“The Devil’s Due” — Revisited

        One of the best modern commentaries on the law and realities of land-use to be found anywhere is the 1985 book The Zoning Game Revisited by Richard F. Babcock, the late dean of the nation’s land use bar and his associate, Charles L. Siemon, now a practicing attorney in Florida. 

          The book deals with several high-profile land-use controversies that pitted local NIMBYs against hapless land owners who attempted to build on their land. One of the stories told by Babcock and Siemon, is contained in a chapter entitled Sea Ranch, California: The Devil’s Due (pp. 235-254). It deals with the travails of Sea Ranch, probably the best, and certainly the most environmentally sensitive housing development in California, located on the Sonoma County coast (110 miles north of San Francisco). 

         To give you an idea what we mean by the most environmentally sensitive project, here is how Babcock and Siemon describe the developer’s approach. In addition to the usual planning that goes into a subdivision, it included a study of wind currents, the migration of whales, sea lions and abalone, and inventorying wildflowers, before tree specialists, geologists, architects and planners drew their plans. Babcock and Siemon describe the architecture as so-called “stove-pipe” or “mine shaft” modern – unobtrusive, earth colored buildings built far apart from each other, that blend into the landscape.  You can see color photos of them in an article by Patricia Leigh Brown, entitled Utopia By the Sea, N.Y. Times, Dec. 14, 2008, at p. 1 (Travel section), hereafter cited as “the Brown article.” If this subject is of interest to you, we urge that you get that issue of the New York Times, and see those color photos for yourself.

        But excellent or not, this is California, so as sure as God made little green apples, local NIMBYs opposed the project unless they could prevail on the developers to provide generous beach access. So the developers did – they dedicated 125 acres for a public park that would provide ample, half-mile frontage access to the beach. But, hey man, like we said, this is California, so naturally the NIMBYs declared that this generous gift wasn’t enough. They continued to oppose the Sea Ranch project, and after being turned down by the local Board of County Supervisors, they mounted an initiative election which they lost as well. So surely, you might think, that took care of things, right? Wrong. Enter the California Coastal Commission created in 1972 by initiative, and sold to the voters as a means of saving the California Coast – which sure sounded good. In fact, the Commission turned out to be the sort of outfit that tends to confuse the regulatory state police power with the power of a police state.  For a vivid example, see Healing v. California Coastal Commission, 27 Cal.Rptr.2d 758 (1994), a rare court decision chastizing the Commission for its treatment of a property owner who only tried to build a home for his family, and characterizing his ordeal as a 17-year-long nightmare.       

          What ensued was a lengthy process of Commission harassment of the buyers of Sea Ranch lots, who tried to build comparatively modest individual homes, a feat that was possible in those days, before California coastal residential land became the province of movie stars and assorted petro-sheiks. Nothing doing, ruled the Commission, and imposed a moratorium that would remain in place for years, until all sorts of absurd conditions were complied with. Such as, for example, cutting down many pine trees that the developer had planted. This was demanded ostensibly to protect the view of the ocean by folks driving on nearby picturesque State Highway 1. The problem with that, as Babcock and Siemon point out, was first, that you couldn’t see the ocean from the road anyway, and second, considering the notoriously sinuous nature of the winding State 1 highway, taking one’s eyes off the road while driving that stretch was near certain to result in a crash. The Brown article describes it as a “stomach-churning, acrophobia-inducing sliver of highway.” The commission also demanded control over height, siting, and bulk of the houses that could be built, and its decisions were frequently arbitrary and capricious, such as the imposition of a requirement that each septic tank leach fields be made extra long, and be backed up by a redundant, second leach field, which required elimination of a number of building sites.

        To get a feel for what went on there, you should read the Babcock and Siemon retelling of this sad story. To their everlasting shame, the state and federal courts in California failed to provide protection to the rights of the unfortunate Sea Ranch lot buyers. For a collection of citations to the reported court decisions, see endnote 1, at p. 292 of The Zoning Game Revisited. As Babcock and Siemon sum it up: “In California, the courts have elevated government arrogance to a fine art.” But eventually, the California legislature intervened and enacted a legislative compromise that provided token compensation to the lot owners and permitted construction, requiring “only” five access ways to the beach (in addition to the half-mile stretch of public beach in the park that the developers had already dedicated, and that for some strange reason didn’t count).

          So why did the Commission act this way? One answer is provided by Babcock and Siemon when they quote one of the actors in that battle who opined that the Commission functionary in charge “was going to beat Sea Ranch because it was the best-designed project along the coast. If he could lick Sea Ranch, he could beat any proposal.”

        So why rehash all that now? Because we just came across that New York Times article, whose author, Patricia Leigh Brown, waxes positively orgasmic in heaping praise on the aesthetics of Sea Ranch and praises its creators to the Heavens, dropping famous architects’ names like autumn leaves, and leaving no doubt that by the lights of the bien pensant architectural good-taste mavens, Sea Ranch is the ipsy-pipsiest cat’s pajamas of oceanfront homes. Says she, “Sea Ranch, a cluster of homes overlooking the Pacific, lifts the souls of design aficionados with its style forged by A-list architects and its deference to nature.” And this, in case you haven’t been attentive, is the very subdivision that was singled out by the Coastal Commission for especially harsh treatment, whose owners were harassed by the Commission, and whose construction was delayed for years because the Commission claimed that it  was environmentally “bad.” So if you wonder why so many people despise government regulators, and why courts are sliding down on the scale of public respect, here is a proverbial “Exhibit A.”

Follow-Up. If you want an insight into how the California Coastal Commission’s excesses have been abetted by California courts that neither see, nor hear, nor speak evil when it comes to the Commission’s doings, see Michael M. Berger, You Can’t Win ‘Em All — Or Can You? Cal. State Bar Jour., Feb. 1979, at p. 16.