III. Brownstein Hyatt
i Farber Schreck
February 15, 2013
Susan F. Petrovich
Attorney at Law
805.882.1405 tel
805.965.4333 fax
[email protected]
VIA EMAIL [email protected] and [email protected]·
BARBARA.CA.US
Members of the GavPAC
David Lackie
Brian Tetley
County of Santa Barbara
Planning & Development
Long Range Planning
123 East Anapamu Street
Santa Barbara, CA 93101
RE:
Trails Section of Draft Gaviota Coast Plan
Dear Honorable Members of the GavPAC, David and Brian:
I look forward to a lively discussion of the staff's suggestions regarding the Trails Section of the
Draft Gaviota Coast, Plan. This letter provides my comments in response to the most recent
materials posted on the GavPAC website.
First, I again beg the Plan writers to observe the basic grammatical rules that I have explained in '
my earlier letters, particularly regarding the use of the term "comprised of' (the verb comprise is a
synonym for "include" and should be used accordingly; there is no proper way to use "comprised
of" anymore than it would be proper to say "included of') and the distinction between
"complimentary" and "complementary." See Page 2 of my December 28, 2012 letter commenting
on an earlier draft of Chapters 3, 5 and 7 for a full explanation of how to determine in which
context each word belongs.
Second, I ask that the GavPAC reject the staff's proposal for a bluff top trail and hold true to its
prior determinations as to the appropriate siting of the Coastal Trail on Las Varas/Edwards
ranches and on other properties within the Plan area. Arguments that the Coastal Commission
staff won't like the GavPAC's determinations are specious. By law, the Coastal Commission
. must certify a local agency's proposed LCP amendments if those amendments are consistent
with the Coastal Act. Period. The fact that the Coastal Commission staff will put up a fight is no
reason for the County and its citizens to waive their rights under the Coastal Act. The County
doesn't allow intimidation to dissuade it from enforcing laws and ordinances against property
owners so why would the GavPAC accept a threat of possible resistance by a State agency as
grounds for capitulation in anticipation that the State agency might act contrary to law? That just
doesn't make sense. Neither does putting trails on the Plan's PRT that conflict with Coastal Act,
21 East Carrillo Street
Santa Barbara, CA 93101-2706
main 805.963.7000
bllfs.com
Brownstein Hyatt Farber Schreck, LLP
Mr. David Lackie
February 15, 2013
Page 2
County LCP and Gaviota Coast Plan policies for the protection and preservation of agriculture.
See the attached excerpts from Nol/an v. California Coastal Commission for further information
regarding trail exactions and their constitutionality or lack thereof.
Now to the specifics.
General Comments
The text of the draft Plan acknowledges that the GavPAC worked arduously to balance diverse
viewpoints and, in the case of trails, to balance recreational objective with private property rights,
private property owners' security and privacy, and the needs of agricultural operations. Certain of
the proposed trail policies conflict with the Plan text in this regard. Those policies should be
rejected or significantly modified. Otherwise, the Plan will be internally inconsistent.
During the GavPAC's February 13, 2013 hearing, I passed out excerpts from the Agricultural
Element addressing trails in agricultural lands and a compilation, entitled "A Balanced Beach
Access Proposal," that includes Coastal Act and Coastal Trails Act provisions (the complete text
of the Coastal Trails Act is attached at the back of this handout). These are the only statutes
applicable to trail siting in the Coastal Zone. Publications from the California Coastal
Conservancy and other agencies are not the law. Attached to this letter are excerpts from the
United States Supreme Court's decision in Nollan v. California Coastal Commission (1987) 483
U.S. 825. I provide these documents because I will reference them in my testimony on the Trails
Section, but also for the GavPAC's information as it considers the staff's proposals for modifying
prior GavPAC decisions or for creating new policies that are inconsistent with statutory and case
law.
As I have mentioned in prior letters, where an existing LCP policy, which applies throughout the
Coastal Zone within the County, already addresses an issue, it is inappropriate to include that
policy in this document unless you include ALL existing LCP policies on the subject. I presume
that this Plan is not intended to replace the LCP so I propose that no LCP policies be included
here. They already apply - in the Coastal Zone. If they become part of the Plan, they apply in
the inland areas as well and this creates an undesirable precedent or inconsistencies with the
Comprehensive Plan, which already applies to the inland areas. Coastal Zone policies are
appropriate in the Coastal Zone. Any departure from that general rule should be considered
strictly on a case by case basis and with care to avoid inconsistencies. Likewise, it is
inappropriate to propose policies that either conflict with an existing LCP policy or appear to
supersede existing LCP policies unless that is the intent - to modify the LCP to supersede
existing policy. Otherwise, it creates ambiguity and internal inconsistencies within the County's
eXisting policies.
Parks, Recreation and Trails
P. 4-2 - add links within this table.
P. 4-3, Planning Issues Para. a, add at the end "and agriculture." Also, please explain in this
paragraph what the Plan does to encourage this planning balance.
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P. 4-4, first full paragraph - this text is directly counter to the trail location specified for Las
Varas/Edwards, which goes right through productive agriculture. Even as suggested by the
GavPAC, this trail location interferes with agriculture because it goes through the heart of the ag
operation. If the designated trail were located where the owner offered, it would not interfere with
agriculture. As the staff maps it, the trail completely disregards the needs of agriculture, sensitive
biological resources, and the owner's security, privacy, and private property rights.
P. 4-4, Recreational Trails, first paragraph is a joke in light of the staff's trail proposals.
P. 4-5, bullets at top - ditto. Furthermore, most of the trail locations shown on the proposed trails
map are not prioritized to be on public lands. If they were, they would largely be within the
Caltrans right of way. The Coastal Trails Act urges State agencies to work together to use public
lands for trails purposes, yet Caltrans right of way and old County road right of way (the frontage
roads) are not included as trail segments on this Plan. So much for prioritizing pursuant to a
statutory directive. Staff's trail locations prioritize the locations on the most sensitive parts of
private property. That is directly inconsistent with the Plan text.
P. 4-5, bullets at top -- the last of these bullets calls for providing necessary infrastructure,
maintenance, and trail management, but other than a casual reference in the Plan, there is
absolutely no emphasis upon these vital elements to the long-term success of the trail system,
particularly as trail use intensifies with population growth. This is not an urban or suburban area
where people can walk or travel a short distance from the urban infrastructure, then spend a
couple of hours on the trail and likely not have to respond to the call of nature before returning to
the urban/suburban areas. These trails take people into remote areas, but largely on private
property, with no serious planning for, or standards that prohibit opening a trail without first
providing, basic sanitary infrastructure. The Plan gives no serious attention to a monitoring
program to ensure that erosion, biological degradation, property damage, and the like are
controlled and trails closed if they cannot be controlled and prevented. The (largely) agricultural
landowners will be left to deal with the trash, human waste, trespass, cut fences, trail erosion and
resulting silt or expanding headcuts, and the like.
P. 4-6, first full paragraph - why is the overlay approach being abandoned? The approach is far
more practical, for those properties to which the GavPAC applied it, in the long-range planning
horizon because it allows for trail location that will "respect private property rights in trail planning
and acquisition." (quote from the bullets at the top of Page 4-5)
P. 4-8, numbered list of "general principles" - # 2 seems directly contrary to the GavPAC's trail
designations, which are not confined to bluff-top, or to the GavPAC's stated intent to focus on
main trails in reasonable locations, with loops being desirable but not a priority .. This "principle"
should be reworded to reflect the GavPAC votes. I don't recall the GavPAC espousing #d, either.
There was discussion of bike routes being considered by Caltrans when it makes right of way
improvements, but not that there be a priority for trail routes south of Highway 101.
P. 4-7, 2nd paragraph - as stated, this is only half of the concept discussed by the GavPAC. The
second half, which should be included in this paragraph, is establishing quantitative limits upon
public use of certain trails where they have a particular risk of abuse - such as being adjacent to
agriculture or near residences, crossing riparian and other sensitive areas, etc. These should be
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Mr. David Lackie
February 15, 2013
Page 4
enforceable limits, such as limiting hours of operation (closing off access from parking areas near
or at the trailhead, locking parking areas between dusk and dawn, etc.), having State or County
parks staff police the trails to determine whether they are being improperly used, closing trails if
nearby residents and agricultural operators demonstrate recurring threats to their safety, security,
crops, equipment, and other practical and effective management tools.
P. 4-17, Segment 2 - the narrative doesn't match the staff's proposed trail alignment. In fact,
these notes are a joke unless the GavPAC flatly rejects the staff's proposal and states in strong
terms why it is doing so.
P. 4-24, numbered list at bottom - this list also becomes irrelevant with the staff's proposal. The
approach to the Gaviota Marine Terminal site was to leave the future trail location open, with the
idea of using that site and the PXP property to connect the access provided by the overpass with
the mountain trail system, and possibly a beach access, but with no specific location until the
ultimate site use is known. The GavPAC's approach is more holistic than the staff's proposed
mapped trail location and is superior.
P. 4-24, 4th Para. - the GavPAC rejected the concept of a "Primary Route" for the Gaviota
Marine Terminal site because planning for this site hasn't really begun. Rather, that was to be an
exploratory route subject to future modification, and so it should remain. We ask that the staff's
proposed changes in this paragraph be rejected.
P. 4-31, Policy REC-2 - now that the GavPAC has finalized its trail locations, it might want to
consider modifying this policy to delete some of the old PRT map designations which were so
broad because of the inadequate maps used when they first were created.
P. 4-31, Policy REC-3 - why is it that the policies applied to private property are worded with
"shall" but the policies applied to the County's obligations are worded as "should"? #6 leaves the
door open for a trail exaction to be 50, 100, 200, or 500 feet wide if it is going to "float" with bluff
retreat. This is wrong and should be rejected. In the Gaviota Plan area, bluff retreat is about 5-6
inches per year (an average) without regard to potential accelerated retreat rates with sea level
rises so a permanent trail easement must include all land where the bluff ultimately could "float."
If the policy is to provide for a floating trail, it should include reference to a maximum time period
for calculating the easement width, just as the existing LCP does for new development setbacks
(50-75 years - LCP Policy 3-4). In #6, the first "should" more properly is a "shall" because there
is no excuse for siting a trail in highly unstable and erosive areas.
P. 4-31, Policy REC-3, #4 - I suggest that this be strengthened to read, "Planning for trails within
the Gaviota Coast Plan area shall discourage trail crossings at railroad tracks because of the
potential safetY hazards of at-grade crossings and the potential for significant visual impacts
associated with bridged crossings of railroad tracks." As worded, this policy is far too weak. As
the number of recreational pedestrians in the vicinity of railroad tracks has increased in the
County over the past 20 years, the number of injuries and deaths froni people and their dogs
being on the tracks and not hearing an approaching train has greatly increased. Likewise, the
idea of elevated pedestrian bridges over the tracks (which must have adequate clearance to
allow all manner of trains to pass under) in this remote and pristine area is odious. The GavPAC
. has developed strict standards to limit visual impacts of private structures. Imagine a series of
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Mr. David Lackie
February 15, 2013
Page 5
new, tall train trestles between Highway 101 and the ocean, devoted solely to getting trail users
safely across railroad tracks?
P. 4-31, Policy REC-3, #7 - this is fine as far as it goes, but it doesn't include that the trails shall
be monitored regularly and usage modified and limited to prevent damage and allow for
restoration if damage has occurred, to prevent trespass, damage, theft, crop contamination,
safety and privacy breaches, etc. and closed if the modification and limits are unsuccessful.
Unless the trails are policed and these protections enforced, the potential for abuse and for
significant adverse impacts to neighboring residents and agricultural operations cannot be
controlled. The only way to ensure that trails don't become a scourge is to make it clear that they
will be closed if they, and the nearby private lands, are not respected.
P. 4-31, Policy REC-3 - this should include provisions for maintenance, monitoring, and sanitary
.
facilities.
P. 4-32, Policy REC-4 -- #1 should read, "The coastal trail shall be constructed in a manner that
is consistent with the protection of all coastal resources and that demonstrates respect for
property rights and the proximity of the trail to residential uses, and that evidences consideration
for the protection of the privacy of adjacent property owners. Consistent with all other planning
considerations and principles stated in this Plan, the trail shall be close to or on the beach where
feasible and where it avoids sensitive resources and conflict with agricultural operations. Vertical
connector trails shall provide reasonably spaced and periodic connections between the bike trail
and the beach/bluff trail." See the Coastal Trails Act, which at the very beginning, in Section 1,
sets out as the primary objective in trail location the protection of private property rights and
coastal resources as well as residential privacy, which trail advocates consistently ignore in their
push for proximity to the ocean being paramount. Nowhere does the Coastal Trails Act say that
the trail shall be as close to the ocean as possible or feasible. That language was created by
staff of the Coastal Conservancy, not the Legislature. The Legislature's language prevails.
P. 4-33, Action REC-1 - why is "allowances of additional agricultural uses" included as an
incentive? This suggests that a landowner must request permission for "additional agricultural
uses" (not structures, but uses) so what would those be?
P. 4-33, Action REC-2 - this should be a "shall" for the reasons stated in earlier comments.
Unsupervised, uncontrolled trails in such a sensitive area are contrary to all that the Plan works
so hard to preserve and protect. Public recreational desires does not trump the Plan's overall
objectives or the importance of preserving and protecting coastal resources, including agriculture.
This Action should be expanded to require that a broad range of tools be used to monitor, control
and curtail the impacts of trails, particularly where they cross private property or run next to ag
lands.
P. 4-33, Policy REC-8 - this is adapted from LCP Policy 7-14, it restates it. It is redundant and
should be deleted.
P. 4-33, Policy REC-9 - ditto ..
P. 4-34, Policy REC-10 - ditto
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Mr. David Lackie
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P. 4-34, Policy REC-11 - this policy of discouraging new RV camping opportunities is in the LCP
and may have been appropriate in the late 1970's when it was written, but it should be revisited in
light of the heavy seasonal demand placed on existing facilities in the Plan area. Try to get an
RV or camper spot at these facilities during the high demand months. This Plan is likely to be
effective for yet another 30-40 years and the demand will only increase, not decrease, during that
time. This Plan gives us an opportunity to revisit outdated LCP provisions and make corrections
that will be suitable to future conditions along the Gaviota Coast.
P. 4-34, Policy REC-12 - this is another LCP policy that requires revision. In the late 1970's,
planners obviously assumed that the Goleta growth would continue to march steadily westward
and swallow places like Las Varas and Edwards ranches. Thanks to Tim Doheny, these ranches
continue the legacy of ranching that promises to retain the beauty of the Gaviota Coast. The LCP
proposes to implement access to the beaches with a vertical bike trail·from the highway to
Edwards Point with a publicly-owned campground, restrooms, a store, and picnic tables! The
staff-proposed modifications to that policy are an improvement except for subsection b, which still
includes public acquisition of Edwards Point and installation of parking, restrooms, picnic tables,
bike racks, and low-intensity camping. Subsection b should be deleted entirely from the existing
LCP Policy 7-28 and from the GavPAC proposal to modify that policy. The character of this
area, as promoted everywhere else in the Plan, is completely contrary to the concepts set forth in
LCP Policy 7-18, which, simply stated, is outdated and unsuited to the natural beauty of these
ranches.
Conclusion
I thank you for reading this letter and for considering its contents in your deliberations. I also ask
that the GavPAC provide greater opportunities for members of the public to provide written
comments on this and other sections of the Gaviota Coast Plan. Were it not for the fact that
review of the Land Use Section took so long, I would not have been able to provide these
comments because I didn't find the current proposals on the website until Monday and had a full
week of other work to do. Providing written comments before a Wednesday hearing wasn't
possible. The 3-minute limit on all comments for such a complex section is unrealistic and
deprives the public and the GavPAC of the opportunity to consider important information. I
apologize for any typographical errors and for the length of this letter.
:L~~
Susan F. Petrovich
Attachment: Excerpts from Nollan v. California Coastal Commission
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Mr. David Lackie
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EXCERPTS FROM U.S. SUPREME COURT OPINION
NOLLAN V. CALIFORNIA COASTAL COMMISSION
. 483 U.S. 825 (1987)
Justice A. Scalia, Author of Majority Opinion
Summary of Facts
The Nollans owned a beachfront lot in the Faria Beach area of Ventura County,
approximately mid-way between two public beaches. An 8-foot high concrete seawall
separated the upland portion of their lot from the beach portion. They sought to remodel
or demolish and replace the small bungalow with a newer, larger home similar to the
others in the neighborhood. They applied for Coastal Commission approval and the
Commission approved their application on the condition that the Nollans grant a public
access easement across the beach area between the mean high tide line and the
seawall to allow connectivity between the two public beach parks. The Nollans sued.
The State argued that the Nollans' new house would impact the public view of the beach
so the easement was justified. The Court of Appeal ruled against the Nollans'
constitutional claims on the basis that, "although the condition diminished the value of the
Nollans' lot, it did not deprive them of all reasonable use of their property." The Supreme
Court ruled in the Nollans' favor on the constitutional grounds for the reasons stated
below.
Had the Commission required the Nollans to grant the public access easement across
their beachfront in the absence of a permit application, there would be no doubt that it
would be a taking. It is not a mere "restriction on its use,"
"We have repeatedly held that, as to property reserved by its owner for private use, the
right to exclude [others is] one of the most essential sticks in the bundle of rights that are
commonly characterized as property."
"We think a permanent physical occupation has occurred ... where individuals are given
a permanent and continuous right to pass to and fro, so that the real property may be
continuously traversed, ·even though no particularly individual is permitted to station
himself permanently on the premises."
The Supreme Court noted that, if the Commission could justify denying the house permit
altogether or impose conditions on the house permit to protect public views, there would
be no taking. "The evident constitutional propriety disappears, however, if the condition
substituted for the prohibition utterly fails to further the end advanced as the justification
for the prohibition. When that essential nexus is eliminated, the situation becomes the
same as if California law forbade shouting fire in a crowded theater, but granted
dispensations to those willing to contribute $100 to the state treasury .... Similarly here,
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Mr. David Lackie
February 15, 2013
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the lack of nexus between the condition and the original purpose of the building
restriction converts that purpose to something other than what it was. The purpose then
becomes, quite simply, the obtaining of an easement to serve some valid governmental
purpose, but without payment of compensation. Whatever may be the outer limits of
'legitimate state interests' in the takings and land use context, this is not one of them. in
short, unless the permit condition serves the same governmental purpose as the
development ban, the building restriction is not a valid regulation of land use, but 'an outand-out plan of extortion.'"
The Supreme Court found no rational nexus between the easement exaction and the
house's impact upon public views from the highway, despite the Commission's attempt to
sell a "psychological barrier" argument. "We therefore find that the Commission's
imposition of the permit condition cannot be treated as an exercise of its land use power."
In response to the Commission's argument that other landowners along Faria Beach had
granted these lateral easements as conditions for their development and the condition
was part of "a comprehensive program to provide continuous public access along Faria
Beach as the lots undergo development or redevelopment," the Court responded that
"the Commission may well be right that it is a good idea, but that does not establish that
the Nollans (and other coastal residents) alone can be compelled to contribute to its
realization. Rather, California is free to advance its 'comprehensive program,' if it
wishes, by using its power of eminent domain for this 'public purpose,' see U.S. Const.,
Amendment 5, but if it wants an easement across the Nollans' property, it must pay for
it. "
"One of the principal purposes of the Takings Clause is to bar Government from forcing
some people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole."
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