Hat tip to Benjamin Rubin at the California Eminent Domain Report for writing up a recent opinion issued by the California Court of Appeal, Greene v. California Coastal Comm’n, No. B293301 (Oct. 9, 2019).

We won’t repeat his detailed analysis, but are posting the opinion here only to point out what we think is a critical flaw in the court’s ruling.  In sum, the court concluded that the California Coastal Commission was within its authority when it imposed a truncated setback as a condition of beachfront homeowners building an addition to their home. With what it concluded was substantial evidence to support the condition, the court affirmed. That part of the case really didn’t attract our attention that much.

What did get our spider sense tingling was the court’s ruling on the homeowners’ takings claim. They asserted that imposing the condition violated their right to just compensation. But the court didn’t address the merits of the claim, concluding instead that the plaintiffs had not exhausted their administrative remedies because they had not presented the takings issue to the Commission. California law, according to the court, requires an appellant to have presented “the ‘exact issue'” to the Commission in order to preserve it. After all, the Commission is entitled to notice that you think that their decision works a taking. The arguments the Greenes made before the Commission “did not give the Commission an opportunity to evaluate that issue.” Slip op. at  13.

But wait, this is both an appeal from an administrative (as they call them in California, a writ of administrative mandate), as well as an original jurisdiction complaint, right? See slip op.at 4 (“On May 5, 2017, the Greenes filed a petition for writ of administrative mandate and a complaint for declaratory and injunctive relief seeking to invalidate the five-foot setback condition.”) How does an agency (the CCC isn’t quite an executive branch agency as far as we can tell, but is one of those “fourth branch” hybrid agencies things) have any power to rule on issues of constitutional law? Especially its own actions? Only the courts may do that, so why is there any obligation for an administrative appellant to ask the agency itself not to act unconstitutionally? An agency’s authority is limited to applying its enabling statute and its rules to the facts presented, not to determine whether its own actions are constitutional or not. Separation of powers, anyone?

Benjamin’s post asks a good question:

As such, you may be wondering if the result would have been different had the homeowners filed their takings claim in federal court as opposed to state court.  With the uptick in federal takings claims following the Supreme Court’s decision in Knick, we will likely get a definitive answer to that question in the near future.

A valid point. Especially true, given that it is hornbook law that you don’t need to exhaust admin remedies in order to raise a § 1983 claim. The same reasons that animate that rule (the question of whether an agency has acted unconstitutionally isn’t something that the agency itself can rule on) you’d think would apply with equal force under California law.

Greene v. Cal. Coastal Comm’n, No. B293301 (Cal. Ct. App. Oct. 9, 2019)