Unintended Consequences - Who Really Benefits if Ex Parte Communications with the CCC Are Banned?
Last week that the Coastal Commission (CCC) voted by a narrow margin (6-5) to support SB 1190 (Jackson), which would bar commissioners from having private meetings?and/or discussions ?—??called ex parte communications??—??with those who have business before the state agency’s 12-member appointed commission. SB 1190 is expected to pass in the Senate next week. As posted below under coastal news, The Los Angeles Times has endorsed SB 1190, opining that “Ex parte communications are inherently unfair because … lobbyists with the time and money to travel up and down the state to meet with commissioners who reap the advantages of this special relationship.” But do CCC “lobbyists” really have more sway over the CCC than NGOs and the public? Attend a CCC meeting or watch it online. In most cases, for every applicant there are dozens of NGOs and project opponents who speak against projects they don’t like – wherever along the coast the CCC is meeting. NGOs and the public hold demonstrations and press conferences outside of CCC meetings to make their points. They convinced editorial boards up and down the state that the firing of the CCC’s ED in February was a power play by developers and lobbyists (even though commissioners, including the chairman, said that claim was unfounded) and NGOs that routinely participate in CCC meetings helped draft the CCC’s RFP for a search firm to hire an executive director. In addition, NGOs have demanded – successfully - that they be involved in the ED selection process and there is an NGO website that posts “report cards,” grading each commissioner after each CCC meeting according to how she/he voted on projects. So who really holds the most power over the CCC? We’re a coastal NGO, and we’re not criticizing other coastal NGOs for being active in CCC affairs, but as SB 1190 makes its way through the Legislature, we think it’s time to have an honest conversation about who really holds power over the CCC and whether SB 1190 levels the playing field or tips it toward groups and persons who routinely oppose projects before the CCC.
Could CCC Decisions Be Overturned Due to Ethical Violations and Unreported Ex Parte Communications?The CCC has been in the news almost daily since it met last week and we have posted a number of articles under our coastal section below. Some of the articles report on ethics probes against four commissioners and others discuss unfiled ex parte communications. Intrigue surrounding the CCC could result in some decisions being overturned or at least appealed. Chairman Kinsey said this week that he will not participate in the Banning Ranch deliberations this summer for failing to file forms for two ex parte communications (including a site visit and memo that resulted in staff changing its recommendation against the project), but, regardless of the outcome, the prevailing party can expect a challenge due to the background of the case.
Read a list of supporters and opponents, as well as the most recent staff analysis of the bill, here.
During its meeting this week in Newport Beach, the Coastal Commission voted to support SB 1190 and three commissioners, Carole Groom, Mary Luevano and Wendy Mitchell, have decided not to participate in ex-parte communications with third parties, at least until the Legislature takes action on SB 1190. With this background, it was ironic to read this week that Chairman Steve Kinsey (Marin County Supervisor) failed to report two ex parte communications with reps of the proposed Banning Ranch multi-use project in Newport Beach (see articles below). Mr. Kinsey has asked the CCC's attorney to determine whether he should recuse himself from voting on the Banning Ranch project. Violations of the disclosure requirements carry fines of as much as $7,500, and commission decisions affected by a violation can be revoked. Banning Ranch has been a target for some NGOs so litigation should be expected after the CCC acts on the application for a CDP.
Tuesday (April 26, 2016), the USACE submitted to Congress a "Chief's Report," which is necessary for the projects to be funded and constructed beyond engineering and design. Congress authorized studies of the Encinitas project in 1993 and the Solana Beach project in 1999 and the studies were funded in the Energy and Water Development Appropriations Act (WRDA) of 2000.
The Encinitas project includes the construction of a 50-foot-wide beach along a 7,800-foot-long stretch of shoreline using 340,000 c.y. of sand, with renourishment every five years with approximately 220,000 c.y. of sand over a 50-year period. for a total of nine additional projects.
The Solana Beach project includes construction of a 150-foot-wide beach along a 7,200-foot-long stretch of shoreline using 700,000 c.y. of sand, with renourishment 10 years, with approximately 290,000 cubic yards of sand over a 50-year period for a total of four additional projects. nourishments.
Material for the projects will be dredged from a borrow site identified off the coast of San Diego County. Physical monitoring of the performance of the project will be required annually throughout the 50-year period of federal participation.
The projects will provide coastal storm damage reduction and maintain existing recreational beaches in the two cities. Next up: obtaining construction funds from Congress - hopefully in WRDA 2016 - a version of which was passed by the U.S. Senate this week.
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The most controversial article is about a lawsuit the Pacific Legal Foundation (PLF), a property rights non-profit law firm, has brought on behalf of a San Clemente homeowner who is challenging a coastal development permit condition that prevents him from repairing a seawall that existed before he replaced a beachfront mobile home with a new one. The condition is often included in CDPs issued for beachfront or bluff top development up and down the coast, but PLF argues that, among other things, the permit condition violates Coastal Act section 30235, which gives its client and other oceanfront property owners the right to safeguard their property with a seawall or other protective device when required to "protect property from erosion and storms". Click here for more information about the lawsuit, including a copy of the petition and supporting documentation.
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