Development Industry Appeal Wins Round

The five trade associations are the Building Industry Association of San Diego, California Building Industry Association, Building Industry Legal Defense Foundation, California Association of Realtors and Home Builders Association of Northern California. They filed an amicus curiae brief in the case of Marine Forests Society V California Coastal Commission, in which they claimed the structure of the Coastal Commission violates the separation of powers doctrine of the California Constitution.

The California Court of Appeals, it seems, holds the same opinion. In a 29-page unanimous opinion handed down Monday, the court upheld the original verdict against the Coastal Commission. "We conclude that the appointment structure giving the Senate Committee on Rules and the Speaker of the Assembly the power not only to appoint a majority of the Commission's voting members but also to remove them at will contravenes the separation of powers clause of California's Constitution," the opinion reads.

The Coastal Commission now has the option to file a petition for review with the California Supreme Court. If the Supreme Court rejects the case or upholds the earlier verdicts, Monday's ruling could have a significant impact on the development community.

"It would throw into question many of the activities that the Coastal Commission has been engaged in over the past several decades," says Tom Roth, of Sheppard, Mullin, Richter & Hampton LLP's Real Estate, Land Use, Natural Resources & Environment Practice Group in San Francisco. The law firm filed the brief on behalf of the five real estate trade organizations.

Roth tells GlobeSt.com that some of the commission's powers, such as its ability to hear appeals of coastal development permits issued by local governments may be taken away if the commission is indeed restructured. Changes such as these would make the development process "more rational and more predictable," Roth says, adding that "local jurisdictions tend to be more accountable because they have to balance competing concerns.