California Coastal Commission Further Solidifies Enforcement Powers

Latham & Watkins LLP

An informal Attorney General advice letter and recent legislation attempt to clarify the Coastal Commission’s powers in carrying out its enforcement authority.

The extent of the California Coastal Commission’s legal authority to enforce violations of the California Coastal Act, and how the Commission may conduct enforcement proceedings, remain significant issues for developers and property owners in the Coastal Zone. Recent developments have both clarified and expanded the Commission’s authority in conducting enforcement proceedings. The California Attorney General has issued an advice letter that appears to solidify Commission staff’s long-held opinion that the Coastal Act does not allow “ex parte” communications in the context of enforcement proceedings. In addition, a new California law provides the Commission, for the first time in its nearly 40-year existence, the ability to impose monetary penalties for certain Coastal Act violations. These two developments arguably provide the Commission with additional power to pursue enforcement of the Coastal Act against developers or property owners.

Introduction -

One of the more difficult issues that alleged Coastal Act violators face during the enforcement process is Commission staff’s long-held opinion that the Coastal Act does not allow ex parte communications between the alleged violator and Commissioners once an enforcement proceeding has commenced. As a result, alleged violators have been limited to presenting their cases to Commissioners only at public hearings where time to rebut allegations can be limited. On August 15, 2014, an advice letter from the California Attorney General was presented to the Commission that concludes Commissioners may not engage in ex parte communications in the context of enforcement proceedings.1 While not law, this advice letter solidifies Commission staff’s position, and likely ensures that alleged violators will continue to be deprived of the opportunity to communicate with Commissioners outside of the public hearing process during enforcement proceedings — unless and until a judicial challenge or the California Legislature addresses this “procedure.”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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