Property Rights Foundation of America®

from PRFA's Twelfth Annual National Conference on Private Property Rights
Albany, N.Y., October 18, 2008

"Confronting the California Coastal Commission's Ultra-control of Local Communities"

Marshall Sayegh
President, Property Rights Foundation of Mendocino County

Greetings from California! Good afternoon members of the Property Rights Foundation.

When I began looking for answers to the property rights issues I was seeing in my home town I was fortunate to have met Carol LaGrasse and the PRFA. Carol spent her valuable time coaching and encouraging me as I faced various issues. With Carol though, maybe I should use the word "engagement." Asking Carol LaGrasse for advice is not a conversation; it is an engagement. She won't let you off the hook and if you are not as sincere as she is in the cause then why bother?

Using the PRFA as a model, members of my community established the Property Rights Foundation of Mendocino County. This is a totally separate group from PRFA.

We produced our first newsletter last August and I encourage you to take a look at it. If you want to get a taste for small town planning and zoning issues I also brought copies of our local paper, the Independent Coast Observer.

Carol, thank you for your guidance and inspiration.

Our little town is going through enormous changes. For a small place such as Gualala that doesn't take much. But you may want to consider the old saying "as Gualala goes so does the country."

In our case there's been a lot of planning and pencil pushing going on over the past several years. Our first newsletter —Mendocino Property Rights — talks about sidewalks, bike lanes, streetlights, crosswalks, sewer districts, streetscape planning and ocean view protection and more. And our local paper has it as front page news.

Gualala's issues are simple compared to the rest of the country. I suggest to all of you that if we cannot find a way to help Gualala then the rest of the nation is in dire straits. If this isn't the other side of planning I don't know what is. Carol did a great job with the title of this year's conference. May I suggest the subtitle might be "We all want the best for our communities."

Should I try to completely cover the topic Carol has asked me to speak about, we could be here for a long time, time we don't have. And since I am not an attorney I can't break out all the legalities of the California Coastal Commission either.

However, I can tell you one story of how you can lose your liberties to ultra-controlled zoning decisions and how difficult it is to try to get those liberties back. Let me start with a bit of background.

For over 15 years my wife Terri and I have lived in Gualala, California which sits directly on Highway One perched on the bluffs overlooking the Gualala River and Pacific Ocean. It's in an unincorporated area about 100 miles above San Francisco. I hear the words "isolated and beautiful" used by many visitors.

Our County Building and Planning Department takes care of zoning and building permits. The chief planner is designated the local Coastal Plan Permit administrator. From firsthand experience I can tell you they are knowledgeable, communicative and capable in spite of the fact they are tasked with enforcing some of the most restrictive and combative building and zoning issues in the country.

The commercial area that most people consider Gualala is about a mile in length and has well over 100 businesses. Many of those businesses and property owners contributed to make my trip here possible. I can't thank them enough for the faith they have expressed in me.

Just to the South of Gualala in Sonoma County lies a private development called The Sea Ranch.

The Sea Ranch development is largely responsible for creating the current political and zoning issues along California's coastline. The plan by its owners to shut off public access to 10 miles of Sonoma Coast in the early seventies prompted environmentalists to put Proposition 20 before the California voters, which eventually spawned the California Coastal Act and the Coastal Commission. Part of this agreement is that the Coastal Commission has no jurisdiction over The Sea Ranch development.

The Coastal Zone in California is the size of New Jersey with approximately 1,150 miles of coastline.

The commission is an independent, quasi-judicial state agency. The commission is composed of twelve voting members, appointed equally (four each) by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. Six of the voting commissioners are locally elected officials and six are appointed from the public at large. Three ex officio (non-voting) members represent the Resources Agency, the Business, Transportation and Housing Agency, and the State Lands Commission.

The California Coastal Act — the statute that authorizes and defines the Coastal Commission's powers — recognizes that local coastal permitting decisions should, whenever possible, be left to local governments in order to "achieve maximum responsiveness to local conditions." To that end, the act allows local governments to adopt their own coastal program, which is certified by the commission.

Gualala has a Coastal Development Plan approved by both the County of Mendocino and the California Coastal Commission. It took over ten years to complete and was codified in 1999. When a local government has a certified Coastal Development Plan, as Gualala has, the commission has only very limited appellate jurisdiction.

Supposedly, this element grants control to the local community over planning decisions.

OK. Enough background, I think you have the picture.

Has anyone here heard or read about the little town on the California coast whose commercial fireworks display was being shut down due to disturbance of birds? A show of hands? There were articles published in The New York Times, Associated Press, and news interviews aired on national TV. Well, that was us……let me tell ya about it.

Up and down the California coast there are Independence Day celebrations and fireworks displays. Many of them are located directly within wildlife refuges and preserves such as the Monterey Bay Marine Sanctuary, San Francisco Bay, Santa Cruz, Santa Barbara, San Diego Bay and Humboldt Bay. In San Diego Bay there are four barges packed with fireworks and over 500,000 people attend according to the Port of Sand Diego website. None of these displays are considered "development" and therefore are not required to apply for a permit from the California Coastal Commission.

Obviously many people appreciate getting access to coastal areas in order to view fireworks. This is an aspect of the Coastal Commission's rulings that are confusing. The Coastal Commission is charged with insuring and encouraging access to California coastal areas. I suggest to you that attracting 500,000 people to the coast fulfills that charge.

In addition many annual displays up and down the coast — while not nearly as famous — are none the less well attended and popular.

There has been a fireworks display attended by 3 to 4,000 people just fifteen miles up the coast from Gualala in Point Arena for almost twenty years. No Coastal Development Permit required there.

There is another display 47 miles South of Gualala in Bodega Bay. You remember Bodega Bay don't you? That was the location for the Alfred Hitchcock's movie "The Birds." It's within yelling distance of the University of California Bodega Marine Laboratory. No Coastal Development Permit required there either.

These displays occur directly on the coast. None have ever required a Coastal Development Permit.

When it comes to a fireworks display, obviously local zoning plays a part here as well. You can't just shoot 'em off anywhere. If you are in a city or municipality there may be restrictions about where one can discharge fireworks. And, in many communities in California personal fireworks are banned by zoning ordinances due to the high fire danger. A good zoning move if you ask me.

By the way, according to a twelve-year study by the Monterey Bay Marine Sanctuary the best way to reduce fire hazards is to launch fireworks from the coast over the water. That same study concluded that there are no harmful effects from an occasional fireworks display over water.

The only time the California Coastal Commission acted to regulate fireworks was when the San Diego Marine World proposed to launch fireworks displays almost every night. But even then the Coastal Commission deferred to the California Water Resources Control Board to determine if debris from a fireworks show polluted the water. Years of study found that fireworks did not have any effects on water quality.

With that in mind, five years ago a small group of citizens in Gualala named the Gualala Festivals Committee wanted to determine if our local community would want a fireworks display for the Fourth of July. Hiring a commercial fireworks company was not taken lightly. It would cost over $10,000.

We distributed petitions to local merchants and within a week had close to 900 signatures advocating for the fireworks. Not bad for a town with a census population of around 2,000. We made sure that our plans would not interfere with our neighbor's displays. We planned our event on a different night.

We began raising money and within a few weeks had financial commitments for the fireworks.

In 2006 we proposed using an empty parking lot in Mendocino County to launch Gualala's Fireworks. We checked with our Mendocino County Planning Department, which is our Coastal Commission Authority. When they determined we were not charging the public and it was to be launched from private property, they made the decision that no additional permit was needed. By 3 PM on the day of the display there were people gathering for the 9 PM show. By the time of the event 3,000 people lined the streets of our little town. It was a record crowd.

There was not a restaurant table available in the entire town that night. Every lodging establishment was full. People lined the streets. The real fireworks were in the eyes of the children. To put it mildly, it was a huge success and I am proud to have been a part of it. It is a tradition that we enjoy and one that bonds us as a community.

In 2007 we again planned fireworks. Again we applied for our Fire Permit. Again we got our permit, and raised the money for the show.

A week before the show we got a letter from the Coastal Commission stating we "may need a Coastal Development Permit." A local attorney — the former District Attorney for our County — researched the relevant laws, checked with the local authorities and responded to the Commission.

This time over 4,000 showed up. I believed that attracting people to the California Coast to observe an Independence Day celebration was the perfect dovetail for the Coastal Commission goals. I couldn't have been more wrong.

Last year, a group of people complained that the display was disturbing nesting birds on a newly established Bureau of Land Management-controlled rock.

Now before I go any further let's get something straight. There is a lawful distinction between what constitutes a disturbance and what constitutes harassment.

When you start your lawn mower and the birds fly away — that is considered a disturbance. When you load your shotgun and fire it at the birds — that is harassment. Keep in mind a disturbance is legal and harassment is not.

That rock is over a mile away from the fireworks launch point. None of the birds nesting on this rock are endangered or threatened. We pointed the fireworks away from the rock. The display could not be seen directly from the rock, nor was the sound much louder than the waves hitting the rock — according to the observers.

Nevertheless, the Coastal Commission began investigating the purported effects of fireworks on the birds. The 2007 display went on while this was occurring.

In December, 2007, the Commission held a hearing on the potential adverse effects of the fireworks; it concluded with a commissioner asking Executive Director Peter Douglas if the 2008 Gualala display would be stopped if there was no coastal development permit, and Douglas vowed he would soon issue a cease-and-desist order requiring a coastal development permit. His basis for such action is that a fireworks display is "development" within the meaning of the Coastal Act and therefore needs a development permit. The Coastal Commission accepted Douglas' theory, and it issued a cease-and-desist order on June 11.

Unlike a normal Court that requires proof of damage, the California Coastal Commission's Executive Director can issue a cease and desist order without the purview of a court. And it can be considered permanent until a State Court, in a separate action, nullifies it or the Commission rescinds it.

The July 4, 2008 display did not occur, to the disappointment of thousands. However one group in particular not only applauded the Coastal Commission but gave them an award!

On July 8, 2008 People for the Ethical Treatment of Animals (PETA) awarded the California Coastal Commission its "Compassion in Action Award" for the ban and encouraged a nationwide ban of fireworks on Independence Day because according to (PETA), "Fireworks displays are disastrous for wildlife. Besides being frightening, fireworks produce smoke plumes, which are harmful to animals' respiratory systems and pollute standing water."

As you can imagine, Gualala was an empty town this Fourth of July. There was nothing to see. On July Fourth night there were rooms still available, and the restaurants that were so popular the year before were empty. The year 2008's lack of visitors proved that the previous displays fostered public use and enjoyment of our area of the coast. To be honest I felt our little committee deserved an award, not a cease and desist order! We could barely raise the money for the fireworks. How could we possibly defend ourselves?

Enter the Pacific Legal Foundation. If it were not for the PLF I would not be here today discussing our fireworks fight. There would not be a fight without their support. PLF now represents the Gualala Festivals Committee in a lawsuit against the Coastal Commission. The suit challenges the Coastal Commission's jurisdiction over a fireworks display as a development.

The case is of statewide interest. According to our lead attorney Paul Beard, the Coastal Commission's attempt to micromanage Gualala's Fourth of July celebrations has implications for coastal fireworks displays from one end of the California coast to the other. Add PETA's demand for a nationwide ban and your Independence Day celebrations may be at risk as well.

If the Commission recognizes no principled limit on what can be classified as 'development,' absurd results will follow. Driving a car, camping, and picnicking, sunbathing, surfing, swimming, breathing, or just being in the coastal zone would all require applications for a development permit, or a request for an exemption. The California legislature could not have envisioned such absurd results.

The Gualala Festivals Committee is scheduled to begin its litigation in December. In lawsuits brought by PLF, courts have consistently slapped down the Commission for going far beyond its legal authority. I am hopeful for the same result in this case.

Finally; I would like to thank Paul Beard of the Pacific Legal Foundation, Carol LaGrasse, PRFA, members of the Gualala Festivals Committee, as well as the Property Rights Foundation of Mendocino County. Most importantly, the never ending love of my wife Terri, without whose support this trip could never have happened.

I would like to leave you with a quote from Winston Churchill who said: "We must take change by the hand or rest assuredly; change will take us by the throat."

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