASTAL LAND MANAGEMENT


set forth only general guidelines, the cities and counties would also need
to adopt zoning laws or other regulatory ordinances, which must be
consistent with the plan.29" Some opponents of a strong state role in
coastal zone management, such as the County Supervisors Association
of California, argued, in 1976, that since zoning and other regulations
were already required to be consistent with the local plans, the state's
role in a permanent coastal program should be limited to certifying that
local plans were consistent with state coastal policies.250
The open space element is the only element of the local general plan
with which all government regulatory decisions must be consistent.25
The importance of this consistency requirement is to permit a court
upon judicial review to address the substantive question of the relation
of the implementing ordinances to the preadopted open space policies
and standards.252
1. Observations about California's Local Planning Process
California has had considerable experience with mandated local plan-
ning, and several knowledgeable observers have voiced concern about
its effectiveness. The criticisms are that (1) funding is often inadequate
to meet the statutory mandates; (2) overattention to the statutory re-
quirements may detract attention from more important planning issues;
(3) enforcement of the plan's policies and objectives is often ineffective;
and (4) planning should proceed within a framework of state guidelines
(a result that, of course, has been achieved in the 1976 coastal act).
David Beatty, an attorney for the League of California Cities,
believes that requiring certain elements in city plans has "caused a lot
of confusion among California cities...particularly the smaller
cities."253 He fears that the legislature will add a new element for each
new problem, and believes that the financial resources of smaller cities
are inadequate to pay for the sophisticated planning required by the
act. Paul Sedway, the San Francisco urban planner, and Joseph
Bodovitz, former state coastal commission executive director, voiced
similar criticisms of and disenchantment with the mandated-elements
approach-Sedway for reasons of inadequate funding and the tendency

249. Id. 65860.
250. See notes 379-82 infra and text at same.
251. Cal. Gov't Code 65566 (West Supp. 1966-77).
252. See Coalition for Los Angeles County Planning in the Public Interest v. Board of Super-
visors, Civ. No. C-63218 (Super. Ct. Los Angeles County Mar. 12, 1975).
253. Interview with David F. Beatty, Esq., League of California Cities, in Sacramento, Aug.
26, 1975.


1


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714 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


for the elements approach to detract from needed flexibility and crea-
tivity in planning and enforcement problems, and Bodovitz because
local enforcement of the plan is usually inadequate.254 In early 1975,
Bodovitz questioned whether local enforcement would be adequate even
if California had a stronger nexus between its general plans and imple-
menting regulations.2s5 The principal consultant for the state assembly's
Office of Research believes that local planning also suffers because of
lack of sufficient and meaningful participation by citizens in plan devel-
opment and because drafting useful plans is difficult without state
guidelines to follow.256
D. Case-by-Case Planning: CEQA'S Requirement of an Environmental
Impact Report (EIR)
Generally, the California Environmental Quality Act (CEQA),257 pat-
terned after the National Environmental Policy Act of 1969,258 requires
that an environmental impact report (EIR) be prepared for certain pro-
posed projects and activities "which may have a significant effect on
the environment.""29 The scope of CEQA was expanded greatly by
Friends of Mammoth v. Board of Supervisors of Mono County,260
which held that CEQA applied to "private activities for which a permit
or other similar entitlement is required."26' Thus, a broad range of
public and private developments and other activities that may have a
significant effect on the environment cannot proceed without prepara-
tion of an EIR.
The EIR must include a detailed statement setting forth the following:
(a) The significant environmental effects of the proposed project.
(b) Any significant environmental effects which cannot be avoided if
the project is implemented.


254. Bodovitz interview, supra note 46; Sedway interview, supra note 137.
255. "I don't think you can point to many places in the country where zoning and planning
have protected areas against persistent, long-term development pressure; you can't point to many
places in California that have been protected for any length of time by zoning and local govern-
ments' mandated plans." Bodovitz interview, supra note 46.
256. Interview with Frederick G. Styles, principal consultant, Office of Research, California
State Assembly, in Sacramento, Feb. 13, 1975. See also California Land Use Report, supra note
203, at 26-27, which voiced similar conclusions about the shortcomings of the local planning ap-
proach.
257. Cal. Pub. Res. Code 21000-21172 (West 1977 & Cum. Supp. 1978).
258. 42 U.S.C. 4331-4347 (1970 & Supp. V 1975).
259. Cal. Pub. Res. Code 21100 (West 1977).
260. 8 Cal. 3d 247, 502 P.2d 1049, 104 Cal. Rptr. 761 (1972).
261. Id. at 253, 502 P.2d at 1052, 104 Cal. Rptr. at 764.


r7 -----------










COASTAL LAND MANAGEMENT


(c) Mitigation measures proposed to minimize the significant environ-
mental effects including, but not limited to, measures to reduce wasteful,
inefficient, and unnecessary consumption of energy.
(d) Alternatives to the proposed project.
(e) The relationship between local short-term uses of man's environ-
ment and the maintenance and enhancement of long-term productivity.
(f) Any significant irreversible environmental changes which would be
involved in the proposed project should it be implemented.
(g) The growth-inducing impact of the proposed project.
The report shall also contain a statement briefly indicating the reasons
for determining that various effects of a project are not significant and
consequently have not been discussed in detail in the environmental im-
pact report.262
At a time when California's total planning process was generally un-
coordinated and erratic-particularly in providing an inadequate data
base for decisions about coastal development or other major develop-
ment likely to have significant environmental effects-the "ad hoc
planning" mandated by CEQA was undoubtedly essential. Former
coastal commission Executive Director Bodovitz noted, in 1975, that
"the EIR is of enormous value" in providing the information needed for
the interim coastal regulatory process.263 It was also useful in the for-
mulation of coastal policies. The EIR'S are not universally supported in
California, however, and the criticisms should be carefully evaluated to
determine whether the benefits of the EIR's will continue to outweigh
their detriments. Michael Fisher, for example, formerly executive direc-
tor of the north central commission and now executive director of the
California coastal commission, believed that although the EIR approach
was "an essential interim step," at some point EIR'S "need to be re-
placed by a different kind of planning process."264 He suggested that
proper comprehensive planning-a "policy-making, choice-setting pro-
cess"-could more efficiently and expeditiously accomplish what the
EIR'S have accomplished in the interim, by considering more than just
environmental impacts and focusing on "policy choices rather than
focusing on relatively marginal impacts."
The criticisms of EIR's are that they (1) are inordinately expensive for
the benefits received; (2) cause costly delays in approval of applications;
(3) have little direct impact on decision making; and (4) are difficult to


262. Cal. Pub. Res. Code 21100(a)-(g) (West 1977).
263. Bodovitz interview, supra note 46.
264. Fischer interview, supra note 17.


Y


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


store, coordinate, and retrieve. Paul Sedway, who criticized the EIR
process in a study for the federal Environmental Protection Agency,265
said that although "EIR'S and other environmental controls have
probably led to a better and more efficient urban pattern," that they
were not "worth the effort that [was] going into them [at least in
California]; they tend to weaken the planning process and do not add
very much to the decision-making process." In 1975, Sedway believed
that the California EIR process would be improved if local governments
were required to "consider" the EIR, citing the Florida development of
regional impact process as being more desirable in this regard. He
concluded, though, that it was "not very productive" to gather infor-
mation project by project, with the concomitant difficulties in storing
and retrieving the accumulated information.
Many of Sedway's concerns were alleviated by 1976 amendments to
CEQA,266 including provisions, for example, "that public agencies should
not approve projects as proposed if there are feasible alternatives or
feasible mitigation measures available which would substantially lessen
the significant environmental effects of such projects," that a "local
agency functioning as a lead agency shall have responsibility for
considering the effects, both individual and collective, of all activities
involved in a project," and that informationin developed in individual
environmental impact reports be incorporated into a data base which
can be used to reduce delay and duplication in preparation of
subsequent environmental impact reports."
Several observers noted the problem of expense, but recognized that
part of the expense was caused by marginally qualified consultants who
compile unnecessary data and gloss over major issues. This deficiency
could be cured, Joseph Bodovitz argued, citing the BCDC requirement
that essential information must be summarized in an EIR cover sheet not
exceeding two pages.267 The executive director of the north coast com-
mission noted how damaging the EIR delay could be to an industry such
as logging, in which work is seasonal.268
California's EIR requirement has served a needed interim function,
though the information collected has not been used effectively in the


265. See also Sedway/Cooke, for the Planning and Conservation Foundation, Land and the
Environment: Planning in California Today (Los Altos, Cal.: William Kaufmann, Inc., 1975);
Sedway interview, supra note 137.
266. Cal. Pub. Res. Code 21002, 21002.1, 21003 (West 1977).
267. Bodovitz interview, supra note 46.
268. Lahr interview, supra note 140. See notes 160-61 supra.


lp


1978:647










COASTAL LAND MANAGEMENT


total California planning process. The 1976 amendments should
improve the CEQA process. Nevertheless, after local governments have
secured certification of their local coastal programs, the California
legislature should consider dispensing with the EIR requirement for the
coastal zone, except, perhaps, for exceptional categories of major
developments.
III. THE CALIFORNIA COASTAL ACT OF 1976
The California Coastal Act of 1976269 is in the vanguard of coastal
zone management efforts in the United States. Basically, it continues
the two general functions started in 1972: (1) preparation of compre-
hensive plans for the coastal area, and (2) regulation of development in
the coastal zone. A major distinguishing feature of the 1976 act,
however, is the strong role given local governments, relied on heavily by
the legislature "[t]o achieve maximum responsiveness to local condi-
tions, accountability, and public accessibility."270 Local governments
immediately perform substantial functions in planning, being required
to bring their "local coastal programs" into conformity with the
policies of the 1976 act. When their programs are certified, they will
perform substantial regulatory functions.
The 1976 act does not contain precise directions for use of coastal
land resources. Rather, it sets forth general policies, then directs each
local government to prepare a "local coastal program," which is
defined as a local government's "land use plans, zoning ordinances,
zoning district maps, and implementing actions."271 The completed
local coastal program is submitted to the regional commission for
approval as being in conformity with the policies of the 1976 act.272
The act then provides for submissions and appeals, in certain cases, to
the state commission and for ultimate certification by the state
commission.273 Following certification, amendments must be reviewed
and approved by the state commission.27
The act provides that, after January 1, 1977, "any person wishing to
perform or undertake any development in the coastal zone shall
obtain a coastal development permit."275 If its local coastal program


269. Supra note 2.
270. 1976 CCA, supra note 2, 30004(a) (1977).
271. Id. 30108.6.
272. Id. 30510-30522.
273. Id. 30512-30513.
274. Id. 30514(a).
275. Id. 30600(a).


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718 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


has been certified, the local government issues permits (subject to
exceptions in certain sensitive resource areas and for appeals for certain
categories);276 if certification has not been obtained, the permit must be
obtained "from a regional commission, [or] the [state] commission on
appeal."277
The 1976 act also provides for eventual termination of the regional
commissions. The state commission had to certify that a regional com-
mission was "necessary" before the regional commission could take any
action after January 1, 1977.278 All regional commissions were certified,
but each is scheduled to terminate by June 30, 1981, or earlier if all
local coastal programs in its region have been certified and all imple-
menting devices have become effective.279 However, since the state
commission may then establish a regional office, it seems likely that
California will have regional coastal offices in the 1980s.280 Proposition
13 may also influence the decision whether to continue the regional
offices.
The California Coastal Act of 1976 is still an interim process. Until a
precise local coastal program is in effect, which could be 1981281 or
later if litigation ensues, applicants for coastal development permits will
continue to face the fairly general standards of the 1976 act. Therefore,
it is likely that persons wishing to undertake development in many parts
of the California coast will be subject to development uncertainty for
close to a decade.
A. The Coastal Management Policies
The 1976 act establishes a coastal decision-making system and
requires that certain official decisions be measured by the act's "coastal
resources planning and management policies."282 Local coastal pro-
grams, to receive certification, must conform to these policies.283 Prior
to certification, the policies are the controlling standards for coastal
development permits.284

276. Id. 30600(d); 30519.
277. Id. 30600(c).
278. Id. 30304.5(b)-(c).
279. Id. 30305, as amended by ch. 1076, 1978 Laws, West's Calif. Legis. Serv. 1978.
280. Id. 30317.
281. Id. 30501(b), as amended by ch. 1075, 1978 Laws, West's Calif. Legis. Serv. 1978 (if
prepared by local government, must be submitted by Jan. 1, 1981, or if prepared by state commission,
must be certified not later than June 1, 1981).
282. Id. 30200-30264 (1977 & Cum. Supp. 1978).
283. Id. 30512(e). Cf. notes 380-88 infra and text at same.
284. The permit shall be issued if the development "is in conformity with" the policies and if
the "development will not prejudice the ability of the local government to prepare a local coastal
program." Id. 30604(a).










COASTAL LAND MANAGEMENT


The policies purport to cover all significant coastal issues. They are
categorized under headings of general, public access, recreation, marine
environment, land resources, development, and industrial development.
They are the distillation of 162 major policy recommendations included
in the California Coastal Plan, the final report of the California
Coastal Zone Conservation Commissions.285 Since these policies have
significant legal effect, in the following sections I analyze the policies
and how they were formulated.
1. The Coastal Policies as "Authoritative General
Directive Arrangements"

In years past there was often little connection between planning and
regulation,26 but now a strong nexus is emerging in California and
elsewhere because of two principal changes in the design of land use
regulations: (1) legislative enactment of "plans," containing "policies,
standards, and guidelines,""' and (2) requirements that future official
decisions, such as issuance of development orders, be "consistent" or
in "conformity" with the adopted plans.2'" The "policies" of the 1976
California act thus constitute official directions to government officials
and to citizens.
Henry Hart and Albert Sacks have described a continuum of
"authoritative general directive arrangements,""29 ranging from the
most abstract, indefinite directions at one pole to the most specific,
definite directions at the other. They categorized the types of official
directions as follows:
(1) Rule. The most precise form of authoritative general direction ...
a rule may be defined as a legal direction which requires for its



285. 1975 California Coastal Plan, supra note 1.
286. See Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use Regula-
tion, 74 Mich. L. Rev. 900 (1976), where Professor Mandelker notes that although "[t]he Stan-
dard State Zoning Enabling Act did contain enigmatic language stating simply that zoning 'shall
be in accordance with a comprehensive plan' (id. at 902), "[t]he early judicial interpretations of
the statutes almost uniformly accepted a narrow reading that the 'comprehensive plan' with which
zoning must be 'in accordance' could be found within the text of the zoning ordinance." Id. at
904.
287. See, e.g., Florida's Local Government Comprehensive Planning Act of 1975, Fla. Stat.
Ann. 163.3161-.3211 (West Cum. Supp. 1978).
288. See, e.g., notes and text at id. 163.3194, and Mandelker, supra note 286, at 906
("Florida has recently adopted a consistency provision that is both more focused and more exten-
sive in scope than that of California ... Perhaps even more far-reaching, however, is its applica-
tion of the policies of the plan to 'development orders' by governmental agencies." Id. at 960,
961).
289. Henry M. Hart, Jr., & Albert M. Sacks, The Legal Process: Basic Problems in the Making
and Application of Law (Tentative ed., Cambridge, Mass., 1958).


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


application nothing more than a determination of the happening or non-
happening of physical or mental events-that is, determinations of fact.
(2) Standard. A standard may be defined broadly as a legal direction
which can be applied only by making, in addition to a finding of what
happened or is happening in the particular situation, a qualitative
appraisal of those happenings in terms of their probable consequences,
moral justification, or other aspects of general human experience .
(3) Principles and Policies. Notably to be contrasted with rules and
standards are principles and policies . A policy is simply a statement
of objectives . [A] principle also describes a result to be achieved but
it differs in that it asserts that the results ought to be achieved and
includes, either expressly or by reference to well-understood bodies of
thought, a statement of the reasons why it should be achieved ..
Primarily, principles and policies are used and useful as guides to the
exercise of a trained and responsible discretion. Usually, this means
official discretion.290
The "coastal resources planning and management policies," which
are "standards" for determining the "adequacy of local coastal
programs" and the "permissibility of proposed developments,"29' are
composed of various kinds of "authoritative general directive arrange-
ments." They are "authoritative" because they have the enforcement
power of the state behind them. They are "general" because they are
addressed to a large group of government officials, landowners,
developers, and individual citizens. They are "directive" because they
set forth the ranges of permissible behavior. As "arrangements," they
are a combination of "rules, standards, principles, and policies"
designed to strike an optimum balance between the "antinomies of
order and freedom,"292 a balance that I explore further in the subse-
quent discussion on "level of generality."
In the following discussion, I refer to the "authoritative general
directive arrangements" of the 1976 act as "policies" or "standards,"
in keeping with the act's terminology. I review how the policies were
formulated and evaluate the policies themselves by asking whether and
the extent to which the policies are: (1) comprehensible; (2) optimally
general; (3) comprehensive, both (a) substantively and (b) geograph-
ically; (4) internally consistent and coordinated; (5) reasonable; (6)
acceptable (i.e., likely to inspire general public confidence); and (7)
purposeful and likely to inspire action and compliance.



290. Id. at 155-60.
291. 1976 CCA, supra note 2, ch. 3, 30200-30264 (1977 & Cum. Supp. 1978).
292. See note 305 infra and text at same.


1978:647










COASTAL LAND MANAGEMENT


The policies were formulated by the regional and state commissions.
"[H]undreds of public hearings were held on the evolving coastal
plan,"293 with the commissions relying heavily on the experiences
derived from the granting of permits.294 The California Coastal Zone
Conservation Commissions' California Coastal Plan295 was completed
and submitted to the governor and the legislature on December 1, 1975.
The California legislature debated, modified, and, in late August 1976,
enacted the policies as part of the California Coastal Act of 1976.296
The method of policy formulation is elaborated here because of the
judiciary's tendency, in land use matters, to inquire into matters of
substantive reasonableness.297 Reasonableness of means could well be at
issue in a substantive due process attack and might have subtle effects
on "taking" litigation as well.298
a) Comprehensibleness El Coastal management policies should be
clear, concise, and comprehensible. They are official directions to
officials, to landowners and developers, and to the public. They should
provide an ordinary, reasonable Californian with some reasonable
expectations of how the California coast will be used in the future.
Under the 1976 act, local governments must bring their local general
plans into conformity with the state policies. During the interim period,
the coastal agencies will work with local governments. Federal agencies
will also have to measure certain actions against the policies, since
California has received section 306 approval under the Federal Coastal
Zone Management Act of 1972.299 Therefore, the policies must be
readily understandable by all these officials, as well as by judges, who
may be called upon to decide whether plans or permits are "in con-
formity with"300 the policies.
The coastal policies are the official indications of what will be
considered acceptable uses of land and embody the philosophical shift


293. U.S., Department of Commerce, National Oceanic and Atmospheric Administration,
Office of Coastal Zone Management & California Coastal Commission, Combined State of
California Coastal Management Program (Segment) and Final Environmental Impact Statement 17
(Aug. 1977) [hereinafter cited as California Coastal EIS].
294. Id. See notes 42-50 supra and text at same.
295. 1975 Coastal Plan, supra note 1.
296. 1976 CCA, supra note 2.
297. Cf., e.g., Berger, supra note 78, at 686.
298. See The Federal Role, supra note 54, at 221-29 & nn. 290-324.
299. See American Petroleum Inst. v. Knecht, 12 E.R.C. 1193 (D.C.D. Cal. 1978), in which the
court denied an injunction barring department of commerce approval of the California coastal zone
management program.
300. 1976 CCA, supra note 2, 30604(a), (b) (1977).





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from a monolithic concept of "property" to sharp differentiation
among objects of property. For example, what is considered reasonable
use of a wetland may differ to a great extent from what is considered
reasonable use of other types of land.30' Our constitutional protections
of property embody basic but changing ethical notions of fairness and
reasonableness.302 Landowners and others must be able to understand
these changes, legislatively enunciated, for judicial limitation of
legislative power has been restrained, especially in California, when
"the public interest" is at issue.303
b) The level of generality E Drafting coastal policies with an
optimal level of generality is difficult but crucial. To know how specific
to make the directions (i.e., the "authoritative general directive
arrangements") requires a clear understanding of the philosophy under-
lying the coastal program. Are local governments to be implementing
agents of a central authority or partners in a cooperative venture? The
decision is critical if local governments' innovative, creative, and
cooperative efforts are to be maximized.
The late British economist, E. F. Schumacher, has described a theory
of large-scale organization in which a central authority's directions
should meet a test he calls a middle axiom, that is, the direction should
be "an order from above which is yet not quite an order."304 He
argued that a middle ground must be found between "the soft method
of government by exhortation" and "the tough method of government
by instruction." Drawing attention to the "antinomy of order and
freedom," from which he suggested "all real human problems arise,"
he explained:
Without order, planning, predictability, central control, nothing
fruitful can happen, because everything disintegrates. And yet-without
the magnanimity of disorder, the happy abandon, the entrepreneurship
venturing into the unknown and incalculable, without the risk and the
gamble, the creative imagination rushing in where bureaucratic angels
fear to tread-without this, life is a mockery and a disgrace.


301. See Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972) ("[T]his depreciation
of value is not based on the use of the land in its natural state but on what the land would be
worth if it could be filled and used for the location of a dwelling.... [V]alue based upon changing
the character of the land at the expense of harm to public rights is not an essential factor or con-
trolling," 56 Wis. 2d at 19, 201 N.W.2d at 771).
302. Michelman, supra note 83.
303. See 1 Williams, supra note 11, 6.03, at 115.
304. E. F. Schumacher, Small Is Beautiful: Economics as if People Mattered 252 (New York:
Harper & Row, 1973).


1978:647










COASTAL LAND MANAGEMENT


The centre can easily look after order; it is not so easy to look after
freedom and creativity. The centre has the power to establish order, but
no amount of power evokes the creative contribution.305
Order and predictability are promoted by "rules," by setting forth
precise directions. But freedom and creativity are promoted by "prin-
ciples and policies," by setting broad guidelines within which a broad
range of discretionary decisions can be made. The task, Schumacher
argued, is not to look at order versus freedom as presenting an "either-
or" alternative, but rather as posing a problem of how to achieve "the-
one-and-the-other-at-the-same-time."306 This problem, he believes, per-
vades any "real life" situation (as opposed to "laboratory problems
from which all extraneous factors have been carefully eliminated").
Coastal zone management is a good example of a complex "real life"
problem in which "extraneous factors" will always be present.
California has wisely chosen not to institute direct state regulation in
the coastal zone; rather, its permanent coastal management program
will rely heavily on local governments to do the planning within a
framework of state coastal policies. I believe that a large, diverse state
with a coastline as long as California's is compelled to reach such a
compromise between localism and centralism, not only by such political
considerations as "home rule"307 traditions but also because of the
homogenizing tendencies of too much central control. Schumacher
adds:
"It is an injustice and at the same time a grave evil and disturbance of
right order to assign to a greater and higher association what lesser and
subordinate organizations can do. For every social activity ought of its
very nature to furnish help to the members of the body social and never
destroy and absorb them."''3
A corollary is that "the burden of proof lies always on those who want
to deprive a lower level of its function, and thereby of its freedom and
responsibility." 309
Our society has long recognized that unfettered private freedom must
give way to some governmental regulation, and it is now generally
accepted that higher levels of government must play a cooperative role


305. Id. at 250-51.
306. Id. at 243.
307. See notes 13-16 supra and text at same for discussion of statutory and constitutional home
rule.
308. Schumacher, supra note 304, at 244.
309. Id. at 243.


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


in a coastal regulatory process. But the relationships of the individual
to government, and of local, state and national governments to one
another, are affected by subtle differences in institutional arrangements.
Most people would agree that the coastal management program should
leave "elbow-room and scope to do the thing never done
before the new, unpredicted and unpredictable outcome of a man's
creative idea."3'1 These goals will be more likely attained by a design
that leaves maximum latitude and provides maximum incentives for the
"creative spark" to come from individual efforts and from local
governments. Centralized bureaucracy has a tendency to strive for too
much order. As Schumacher generalizes: "Administrators taken as a
pure type are happy when they have everything under control."31'
Coastal management policies need to be general enough to be appli-
cable along the entire California coast yet specific enough to provide
meaningful guidance; general enough to give local governments latitude
in "tailoring" precise plans and regulations for unique circumstances
but specific enough for a court to determine whether a local govern-
ment's plan indeed conforms with the policies. In summary, state
coastal policies should provide only a framework, not the final regula-
tory arrangement.
Informed persons had divergent reactions to what has been done in
California. A major complaint during the interim regulatory phase was
that the commissions were unable to tell a developer precisely how he
might develop a given parcel of land.312 An attorney who represented
major developers characterized the evolving coastal plan, as of May
1975, as "not a plan in any sense at all; it's a general statement." He
believed guidelines should be established for resolving controversies,
such as the degree to which effluents would be controlled or the conse-
quences of other land use impacts, for example, the effects of live-
stock upon waters.3' An attorney who often represented environmental
interests, although generally more sympathetic with the policies-plan
approach, could also foresee problems of determining whether particu-
lar action was consistent with the coastal plan.314 A Sierra Club repre-


310. Id.
311. Id. at 246. This statement is more an admonition to the legal architect of coastal manage-
ment arrangements than a criticism of public servants. Administrators must work within their
statutory mandates, and some problems attributed to administrators are caused by bad drafting of
legislation.
312. Bodovitz interview, supra note 46.
313. Ellman interview, supra note 66.
314. Gralnek interview, supra note 31.


1978:647










COASTAL LAND MANAGEMENT


sentative feared lack of specificity in the plan would make it "too easy
to certify compliance with the plan," to "rubber stamp" in the face of
a heavy workload.3' But one regional executive director believed that
the major accomplishment of the planning process and resulting plan
was its educational benefit; he considered the preparation and adoption
of the state plan only preliminary to achieving "a precise plan of how
the resources of the state should be used or not used." Accordingly he
believed the coastal plan would simply be "preliminary groundwork for
the precise planning that must follow.""6 Another attorney felt that
"the situations are not uniform enough" for precise directions at the
state level.317
After the coastal plan's adoption by the commission in December
1975, policies were gradually simplified and reduced in number. In the
process they became increasingly general.318 They were further reduced
and modified before they were adopted as part of the California
Coastal Act of 1976. Whether they provide adequate guidelines is a
difficult question.319 Some local governments may have a difficult time
implementing the "conformity" requirement, yet it may be impossible
to structure a state-level program with a satisfactory balance between
clear direction and flexibility. That requires, therefore, "an ongoing
process where the coastal policies are continually refined."320 This
refinement can be accomplished at the local and regional levels, but
state policies should also be continually updated and refined.
c) Internal consistency and priorities E E Coastal management pol-
icies should be coordinated and internally consistent. A coastal plan
treats a complex combination of environmental, economic, and social
interrelationships. Promotion of one value often requires that another
be disregarded or compromised. Priorities of uses must therefore be
established.
Earlier drafts of California's coastal plan were criticized for lack of
internal consistency and clear statement of priorities. Although the final
coastal policies show commendable responsiveness to these criticisms,
some typical complaints during the formulation period will illustrate the
problems of policy formulation.

315. Von der Muhll interview, supra note 102.
316. Crandall interview, supra note 68. See also Scott, supra note 19, at 58.
317. Gralnek interview, supra note 31.
318. "The level of generality is necessarily very gross." Interview with Paul Sedway,
Sedway/Cooke Urban Planners, in San Francisco, June 21, 1976.
319. "I don't think anyone knows the answer." Beatty interview, supra note 212.
320. Sedway interview, supra note 137.


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726 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


The California coastal commission initially isolated several elements
to be considered in coastal planning, then developed one planning
element at a time. A former official of the Office of Planning and
Research decried this "isolation of elements" and urged that the
"problem of segmentation" be solved by horizontal coordination of the
plan with other state planning efforts (e.g., of the energy commission)
and vertical coordination with existing local plans (e.g., the open-space
element of the local general plan).32" Another official also criticized the
element-by-element approach but felt there was no alternative. He
urged that priorities be set and said the staff of his commission believed
that access to recreational beaches was a top priority.322 Others who
emphasized the need to establish priorities recognized that part of the
problem lay in the diversity of the state.323
The California Coastal Act of 1976 establishes priorities among com-
peting and conflicting uses, as illustrated by the following policies.
A basic goal is to assureue priority for coastal-dependent development
over other development on the coast.""24
The use of private lands suitable for visitor-serving commercial
recreational facilities designed to enhance public opportunities for coastal
recreation shall have priority over private residential, general industrial,
or general commercial development, but not over agriculture or coastal-
dependent industry.325
d) Substantive comprehensiveness D The substantive scope of a
coastal plan should be broad enough to deal with all natural and man-
made resources and values of the coastal zone-whether environmental,
economic, or social. Protection of critical natural resources such as wet-
lands, beaches, dunes, and prime agricultural lands should receive con-
sideration as should social values such as assuring adequate recreational
facilities and public access thereto and adequate housing reasonably
accessible to employment opportunities.326 Low-cost housing, energy,
and transportation policies, for example, are statewide problems that,
although relevant to coastal zone management, must also be coordi-
nated with statewide planning. But Joseph Petrillo, while counsel to the
state coastal commission, was openly skeptical whether land use plan-


321. Baume interview, supra note 206.
322. Smith interview, supra note 146. He was head of the coastal plan division of the South
Coast Regional Commission.
323. See Lahr interview, supra note 140.
324. 1976 CCA, supra note 2, 30001.5(d) (1977).
325. Id. 30222.
326. See notes 163-67 supra and text at same.


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COASTAL LAND MANAGEMENT


ning could be "comprehensive": "you can deal with about two or three
important things in any given situation, but beyond that [compre-
hensive planning] tends to fall apart."327
e) Geographical comprehensiveness El Legislators attempting to
define a geographically comprehensive zone to be regulated must con-
sider what would be appropriate regulatory and planning zones. (The
planning zone might be larger than the regulatory zone.) Appropriate
geographical coverage also depends upon the coastal management
potential of local governments and the relationship of the coastal
management program to statewide programs."3
One general model is the Federal Coastal Zone Management Act's
definition:
"[C]oastal zone" means the coastal waters...and the adjacent shore-
lands (including the waters therein and thereunder), strongly influenced
by each other and in proximity to the shorelines.., and includes islands,
transitional and intertidal areas, salt marshes, wetlands, and beaches....
The zone extends inland from the shorelines only to the extent necessary
to control shorelands, the uses of which have a direct and significant
impact on the coastal waters.329
Or the area to be regulated could be defined in terms of "a line drawn
to protect the coastal resources-a line that was consistent with the
coastal policies."3 Ideally, a coastal plan would be one major com-
ponent of a statewide planning process and plan. Coastal objectives and
policies would be developed within the framework of statewide needs.
But as stated earlier,33' California's state planning capacity is inade-
quate.
Joseph Bodovitz, while executive director, noted that the commission
was concerned that the coastal plan be designed to "tie in to whatever
kind of statewide land use planning program ultimately is devel-
oped.""332 As the commission foresaw, lack of a statewide plan during
the development of the coastal plan had unfortunate consequences:
"the ironic thing about the coastal zone," one attorney noted, "is that


327. Interview with Joseph Petrillo, in Sacramento, June 22, 1976.
328. Appropriate geographical coverage is determined not only by physical aspects of the land
(e.g., wetlands regulation may have to extend to adjacent transitional areas) and the intent of the
legislation (e.g., regulations to prevent the obstruction of scenic views will differ from regulations
to protect habitats) but also by the ability of local governments to manage an area (e.g., budget
limitations may preclude adequate supervision of a large area).
329. 16 U.S.C. 1453 (1) (1976).
330. Beatty interview, supra note 212.
331. See notes 203-16 supra and text at same.
332. Bodovitz interview, supra note 46.


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


they are experiencing a lot of rush projects in the development just a
thousand yards back. But as a practical matter in California, coastal
planning probably had to come first.""' Otherwise there might have
been the danger of losing the commitment to coastal planning if too
much emphasis had been placed on statewide planning."4
The interrelationship of sensitive resource areas is substantial, and
there needs to be, for example, "some mechanism for assuring that
development activities in certain critical watersheds not be inconsistent
with what you are trying to do in the immediate coastal zone.""' But it
is hard to be comprehensive without drawing the planning area on such
a large scale that "traditional allocations of power must be signifi-
cantly changed." Once planning is better developed and the trade-offs
are better known, comprehensive approaches may be workable.36
The 1976 coastal act defines the "coastal zone" generally as "extend-
ing seaward to the state's outer limit of jurisdiction, including all
offshore islands, and extending inland generally 1,000 yards from the
mean high tide line.""' The state commission was required to file a
precise map by March 1977,"38 with major modifications of the basic
1,000-yard measurement in the following special categories:
(a) "In significant coastal estuarine, habitat, and recreational areas
[the zone] extends inland to the first major ridgeline paralleling the sea
or five miles from the mean high tide line of the sea, whichever is
less.""9 These expanded areas-which during the 1976 legislative debate
became known as "bulges"-originally included additional "bulges"
(especially for prime agricultural lands) that were sharply cut back in
final legislative compromises.340
(b) "[I]n developed urban areas the zone generally extends inland less
than 1,000 yards."341 A local government may request that certain
urban land areas be excluded from the "coastal zone" boundaries
under prescribed conditions.342
(c) The area under the jurisdiction of the San Francisco Bay Con-
servation and Development Commission and certain contiguous areas

333. Ellman interview, supra note 66.
334. Von der Muhll interview, supra note 102.
335. Lahr interview, supra note 140.
336. Gralnek interview, supra note 31.
337. 1976 CCA, supra note 2, 30103(a) (1977).
338. Id. 30103(b).
339. Id. 30103(a).
340. See 1975 Coastal Plan, supra note 1, at 54-61, and maps at 278 et seq.
341. 1976 CCA, supra note 2, 30103(a) (1977).
342. Id. 30610.5.


1978:647










COASTAL LAND MANAGEMENT


were also excluded.343 The existing BCDC program was meshed with the
1976 act, with the BCDC'S program becoming the first segment to
qualify under section 306 of the Federal Coastal Zone Management Act
of 1972.344
f) Reasonableness E E Rather than being a utopian dream, a coastal
plan should promote reasonable efforts at solving problems and obtain-
ing objectives consistent with the financial and political realities of the
state.345
A League of California Cities attorney criticized the preliminary plan
for failing to discuss the economic costs of implementing the policies.
He believed that the costs of planning and implementation should be
explicit. Critics of the 1976 act feared that smaller municipalities would
not have adequate funds to prepare the detailed plans required or to
administer permanent coastal programs once approved. The act's
requirement that each city's long-term plan also provide for low-cost
housing, open-space acquisition, and the like also places financial
burdens on local governments.346 This concern about the financial im-
pacts on local governments has probably been exacerbated by approval
of Proposition 13, and according to one source,347 has become a severe
problem in some communities as of the fall of 1978.348
The 1976 act "itself made no appropriations for coastal management
activities but has several provisions of interest."'49 According to the
final environmental impact statement accompanying California's appli-
cation for section 306 approval under the Federal Coastal Zone
Management Act of 1972, the act specifically deals with the local cost
issue, acknowledging that "there may be direct planning and admin-
istrative costs" imposed on local governments and stating that "it is the
intent of the Legislature that such costs to local government shall be
reimbursed by the State."350 The coastal commission has several poten-

343. Id. 30103.
344. Interview with Richard B. (Ben) Mierenet, assistant Pacific regional manager, Office of
Coastal Zone Management, in Washington D.C., Mar. 31, 1977.
345. Cf. 1 Williams, supra note 11, 1.07, at 13.15.
346. Beatty interview, supra note 253. Paul Sedway, the San Francisco urban planner, believed
state funds should be supplied for implementation. Sedway interview, supra note 137.
347. Frazier telephone interview, supra note 170.
348. See note 386 infra and text at same.
349. California Coastal EIS, supra note 293, at 95.
350. Id. See 1976 CCA, supra note 2, 30516(a) (1977), which supports the EIS statement that
"the Coastal Commission cannot withhold approval of a local coastal program 'because of the in-
ability of the local government to financially support or implement any policy or policies' of the
Coastal Act, though this does not require approval of a program 'allowing development not in
conformity with the policies' of the Coastal Act." See also Cal. Rev. & Tax Code 2231(a) (West
1970 & 1978 Supp.).


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


tial sources of funds for management and acquisition activities, includ-
ing permit fees, funds available under certain provisions of the Federal
Coastal Zone Management Act, annual legislative appropriations, and
other sources such as the State Urban and Coastal Park Bond Act of
1976, approved in November 1976, which "provides for $280 million in
bonds, of which about $145 million will be applied to coastal acquisi-
tion and other activities.""' Assessing all potential sources of funds,
the environmental impact statement accompanying California's applica-
tion for funds under section 306 of the federal act concluded:
In general, the Coastal Commission expects no insurmountable prob-
lem in the funding of the preparation of adequate local coastal pro-
grams, which will enable the Coastal Commission to certify the programs
and transfer much of the implementation of the California Coastal
Management Program (including the general development permit author-
ity in the coastal zone) to local governments.3'2
This prediction, however, predated approval of Proposition 13 in
June of 1978. Although the State of California had a large budget
surplus which, during the first "post-13" year, has mitigated the
proposition's financial impact, eventually some anticipated sources of
funds for coastal planning and regulation may no longer exist.
One foreseeable alternative source could be increased exactions from
land developers and other fees as a condition to gaining development
approval.3" H. J. Frazier, the land development executive whose com-
pany's project at Half Moon Bay was discussed earlier,354 provides this
sobering estimate of the November 1978 value of a coastal development


351. Id.
352. California Coastal EIS, infra note 399, at 77.
353. Cf., e.g., Associated Home Builders v. City of Walnut Creek, 4 Cal. 3d 633, 484 P.2d
606, 94 Cal. Rptr. 630 (1971) (subdivision exactions); 1976 ccA, supra note 2, 30620(c) (1977)
("reasonable filing fee and the reimbursement of expenses for the processing by the regional com-
mission or the commission of any application for a coastal development permit"); John J.
Costonis, Development Rights Transfer: An Exploratory Essay, 83 Yale L.J. 75, 109-14 (1973).
See also Proposition 13: A Clamp on Land Use, in the Wash. Post., Sept. 21, 1978, A25, at col.
1, which contains the following: "[Proposition 13] is threatening to place a clamp on new residen-
tial development potentially more effective than any existing land-use law. The result could be a
curb on the sprawl development often so harmful to cities and established suburbs Of all the
effects, the joker in the deck, the effect practically no one anticipated, is the damper on new
development. The likely result: a slowdown in new subdivision construction, a sharp shift in
costs to developers and, at least in some cities and suburbs, a virtual freeze on new subdivision
building At a minimum, Proposition 13 now seems certain to drive up California's already
sky-high housing prices. The increased costs will be a heavy blow to low-income people and make
mincemeat of Howard Jarvis's pre-vote claim that Proposition 13 would make housing more af-
fordable to young households by reducing property taxes."
354. See notes 170-92 supra and text at same.


1978:647










COASTAL LAND MANAGEMENT


permit. "Permission to build a residence anywhere within [the 8,500
acres of Westinghouse coastal lands in Half Moon Bay] is now worth
from $30,000 to $40,000. A coastal development permit, in other
words, is now worth roughly the same as a liquor license.""3 Although
these prices seem exceptionally high, one must not forget that the
coastal lands at issue have been declared by Congress356 and by Califor-
nia's legislature357 to have unique and irreplaceable value to present and
future generations. Indeed, private residential use occupies a low prior-
ity in the 1976 coastal policies.358 Coastal-dependent developments359
and facilities enhancing public opportunities for coastal recreation360 are
just two of the uses having higher priority. Hence, as the supply of
developable lands for private residential use decreases, it will not be
surprising to find that the demand for coastal development permission
will remain high enough to command even larger development permis-
sion fees. Further, one can defend the proposition that increasing the
costs of obtaining private residential development permission is a more
equitable apportionment of the costs of coastal planning and regulation
than imposing the costs on the general population through increased
taxes.
g) Acceptability D A coastal plan should be developed in a way
and presented in a form that inspires public confidence. It should
represent as nearly a consensus of the "public interest in the coast" as
reasonably possible when so many legitimate values are in competition.
The plan, in its totality, must have strong public support for its basic
aims and purposes if it is to serve its proper function.
To inspire confidence, the written policies and objectives must be
based upon an adequate understanding of the facts and be supported
by convincing scientific evidence. The plan should avoid unsupported
generalities.
Several critics of the California Coastal Commission believed that not
enough time was spent in developing an inventory of the natural
resources of the coastal zone, studying activities that are most
destructive to these resources, and the like. Such criticism was especially


355. Frazier telephone interview, supra note 170. Mr. Frazier did not estimate the components of
these figures.
356. See Federal Coastal Zone Management Act, 302, 303, 16 U.S.C. 1451, 1452 (1976).
357. 1976 CCA, supra note 2, 30001 (1977).
358. See generally id. 30200-30264 (1977 & Cum. Supp. 1978).
359. Id. 30255 (1977).
360. Id. 30220-30224.


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


prevalent in the northern Eureka area and the southern highly urban-
ized areas. John Lahr, the executive director of the North Coast
Regional Commission at Eureka, criticized the state commission for not
having "a proper orientation toward resource capability" and was
concerned that decisions were being made without proper understanding
of the facts. He cited a state background document on rivers and
streams that said "the salmon populations have declined over the past
30 years by 50 percent." That statistic, Lahr said, was true only for the
Sacramento River, while in the Mad River in northern California, the
salmon populations had gone up, "probably by 150 percent just by the
removal of a dam and the influx of a hatchery. It is now a major
recreational fishing stream and also a major fish producer."'61 Others
agreed that the commission often made decisions without knowing all
the relevant facts; however, as Joseph Bodovitz noted, "the back-
ground papers, among other things, were for the purpose of letting
local planners and officials check for errors" such as the one Lahr
noted.362 The state commission had a limited amount of money, and it
is hard to quarrel with the commission's judgment of how best to spend
it.363
Proposition 20 provided adequate latitude for meeting the criteria
discussed in this section. The plan was expressly required to "be based
upon detailed studies of all the factors that significantly affect the
coastal zone" and to be an "enforceable plan for the orderly, long-
range conservation and management of the natural resources of the
coastal zone."364
Some critics argued that the commission had not devoted enough
attention to the mandate that the plan "be based upon detailed
studies."'36 Celia Von der Muhll, of the Sierra Club, believed that
during the interim process there was too much "bargaining," resulting
in substantial commitments of resources that could have been pro-
tected, and that in the final plan, despite its strict mandate, the coastal
commission made too many political compromises. The legislature, she
believed, should have done the balancing of other factors; the coastal
commission should have been true to its mandate to protect the coastal


361. Lahr interview, supra note 140.
362. Smith interview, supra note 146; Crandall interview, supra note 68; Bodovitz telephone
interview, supra note 97.
363. Varanini interview, supra note 207.
364. 1972 CCZCA, supra note 3, 27301, 27001(b).
365. E.g., Crandall interview, supra note 68; Smith interview, supra note 146.


1978:647










COASTAL LAND MANAGEMENT


resources.366 Lorell Long, of the Energy Resources Conservation and
Development Commission staff, also believed that the environmental
thrust of the act was "watered down too much."'67
h) Purposefulness and likelihood of inspiring action and compliance
E0 A coastal plan should present an initial statement of objectives
and policies derived from an ongoing planning process-a process that
will continue to review and update the plan. The plan should be part of
an ongoing process that identifies problems and contains alternative
strategies for action. The American Law Institute's Model Land
Development Code, for example, contains a section for a "short-term
program of specific public actions to be undertaken within a period
stated in the Plan in order to achieve objectives, policies and standards
contained in the Plan."'36 The Code also suggests creation of a plan-
ning and research institute for long-range reflective study of needs
beyond current terms of office.369
The California legislature's acceptance of the coastal commission's
basic recommendations is the best evidence that the commission's work
was sound. The certification process, constant pressure from developers
for modifications, and the requirement of periodic review370 should
assure that California's coastal program remains up to date.
California's coastal plans-state, substate, or local-have the poten-
tiality of reflecting and reconciling the diverse cultural values of most
Californians. But whether California achieves this goal depends largely
on whether the preparation of local coastal programs (and the updating
of plans at all levels) includes enough broad-based and effective public
participation to prevent the system from being dominated by a profes-
sional administrative class influenced mostly by well-financed develop-
ment interests and those fortunate few who can afford and who are
willing to maintain a constant environmental vigil. Thus far, Califor-
nia's process has not been so dominated; Californians deserve highest
marks for the broad base of public support and interest in coastal
regulation. But California enjoys no inherent immunity, of course,
from the well-documented tendencies of regulatory systems to become
controlled by the group being regulated.


366. Von der Muhll interview, supra note 102.
367. Long interview, supra note 50. On balance, her evaluation of the commission was favor-
able.
368. ALI Code, supra note 70, 8-405(1), at 346.
369. Id. 8-601-02.
370. 1976 CCA, supra note 2, 30519.5 (1977).


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


B. Certification of Local Coastal Programs
The "policies" of the 1976 act are the standards for deciding interim
development requests and for measuring whether local coastal programs
conform to the state policies.37 California's coastal management pro-
gram ultimately delegates major coastal regulatory responsibilities to
local governments. First, though, a local government must get its local
coastal program certified.
"Local coastal program" is a word of art that is defined as a local
government's "land use plans, zoning ordinances, zoning district maps,
and implementing actions."72 Each local government is required to
prepare a local coastal program (or request the state commission to do
it) and, upon completion, submit it to the regional commission for
approval.373 The act then provides for submissions and appeals, in cer-
tain cases, to the state commission and for ultimate certification by the
state commission.374 All local programs are to be certified no later than
June 1, 1981."' Once a program is certified, subsequent amendments
must be reviewed and approved by the state commissioners.376
The 1976 act gives local governments wide latitude in designing their
local coastal programs. Although their programs must be "in
conformity with" the act's policies, "[t]he precise content of each local
coastal program shall be determined by the local government.""77 The
finally adopted act got favorable reviews from several local government
representatives.3'
California local governments have good reason to believe that they
have retained considerable autonomy in coastal land management. A
local government may submit its programs in three ways: (1) at one
time, (2) in two phases, or (3) in separate geographic units."' One of
the more crucial compromises in the coastal bill was the two-phase



371. Id. 30200.
372. Id. 30108.6.
373. Id. 30500, 30510.
374. Id. 30512-30513.
375. Id. 30501(b), as amended by ch. 1075, 1978 Laws, West's Calif. Legis. Serv. 1978 (if
prepared by local government, must be submitted by Jan. 1, 1981, or if prepared by state commis-
sion, must be certified not later than June 1, 1981).
376. Id. 30514.
377. Id. 30500(c).
378. Interview with David Beatty, Esq., League of California Cities, in Sacramento, Nov. 23,
1976 (very favorable); interview with Tim Leslie, principal legislative representative, County Super-
visors Association of California, in Sacramento, Nov. 22, 1976 (guardedly favorable).
379. 1976 CCA, supra note 2, 30511 (1977).


1978:647










COASTAL LAND MANAGEMENT


option, which allows a local government to submit first only its "land
use plan." Subsequently, it can submit its "zoning ordinances, zoning
district maps, and, if required, other implementing actions.""38
Local governments fought hard for this procedure, for good reason.
A local government's "land use plan," defined as "the relevant por-
tions of a local government's general plan, or local coastal element,"
must be certified as being in "conformity with" the 1976 act's
policies.8' But a "regional commission may only reject zoning ordi-
nances, zoning district maps, or other implementing actions on the
grounds that they do not conform with, or are inadequate to carry out,
the provisions of the certified land use plan."382 A local government's
land use plan will certainly be more detailed than the 1976 act's general
policies, but it will probably still be relatively general. Hence, the two-
phase process insures that the local government's own standards (that
is, the certified land use plan) will be the standards for measuring the
conformity of the more detailed zoning ordinances, zoning district
maps, or other implementing actions. Once the land use plan is certi-
fied, the state will find it more difficult to substitute its judgment on
details. In late 1978, Peter Douglas, deputy director of the state coastal
commission, said that the commission is well aware of this aspect of the
local coastal program certification process; accordingly, it is "reviewing
the land use plan portion with greater scrutiny and greater care."''3
The workload of the regional and state commissions may also con-
tribute to local autonomy. While Proposition 20 was in effect, the proc-
essing of applications for permits took the major part of commission
time. This regulatory function is continued in the 1976 act, and early
estimates show that, because of the larger geographical size of the
"coastal zone," the number of permit applications has roughly doubled
in all six regions.38 Since local coastal programs will be deemed certi-
fied by operation of law if not acted upon within a designated time
period,385 the regional and state commissions will have to be selective
about allocation of their certification time.


380. Id. 30511(b).
381. Id. 30108.5, 30512(c).
382. Id. 30513(a).
383. Telephone interview, Peter Douglas, deputy director, California Coastal Commission,
Chicago to Sacramento, Nov. 20, 1978.
384. Telephone interview, Peter Douglas, deputy director, California Coastal Commission, in
Sacramento, Apr. 15, 1977.
385. See, e.g., 1976 CCA, supra note 2, 30512(a) (1977).


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p-


736 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:647


Although this study has not undertaken to assess how the coastal
commission has allocated its certification resources, one report from the
San Mateo County area is worth noting, although, of course, it may be
an aberration. H. J. Frazier, president of Half Moon Bay Properties,
Inc.,386 believed that, as of November 1978, the commissions had main-
ly worked on the "noncontroversial," "show-case" local programs,
leaving the more difficult ones, such as the city of Half Moon Bay,
until last. This approach has resulted, for example, in San Mateo
County's "receiving $165,000 to plan for parts of the county that in-
clude only 6,000 people," while the city of Half Moon Bay (a part of
San Mateo County also having approximately 6,000 residents) is likely
to get less than "$25,000 to do a job that probably needs $120,000."
In late 1978, Frazier believed that "funding for certification [of local
coastal programs] is inadequate." The process, he suspected, had "run
out of steam because of inadequate funds at the local, regional, and
state levels." Frazier said that Proposition 13 was not the main cause
either. "Proposition 13," he argued, "is simply a forerunner of other
things; the glamor has worn off of bureaucratic programs." People are
"fed up." "Remember," Frazier cautioned, that "the coastal program
(that is, the process of drawing coastal plans) is now running into its
eighth year," yet "they are no closer to having a plan for Half Moon
Bay" than they ever were. In fact, Frazier argued, "they were farther
along two years ago."
Joseph Bodovitz answered that the Half Moon Bay area is "not
typical."387 The difficulty, he said, is that the developer bought inex-
pensive land in a prosperous recreational and prime agricultural area
and proposed to build a large residential development. But if Westing-
house were to achieve its total development goals, Bodovitz said, some
major public expenditures would be required. Scenic highway 1, a ma-
jor recreational route, would have to be widened in order to accom-
modate "commuters" to San Francisco. Then, Bodovitz explained, the
freeways would be overburdened at times of peak recreational use, and
the increase in residential development would result in "increased
assessments of the prime agricultural lands." Further, he emphasized
that the area "can take only so much density" because of limited water
supplies and other problems.38 Bodovitz suggested that Westinghouse,

386. Frazier telephone interview, supra note 170.
387. Bodovitz telephone interview, supra note 97.
388. See generally Thomas Dickert, Jens Sorensen, Rick Hyman, James Burke, Collaborative
Land-Use Planning for the Coastal Zone: Volume 2, Half Moon Bay Case Study, prepared under
the sponsorship of NOAA, Office of Sea Grant, Department of Commerce, Sea Grant Publication
no. 53 (Berkeley: Institute of Urban & Regional Development, University of California, 1976).









COASTAL LAND MANAGEMENT


like any other intelligent investor, would like to "buy low and sell
high." But Half Moon Bay presents significant "regional and statewide
issues." Hence, Bodovitz believed that the local coastal programs in the
Half Moon Bay area should be approved only after careful study, in-
cluding answering the question: "What are the public costs in building
the required roads, increasing the water supply, and losing the prime
agricultural land?"
State commission regulations on local coastal programs establish a
practical link between local planning law requirements and coastal act
requirements. Regulations encouraging common methodology, identifi-
cation of coastal issues, establishment of use priorities and other mat-
ters reflect mandates both of the 1976 act and the Federal Coastal Zone
Management Act of 1972 and its regulations.389 Special emphasis is
given to the importance of public participation in preparing coastal pro-
grams.39
Research for this article has not included a systematic study of the
local coastal program certification process; hence, I shall defer offering
a general assessment of how well the process is functioning. There is
some evidence, however, that there are problems. In addition to the
above criticism, Paul Sedway, the San Francisco urban planner, is
"concerned that the local coastal programs may not provide adequate
protection" for California's coastline.391 Part of the problem, he said,
is that "local governments and the state commission may not even be
talking the same language." Many local governmental officials and
planners are "still speaking zoning language," which, because of the
discretionary nature of the regulatory system may be causing problems.
Sedway suggested the need for a "much more detailed and flexible"
local regulatory system-one approach being what he called "building
block zoning." "The extraordinary flexibility of the building block ap-
proach," Sedway has written, "may return zoning to its status as a tool
for planners, rather than an encumbrance."392
American land planning law and practice will most likely be signifi-
cantly influenced by California's experiences during the late 1970s in
preparing and certifying local coastal programs. Traditional zoning,

389. California Coastal Commission Local Coastal Program Regulations (adopted May 17,
1977), in California Coastal EIS, supra note 293, at 5-1. See generally, for a discussion of the re-
quirements of the FCZMA, my article, The Federal Role, supra note 54, at 250-53 & nn. 428-48.
390. See 1976 CCA, supra note 2, 30006 (1977); Local Coastal Program Regulations, supra
note 389.
391. Telephone interview, San Francisco, Nov. 17, 1978.
392. Paul Sedway & Bonnie Loyd, Building Block Zoning Provides New Flexibility, 7 Practic-
ing Planner, vol. 7, no. 3, at 26, 29.



J


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


even as modified in recent years,39 will most likely prove inadequate
for meeting the requirement of a flexible administrative system able to
achieve protection and equitable allocation of the use of California's
coastal resources and yet providing ongoing responsiveness to ever-
changing knowledge of the nature of sensitive coastal resources and of
the public interest in the coastal zone.
C. Regulation Under the 1976 Coastal Act
1. Coastal Development Permits
After January 1, 1977, "any person wishing to perform or undertake
any development in the coastal zone shall obtain a coastal develop-
ment permit."394 If a person wishes to develop in an area where a local
government has received certification of its local coastal program, the
coastal development permit must be obtained from the local govern-
ment.395 In areas where the appropriate local government does not yet
have a certified program the act provides for interim development con-
trols similar to those established by the 1972 act, that is, the coastal
development permit must be obtained from a regional commission, and
if appealed, from the state commission.396 Although it was possible for
a local government to obtain certification to administer its own interim
regulatory program, only the city of Los Angeles elected this option.397
During the period prior to local certification, the performance stan-
dards and criteria of the 1976 act control.398 The 1976 policies are said
to embody three different types of performance standards:
(1) those dealing with any general development along the coast
anywhere (e.g., public access requirements, protection of environmentally
sensitive habitat areas, etc.);
(2) those dealing with a particular use or impact (e.g., marinas,
disposition of oil field brines, etc.); and
(3) those dealing with the protection of particular resources (e.g.,
wetlands, agricultural lands, etc.).399


393. See generally my article, Coastal Land Management: An Introduction, 1978 A.B.F.
Research J. 153, at 159-64.
394. 1976 CCA, supra note 2, 30600(a) (1977).
395. Id. 30600(d).
396. Id. 30600(c).
397. Id. 30600(b). Peter Douglas cited city of Los Angeles ordinance no. 151, approved Oct.
11, 1978. Douglas telephone interview, supra note 383.
398. 1976 CCA, supra note 2, 30604 (1977).
399. U.S., Department of Commerce, National Oceanic and Atmospheric Administration, Of-
fice of Coastal Zone Management & California Coastal Commission, Combined State of Califor-
nia Coastal Management Program and Revised Draft Environmental Impact Statement [1977].


1978:647










No. 4 COASTAL LAND MANAGEMENT 739


After local coastal programs are certified, local requirements will
control, with certain exceptions.400 Local coastal programs will have
translated the policies of the 1976 act into general plans, zoning district
maps, zoning ordinances and other implementing tools. Local programs
are likely to continue using a basic permit system as well.
2. Appeals
Prior to certification of a local coastal program, the 1976 act essen-
tially continues the Proposition 20 process, that is, regional commission
decisions are appealable to the state commission.401 After certification,
regional commission permits will no longer be required, and many local
decisions will be final. The following kinds of local development deci-
sions remain appealable, though, even after certification:
(1) Developments approved by the local government between the sea
and the first public road paralleling the sea or within 300 feet of the in-
land extent of any beach or of the mean high tide line of the sea where
there is no beach, whichever is the greater distance.
(2) Developments approved by the local government not included
within paragraph (1) of this subdivision located on tidelands, submerged
lands, public trust lands, within 100 feet of any wetland, estuary, stream,
or within 300 feet of the top of the seaward face of any coastal bluff.
(3) Developments approved by the local government not included
within paragraph (1) or (2) of this subdivision located in a sensitive
coastal resource area if the allegation on appeal is that the development
is not in conformity with the implementing actions of the certified local
coastal program.
(4) Any development approved by a coastal county that is not desig-
nated as the principal permitted use under the zoning ordinance or zon-
ing district map approved pursuant to Chapter 6 (commencing with Sec-
tion 30500).
(5) Any development which constitutes a major public works project
or a major energy facility.'02
Grounds for type-(1) appeals are limited to certain public use and
resource protection matters such as adequate physical access, protection
of public views, and protection of natural landforms.403 Type-(3)

400. The proposed development must be "in conformity with the certified local coastal pro-
gram." 1976 CCA, supra note 2, 30604(b) (1977). And every proposal, whether before or after
certification, "issued for any development between the nearest public road and the sea or the
shoreline of any body of water located within the coastal zone shall include a specific finding that
such development is in conformity with the public access and public recreation policies" of the
1976 act. Id. 30604(c).
401. Id. 30600(a), (c).
402. Id. 30603(a).
403. Id. 30603(b).










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


appeals are available only if the state commission has designated the
area in question a "sensitive coastal resource" area,404 the designation
of which also eventually requires legislative action.405
A hearing before a regional commission, or the state commission
upon appeal, is a "de novo public hearing."406 Judicial review of com-
mission decisions may be had upon petition of "any aggrieved per-
son."407

3. Nature of the California Coastal Commission
The 1976 act provided for a politically responsive body similar to that
created by Proposition 20 and required that at least one-half of the
initial appointments be members serving on November 30, 1976, in
order to provide "for a smooth transition and continuity."408 The state
commission consists of 15 members, 3 of whom-the secretary of the
Resources Agency, the secretary of the Business and Transportation
Agency, and the chairperson of the State Lands Commission-are non-
voting members.409 The 12 voting members consist of "[s]ix representa-
tives of the public" and, initially, "[s]ix representatives from the
regional commissions," to be succeeded, upon termination of the re-
gional commissions, by "county supervisors] or city councilperson[s]"
from coastal counties.410
The governor, the senate rules committee, and the speaker of the
assembly appoint the public members and local government officials;
the regional commissions appoint the regional representatives. All
appointments are "pleasure" appointments,41 with local officials serv-
ing only during their terms of office.412 Appointments are to be "good


404. Id. 30502, 30502.5. By late 1978, no "sensitive coastal resource" areas had been
designated. Douglas telephone interview, supra note 383.
405. Id. 30502.5. (Commission recommendation places the area in the "sensitive coastal
resource area category for no more than two years." To remain in that category, the area must be
designated by statute.)
406. Id. 30621.
407. Id. 30801. "[A]n 'aggrieved person' means any person who, in person or through a
representative, appeared at a public hearing of the commission, regional commission, local govern-
ment, or port governing body in connection with the decision or action appealed, or who, by
other appropriate means prior to a hearing, informed the commission, regional commission, local
government, or port governing body of the nature of his concerns or who for good cause was
unable to do either. 'Aggrieved person' includes the applicant for a permit and, in the case of an
approval of a local coastal program, the local government involved." Id.
408. Id. 30310.
409. Id. 30301.5.
410. Id. 30301(d), (e).
411. Id. 30312(b).
412. Id. 30312(a).


1978:647










No. 4 COASTAL LAND MANAGEMENT 741


faith efforts to assure that [they], as a whole, reflect, to the greatest ex-
tent feasible, the economic, social and geographic diversity of the
state."413
California's coastal management program provides for more than
just regulation pursuant to the police power. A State Coastal Conserv-
ancy414 has been established with broad powers to purchase, sell, and
lease interests in coastal lands, to recommend that the State Public
Works Board use the power of eminent domain, and to make grants
and loans for achieving purposes of the California Coastal Act of 1976.
The State Coastal Conservancy-consisting of the chairman of the
state coastal commission, the secretary of the Resources Agency, the
director of finance, and two members of the public appointed by the
governor-is given broad powers for achieving those goals of the
California Coastal Act that cannot adequately be achieved by exercise
of the police power. The conservancy will perform important functions
in promoting several general coastal policies, including protection of
agricultural lands, coastal restoration projects, coastal resource
enhancement projects, establishing resource protection zones, preserva-
tion of significant coastal resource areas, and establishing a system of
public accessways.
IV. CONCLUSIONS
California is creating the nation's most comprehensive coastal land
management system. The process, started in 1972 with citizens' ap-
proval of Proposition 20, continues with the implementation of the
California Coastal Act of 1976. This act continues an interim process of
planning and regulation, leading ultimately to a major regulatory role
for California's local governments. But a decade or so is likely to pass
before all the local coastal programs will be in effect.
California's coastal program illustrates how changing public percep-
tions of the value of a coastline can cause wholesale revisions of legal
institutions. This country's land use control system has long been
criticized as being too unprincipled. California's citizen-mandated 1972
program, although mainly a response to the "coastal crisis," also set in
motion a process to improve the whole of California's land manage-


413. Id. 30310(b).
414. State Coastal Conservancy, 31000-31406 (West 1977). Peter Douglas drew attention to
the "great potential" of the coastal conservancy, "including its power to aggregate inappropri-
ately subdivided lots," which the conservancy will implement on a "voluntary" basis, i.e.,
through "negotiated sales." Douglas telephone interview, supra note 383.










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


ment process. The program will undoubtedly have permanent effects on
California institutions,415 and its effects are likely to be felt in other
states as well.
State legislatures are the best forums for redesigning coastal land
management systems. They are better equipped than courts to enunciate
policies and to establish mechanisms for dispute resolution when major,
legitimate values are in competition. Proposition 20 served as an impor-
tant impetus for gaining the quality of legislative attention that is
reflected in the California Coastal Act of 1976.
Although state legislatures should establish the fundamental policies
on how coastal resources can be used, the interstices must be filled and
the details supplied by agencies acting pursuant to delegated power.
Here also, Proposition 20 provided the experiences that convinced the
1976 California legislature to continue to assert a strong state role in
coastal zone management through a politically responsive state commis-
sion but to modify the process in order that local governments could
perform substantial planning and regulatory roles in coastal land
management.
The delegation scheme of Proposition 20 was both constitutionally
sound and politically wise. Considering the new and complex problems
of coastal zone management and in view of the act's other protections
against administrative abuses, the controlling standards, while con-
tributing to a discretionary decision-making system, were adequate as
interim guidelines.416 This kind of discretionary decision-making system
is desirable, if not essential, in a field where concepts of the "public in-
terest" are changing so fast. Major coastal decisions pose critical
choices affecting the economic, social, and environmental interests of
citizens throughout the state. Choices of this type require decision-
making bodies with enough flexibility to respond to changing circum-
stances.
The broad discretion assigned to the California coastal commissions
does underscore, though, the value of delegating such discretionary
decisions to politically responsive bodies. This political responsiveness


415. In addition to the institutional effects discussed at notes 132-50 supra and text at same,
Peter Douglas emphasized how implementation of the coastal acts has affected state agencies and
local governments. "There is greater sensitivity to transjurisdictional impacts. State agencies
recognize the coastal agency as a permanent arm of state government." Consequently, Douglas
believes, it is now "much more likely that the delegation back to local governments will work."
Douglas telephone interview, supra note 383.
416. See notes 41-102 supra and text at same.


1978:647










No. 4 COASTAL LAND MANAGEMENT 743


was essential for the purely "legislative" questions before the commis-
sions, it was desirable for the "hybrid" questions, and it was defen-
sible, particularly during an interim process, for even the purely
adjudicativee" questions.417 The public visibility of the California com-
missions and certain features of the act provided adequate protection
against gross abuse of the delegated power.
California was also wise to assign the dual duties of preparing a
coastal plan and interim regulation to the same commissions. In the
early stages of policy formulation, it would have been unwise to split
these functions. Planning divorced from the day-to-day experiences of
resolving concrete controversies would not have achieved the degree of
general public understanding of the relevant issues nor have produced
as credible and useful a document as the 1975 California Coastal Plan.
A stronger case can be made for separating planning and regulation
once there is a relatively stable community consensus on policy prefer-
ences, and policies and standards are clearly defined. In such a
"mature" system, the adjudicative function can be better protected
from extraneous political factors than in the interim California process.
Proposition 20's design of decision-making bodies struck reasonable
balances in responding to all the "public interest" constituencies: local,
regional, and state representation was provided; consideration of com-
peting values and interests was promoted by providing for appointments
by the governor and by leaders of the two legislative branches; and the
appointed commissioners were likely to be politically responsive because
they served at the pleasure of their appointing power. The act was also
sound in allowing discretion in choosing among "generalists" and "ex-
perts." As a rule, "generalists" should be preferred over "experts,"
especially during the early stages of policy formulation.4" Persons of
broad experience and perspective should make the ultimate choices
among values.
The coastal commissions' informal hearings encouraged public parti-
cipation. Such hearings were particularly valuable for "legislative-type"
issues and were generally defensible even for adjudicative questions.
Formal, trial-like hearings might have intimidated the public, which
would have been particularly unfortunate during the early policy-formu-
lating stage. Arguably, though, the commissions should have provided


417. See notes 97-128 supra and text at same.
418. See notes 124-28 supra and text at same.










AMERICAN BAR FOUNDATION RESEARCH JOURNAL


an opportunity for a trial-like hearing for certain kinds of adjudicative
questions-particularly questions of exemptions and vested rights-even
during the interim phase of Proposition 20. The coastal commission's
first executive director argued strongly for the informality of the
California coastal commission hearings, suggesting that adjudication
"in the courts" was preferable if a formal process was thought neces-
sary.4'9 There is a preferable intermediate position, however, between
the informality of the citizen-commission hearing of the Proposition 20
type and the formality of court adjudication-an alternative that avoids
unnecessary resort to an already overburdened judicial system. A lay
commission might appoint a hearing examiner to conduct an ad-
judicative hearing and recommend a proposed order to the commission.
The ALI code, for example, provides for the appointment of hearing ex-
aminers to conduct certain hearings on proposed developments, the
code's commentary noting that this technique has already been
authorized in Florida, Hawaii, and Oregon.420
Although the interim regulatory process was not a moratorium, it
had that effect for certain kinds of development.421 A moratorium to
preserve planning options is supportable, for a reasonable period.422
Three years, if the maximum period, seems reasonable enough, given
the compelling legislative findings of Proposition 20. But California's
interim period could easily extend beyond 1981 because of the continu-
ing program, established under the California Coastal Act of 1976,
which calls for specification of policies and standards at the local level.
Certain kinds of development, then, may have to remain in limbo for
close to a decade. Though longer periods have been upheld, the impor-
tant question is whether a long period of uncertainty is good public
policy even if it meets minimal constitutional requirements.
Proposition 20's environmental, social, and economic effects are
difficult to assess. The act's implementation seemed to meet the reason-
able expectations of moderate environmental supporters. The program
fell short of the goals of those who wanted no compromises, but, on


419. Joseph Bodovitz explained, plausibly, that it was "unrealistic to expect a lay commission
[with its limited understanding of procedural rules] to conduct such a hearing," not to mention
the "amount of commission time" that such hearings would have absorbed. Bodovitz believed
that if an applicant felt such a procedure was necessary, the proper alternative was adjudication
"in the courts." Bodovitz telephone interview, supra note 97.
420. ALI code 8-205 and note at 325-26. I shall discuss Florida's experience with this process in
the next article in this series.
421. See notes 65-69 supra and text at same.
422. See notes 69-96 supra and text at same.


1978:647










No. 4 COASTAL LAND MANAGEMENT 745


balance, it should be considered successful in improving consideration
of environmental effects and the quality of coastal development. Its
social implications are just beginning to emerge. During the interim
regulatory phase, adequate attention was given to public access to
beaches and public accommodations. But the 1976 legislative debate
highlighted how volatile these issues can be. Economic effects were
impossible to assess within the scope of this study. Two effects do seem
clear: (1) while developable lands tended to increase in value, lands
where development permission was unobtainable or uncertain tended to
decrease in value, or at least not to increase as much as developable
lands,423 and (2) much of the decrease in economic activity in the 1,000
yard regulatory zone, especially development such as housing which was
not dependent on a coastal location, was probably accompanied by an
increase in activity beyond the zone. The second effect illustrates the
need for better coordination of coastal regulatory. programs with
statewide policies.
The difficulties in assessing the effects even from 1972 to 1977 make
it risky to conclude what the long-term implications of California's
development uncertainties may be. The "post-13" political climate
makes predictions riskier than ever.424 Some of the larger development
proposals, however, such as the Westinghouse project at Half Moon
Bay,425 do illuminate the importance of the "vested rights" issue and
the difficulties for major developers who have to expend funds for
long-range planning and community infrastructure without reasonable
assurance that they will be able to complete their projects. Although
major developers can, and probably will, wait for the period of uncer-
tainty to end, many smaller developers may be forced out of business.
Any program that leaves housing development uncertain needs careful
evaluation.


423. See notes 157-62 supra and text at same. Peter Douglas suggested that it is unclear
"whether lands decreased in value or simply stayed the same." Both Douglas and Joseph Bodovitz
argued that the "decrease" in Bodovitz's words, may simply have been the "squeezing out of the
speculative value." Douglas telephone interview, supra note 383, and Bodovitz telephone inter-
view, supra note 97.
424. See note 211 supra. Proposition 13, Peter Douglas believed, is "affecting planning in a
negative way." Douglas believed that the present trend "will have a significant impact on agen-
cies' ability to carry out state programs." He noted that on Nov. 8, 1978, the day after Governor
Brown's reelection, the governor directed that each agency make a "10 percent reduction in its
proposed budget." Also, he reported that Paul Gann, one of the co-sponsors of Proposition 13,
has proposed a new initiative that would place a "limit on state and local government spending,
keyed to the consumer price index."
425. See notes 170-92 supra and text at same.




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