You remember 1977, don't you? No? Well surely you must know the soundtrack. Sublime and deeply resonant music, accompanied by complex-yet-meaningful lyrics like these:
I'm your boogie man, that's what I am.
I'm here to do whatever I can.
Be it early morning, late afternoon.
Or at midnight, it's never too soon.
To wanna please you, to wanna keep you.
To wanna do it all, all for you.
I wanna be your, be your rubber ball.
I wanna be the one you love most of all, oh, yeah.
I'm your boogie man
I'm your boogie man, turn me on.
We dig it. After all, we there, tuning in on AM radio at a time when disco dominated, before it fell from grace and then became hip again.
Well dust off your 1977 vibes. The year Elvis left the building for good, when Star Wars was just "Star Wars" and not yet footnoted with "A New Hope," when Hutch (not Starsky) charted a Number 1 hit, when we all had a fever on Saturday Night (unless New York City lost power), and the word "shopaholic" first appeared in print -- could be back again.
At least if the California Supreme Court agrees to review a recently-filed Petition for Review in which coastal property owners are asking the court to bring some clarity to the California Coastal Act of 1976 (for that is its official name), which became effective in ... you guessed it, 1977. January 1 of that year to be precise.
In the petition, coastal property owners are asking the court to bring some clarity to a provision in the Coastal Act which requires approval of seawalls when they are required to protect "existing structures" (among other things):
30235. Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. Existing marine structures causing water stagnation contributing to pollution problems and fishkills should be phased out or upgraded where feasible.
Cal. Pub. Res. Code § 30235. Seems straightforward enough.
But what does this statute have to do with 1977, you ask? In this case, the question is what does "existing structure" mean -- existing at the time an owner seeks a Coastal Permit to protect a structure in danger of erosion? Makes sense, because one of the upfront purposes of the Coastal Act is to "protect ... private property."
Or does "existing structures" mean, as the Coastal Commission argues, only those structures "existing" at the time the Coastal Act went into effect, January 1, 1977? If you are asking whether the California Legislature really intend to freeze 1977 in amber, and allow the owners only of structures which existed on January 1 of that year to be protected as of right from allowing their property to fall into the ocean, you'd be like a lot of us asking the same thing. After all, "existing in 1977" is a pretty tough interpretation to swallow. But exactly what the Court of Appeal decided.
Here's the issue presented as framed by the Petition:
STATUTORY INTERPRETATION QUESTION OF FIRST IMPRESSION PRESENTED FOR REVIEWWhether the Coastal Act’s right to build a seawall to protect private or public property under Public Resources Code § 30235 is limited to structures that existed at the time that the Coastal Act was enacted on January 1, 1977, or extends to all structures “in danger from erosion”?The long and short of it is that even if the statutory language could be interpreted ambiguously (and what statutory language could not, if you worked hard enough to find ambiguity), then why doesn't one of the Coastal Act's primary purposes -- the "protection of private property" resolve any ambiguity in favor of protecting private property? Could the Legislature really only have meant in the Coastal Act's very first section to care only about then-existing private property?
It's right there, front-and-center in the Coastal Act: before getting to the part that most focus on when dealing with the Act -- favoring nonuse over everything else -- the legislature established the Act's foremost purposes:
The Legislature hereby finds and declares:
(a) That the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people and exists as a delicately balanced ecosystem.
(b) That the permanent protection of the state's natural and scenic resources is a paramount concern to present and future residents of the state and nation.
(c) That to promote the public safety, health, and welfare, and to protect public and private property, wildlife, marine fisheries, and other ocean resources, and the natural environment, it is necessary to protect the ecological balance of the coastal zone and prevent its deterioration and destruction.
(d) That existing developed uses, and future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state and especially to working persons employed within the coastal zone.
Cal. Pub. Res. Code. § 30001.
That's right folks, one of the paramount purposes of the California Coastal Act is to "protect ... private property."
Who knew? You almost certainly would not have guessed so if you were to skip reading the Act, and only look at the way the Act is interpreted and applied in this case and many others. Protecting private property doesn't seem to play a big role in how the coastalcrats (sorry, the California Coastal Commission) apply the statute.
Perhaps in this case, we shall see. Follow along here, or on the California Supreme Court's docket.
Hey, Coastal Commission, I'm your Boogie Man.