MEN AND WOMEN who grew up under the world’s cruelest governments are different from the rest of us.
Americans are lucky. Even those of us who regularly sue the U.S. government will admit how lucky we are: In America, we can hold up our Founding documents—even shake them in the government’s face—and say, “Here it says I was born with the right to life, liberty, and the pursuit of happiness. The government exists to secure my rights. It works for me.” Our earliest constitutional amendments are devoted to prohibiting certain government actions. And most of us have never known life without these protections.
People who’ve experienced totalitarianism are more wary of government. They’ve seen what it is capable of doing.
Viktoria Consiglio was like that. Viktoria grew up in Germany under Hitler’s reign. Her mother was Jewish. Her father was terrified for their family. The Consiglios’ own government was imprisoning, stealing from, and killing people just like them.
In 1956, the family finally managed to leave Germany for America. The United States had “the best Constitution in the world,” Viktoria’s father told her. By the 1970s, Viktoria had a comfortable, middle-class life in California. She worked as a bookkeeper; her husband was a pipefitter. Their decision to settle in California pleased Viktoria’s father: It was a place where people seemed to flourish.
When Viktoria’s father died, he left Viktoria everything—including money for her to set down real roots on the California coast. In November 1976, Viktoria used her inheritance to buy a two-acre plot of land just south of Carmel. The land overlooked the Pacific Ocean. There, she and her husband could build a modest home for themselves—the kind of home Viktoria’s father would have wanted for her, a place where she’d always feel comfortable, safe, and free.
1976 WAS THE same year Governor Jerry Brown signed the California Coastal Act. The bill endowed the new California Coastal Commission with extraordinary regulatory power over the state’s 1.5 million acres of coastal land. Nothing could be done on the land without the commission’s express permission
Brown seemed to quickly regret giving the commission so much authority: By 1978, he was openly calling the commissioners “bureaucratic thugs.” The commission “wrapped its tentacles around everything,” The Wall Street Journal later complained. It was “a perfect example of well-meaning liberalism gone terribly awry.”
Viktoria already had a County-issued building permit to start construction on a 1,000-square-foot home on her land. But she now needed the California Coastal Commission to sign off.
The commission denied Viktoria’s permit request. There was no ecological rationale for the denial, no practical reason why a home couldn’t be built on the land. Instead, the commission said it wanted to keep the land free of any structure that would block motorists’ fleeting view of the ocean as they drove down the nearby highway. The Consiglios’ planned home—for which they’d hoped to do much of the wiring and carpentry themselves—wasn’t sufficiently “subordinate to the character of its setting,” the commission said.
Meanwhile, 18 of the 27 plots surrounding Viktoria’s empty land already had houses sitting on them. One of Viktoria’s neighbors had gotten his building permit approved, but at a cost: He’d agreed to hand over a chunk of his land to the California Coastal Commission.
Viktoria resisted pressure to make the same concession. Her land represented her father’s entire life savings and his dream for her future. She couldn’t stomach giving up part of that land to the government under coercion. That wasn’t what her family had come to America for, or why her father had bequeathed his life savings to her. She’d bought the land, fair and square. Why shouldn’t she be able to build a small home on it?
THE CALIFORNIA COASTAL COMMISSION’S power grab came at a difficult moment for property rights in America.
In an influential 1971 article in The Yale Law Journal, law professor Joseph Sax declared a “need for a reconsideration of the notion of property rights.” The public had rights that extended onto otherwise-private property, Sax argued. He urged courts to recognize the “interconnectedness” of various property uses, which defied lot lines and boundaries. What a homeowner did with his private property was no longer just for him to decide, according to Sax; it was part of a network of overlapping activities that required government oversight—and restriction.
It was an unsettling perspective that elevated amorphous community interests—like, say, a motorist’s interest in seeing the ocean for a few seconds as he zipped along a highway—above the personal right to improve one’s own property. Sax suggested ways the government could use its police power to exert control over private land without having to pay just compensation to property owners.
This new way of thinking about property rights aligned nicely with the 1970s push for increased environmental and land use regulation. The government could now advance public causes by controlling the use of private land—sometimes to the point of prohibiting virtually all use by the actual landowners.
Staff at the California Coastal Commission recognized they were bumping up against a foundational American right: the right to acquire and use property. According to Jefferson Decker’s book, The Other Rights Revolution, early memos from commission staffers questioned “the absence of a precise standard” or “firm dividing line” separating legal regulation from an unconstitutional violation of private property rights. The commission knew that it was treading on questionable ground.
For Americans, the ability to build a home on your own land is indelible; it’s part of the stories we tell, what we work toward, and how we measure our independence. “Property is surely a right of mankind as really as liberty,” John Adams wrote in 1787. Since our founding, homeownership has always been a mark of success, especially for immigrants who’ve made their way westward to start a new life. Building a home is both a sign that you’re actively shaping your own destiny and a marker to all that you’ve laid down your own roots in a free country.
WHEN IT BECAME CLEAR to Viktoria that the California Coastal Commission wasn’t going to budge—despite any internal doubt about the constitutionality of its actions, the commission was driving full steam ahead to block housing on land like Viktoria’s—she came to a hard decision. If the commission wanted the land that badly, she’d simply sell the commission her land. That would mean giving up her beautiful coastal plot, but at least the government would probably give her a fair price for it.
Begrudgingly, Viktoria offered to sell her land to the commission for use as a reserve.
The commission refused.
Here was the awful truth about the California Coastal Commission: It wanted to keep the land empty for the public, but it didn’t want to pay for the land. The commission wanted private property owners to bear the full financial burden of the state’s decisions. The approach was all stick, no carrot. The commission had the power of the state behind it. What possible recourse could property owners have?
PACIFIC LEGAL FOUNDATION HAD been around for only five years when, in 1978, Viktoria Consiglio came to the firm with her story. PLF attorneys were eager to help Viktoria sue the commission. It was “just the kind of lawsuit the Pacific Legal Foundation likes, a defense of property rights against government interference,” The Western Law Journal reported.
Begrudgingly, Viktoria offered to sell her land to the commission for use as a reserve.
PLF began pursuing Viktoria’s case on two fronts: the courts and the media.
“My father was so relieved that I was making my home in California that he left me his life savings to buy a lot near the ocean,” Viktoria told Hayward Review in a 1980 interview arranged by PLF. “What happened to the American Dream? What happened to the freedom of little property owners like me? What happened to the Constitution I swore to uphold when I became a citizen?”
Reason Magazine slammed California: “The state has decided it likes the view from the Consiglios’ property—but not enough to buy the property to keep as a wilderness area.”
Even the Los Angeles Times was on Viktoria’s side. “It is hard to imagine any plight worse than that of Viktoria Consiglio, a Seaside bookkeeper, and her husband, a Civil Service pipefitter,” the newspaper declared.
Meanwhile, the commission was playing hardball in court. By 1980, the California Coastal Commission had over 200 employees and an annual budget of $10 million. It could afford to drag on litigation for years. That was how the state chose to spend its money—not by compensating property owners, but by beating down anyone who pushed back against its bullying.
The Result of the Case…
BY 1982, VIKTORIA HAD HAD ENOUGH.
Her property, which she’d bought six years earlier, was just sitting empty. She and her husband weren’t wealthy. They’d been paying property taxes on land the state wouldn’t let them use. They needed to move on.
Viktoria and her husband decided to give up and sell their land for whatever they could get. It was a disappointing end to their fight.
But elsewhere in California, another homeowner had been reading about the Consiglios’ lawsuit.
Patrick Nollan had already signed an agreement to give up a third of his oceanfront property in exchange for a California Coastal Commission permit when he read about the Consiglios’ lawsuit and learned about Pacific Legal Foundation.
In 1982, the same year the Consiglios were forced to give up their land, Pat Nollan spoke to PLF attorneys on the phone. Then he went to the county office, asked to see the permit agreement he’d signed, and quickly tore it up. PLF was going to take up Pat’s fight.
In 1987, Pat and PLF won their case against the California Coastal Commission at the United States Supreme Court. What started with Viktoria in 1978 was finally finished by Pat a decade later—and Viktoria’s faith in the U.S. Constitution is vindicated by cases PLF continues to win to this day.