FYI: Today’s public opinion, though it may appear as light as air, may be tomorrow’s legislation–for better or for worse. –Earl Newsom

SLO County’s coastal plan is the first to receive a full review by the Coastal Commission–at a time when the commission’s fate hangs in the balance

BY TRACY IDELL HAMILTON

Who will control development and protect the environment along California's 1,100 miles of coastline? More pressing for San Luis Obispo County, who has the final say over our own 114 miles?

Many Californians thought those questions were answered back in 1972, with the passage of Proposition 20, a voter initiative that gave the legislature four years to craft a set of guidelines for coastal development.

Lawmakers responded with the Coastal Act of 1976, one of the toughest set of environmental laws in the nation. In addition to iron-clad guarantees of continued public access along the state's beaches, the act also created a statewide commission to make sure cities and counties along California’s western edge created local coastal plans that followed the strict new laws.

But now, just as San Luis Obispo County undergoes a review of its 13-year-old plan, the commission's constitutionality has come under attack–even as a member of the Assembly has floated a bill that would strengthen the commission's enforcement abilities.

Coastal clashes

The California Coastal Commission and the County of San Luis Obispo have always been uneasy partners in their efforts to craft development guidelines and environmental protections for our famous coastline.

At times the relationship has been downright hostile. The county’s coastal plan remained uncertified by the commission for several years in the late 1980s while the two entities wrangled over language concerning proposed development and protection of the Hearst Ranch’s coastal acreage.

Just this month, during the first review of the county’s plan, commission staff heard a unanimous howl of protest from the Board of Supervisors over several recommended changes to the plan.

Most controversial is a recommendation by commission staff that any intensification of agricultural uses–changing from grazing to more water-intensive row-cropping, for instance–would require a permit.

Other recommendations, especially those relating to water quality and non-point source pollution control, also came under heavy fire from the supes, who complained that the county doesn’t have purview over many of the proposed changes, and that other agencies are already implementing programs like the ones recommended by commission staff.

With rumblings about "the dark side of power, ego, and agencies," the supervisors asked commission staff to go back and find out which agencies are in charge of which programs, and suggested the staff meet with ag representatives.

Remarkably, since those requests were made, both county and commission staff–and at least one supervisor–agree that the two staffs have been working well together, and that commission staff are making a good-faith effort to gather more information. Most notably, there is general agreement among all parties about most proposed changes to the plan.

And while it's all just talk at this point–no one knows yet what the final proposed changes to the plan will be, whether the commission will approve those changes, or whether the county will actually update the plan as recommended, this seemingly unprecedented degree of cooperation comes at a time when the future of the commission–or at least its make-up–hangs in the balance.

Oceans of disagreement

On April 26, Sacramento Superior Court Judge Charles Kobayashi ruled that the California Coastal Commission is unconstitutional.

Attorney Ronald Zumbrun, who has been making this argument for more than a dozen years before several judges, argued, and Kobayashi agreed, that the commission is unconstitutional because eight of its 12 commissioners are appointed by the legislature, not the governor (a violation of separation of powers), and serve without term limits.

An agency dominated by legislative appointees should have legislative powers only, Kobayashi ruled, not the quasi-judicial and executive powers the commission now wields. "Purportedly an executive agency," Kobayashi wrote, "the commission is answerable to no one in the executive."

Zumbrun, a property-rights lawyer one of whose clients built an artificial reef of PVC pipes and tires off Newport Beach without a Coastal Commission permit, called the commission an "oppressive agency answerable only to itself."

Not true, responded Peter Douglas, who helped draft Proposition 20 and has long served as its executive director. He pointed out that virtually all of the commission's rulings can be challenged in court–and many have been.

Equal division of commissioner appointments among the governor, the speaker of the House, and the Senate Rules Committee was designed expressly so that no one entity would have control over the agency, he said.

But Zumbrun dismisses this rationale. "The Coastal Commission needs to be straightened out by the courts," he told the San Jose Mercury News. "This should end up a positive because there will be more checks and balances. They can’t go around bullying private property owners."

While the commission feels confident it will prevail on appeal, Sierra Club spokesman Mark Massara said that if the ruling does stand, environmentalists will launch a new ballot measure to create another commission by constitutional amendment. He said the new commission would be even more stringent.

"There are 35 million people in California," he said, "and 34.5 million of them can’t afford big mansions on the beach."

Selling the seashore

In response to citizens’ concerns that California’s coastline was slowly being sold to the highest bidders, and public access to this national treasure was being lost, the legislature tried twice to draft a coastal protection law in the early 1970s

"It failed both times, due to massive industry opposition," said Sarah Christie, the commission’s legislative coordinator. Proposition 20, the voter initiative passed in response to the legislature’s failure, was more strongly worded than either bill drafted by the legislature.

The strength of the act, and of the commission, have rubbed a lot of powerful people the wrong way. They particularly resent the commission’s dominance over potential coastal development.

In 1982, then—Attorney General George Deukmejian ran on a platform promising to abolish the commission, and won. When he learned that he could not disband an agency created by voter initiative, he hamstrung the agency with massive annual budget cuts.

To save money, the commission closed its North Coast office. "They were doing handwritten staff reports as late as 1986, because the agency had no computers," Christie said. "When they did finally get computers, they were old Wang hand-me-downs from other agencies."

Deukmejian also used his four appointments to the commission to undermine the agency, appointing people who were openly hostile to the commission's mandate, according to commission staffers.

Other Republican governors made similar moves, as when Pete Wilson appointed San Luis Obispo County's 5th District Supervisor Mike Ryan to the commission just before he left office in 1999. That appointment lasted only a few weeks; Ryan was yanked off the commission by incoming governor Gray Davis.

Having the governor make a majority of the appointments has been floated as one possible remedy to the constitutionality issue, but critics of that idea say giving no office or body the majority of appointments is one reason the commission has stayed strong.

"The governor and members of the legislature are lobbied regularly by constituents to have the commission vote this way or that way on a particular project," said Christie, "but they can't deliver, because none has control of the [majority of appointees on the] commission," she said.

When deciding whether to permit any given development, the commission must make legal findings based on the Coastal Act, she said. "We're not legislative, we're quasi-judicial. We must apply the law to our findings."

That point was underscored with the Bolsa Chica wetlands decision in 1999. At the time, then-Gov. Wilson was applying political pressure on the commission to allow for increased development near the Huntington Beach wetlands, Christie said. The commission ended up overriding the staff's recommendation and voting to allow the additional development.

Homeowners and environmental groups took the commission to court over its decision. They won, and the commission's decision was overturned. The commission appealed. The appellate judge not only upheld the lower court’s decision but ruled for an even stricter interpretation of the Coastal Act–and thus for even less development.

That decision was a wake-up call to developers and others who'd hoped to weaken the commission or at least pressure it to go easy interpreting the law, Christie said. "[The commission] can't just rule how it would like," she said. "It has to follow the laws within the Coastal Act."

The state has already filed an appeal of Kobayashi’s ruling, and the judge has stayed his decision. So long as that stay is in effect, the commission may continue to issue permits, continue its review of San Luis Obispo County's local coastal plan.

The first major review

Although the Coastal Act mandates reviews at least once every five years, SLO County's is the first substantial plan to be subjected to a full review by the commission,

Under the act, counties and cities are responsible for achieving "statewide coastal resource protection goals through the creation and implementation of Local Coastal Programs." The commission must certify that those plans follow the goals and guidelines of the Coastal Act, but once a plan has been certified by the commission, the city or county assumes responsibility for issuing coastal development permits.

Because of limited funding, few periodic reviews have been undertaken, and, until now, none as large and complex as SLO County’s. Increased federal funding allowed the commission to begin identifying which cities’ and counties’ plans were most in need of updating. In December, 1998, the commission made San Luis Obispo’s plan its top priority for review, based on the "sensitivity and statewide significance of coastal resources" in the county, growth pressures, the age of the approved plan, the number of amendments and appeals it has undergone, and continued public outcry over many of those amendments and appeals.

SLO County's plan was certified in 1988. Since then, the county has amended the plan 26 times, and the commission has heard more than 60 appeals of permits granted under the plan.

Outdated information within a county's coastal plan increases the number of amendments and appeals, creating more work for both the county and the Coastal Commission. Additionally, commission staff cite many changes in conditions, knowledge, and circumstances that should be reflected in an up-to-date plan.

"Outdated Local Coastal Programs are the single greatest threat to coastal resources," according to commission literature, "because they don't accurately reflect current conditions." In addition, many of the amendments to SLO County's plan, said Christie, have been development-specific.

One of the most controversial amendments in SLO County concerned Hearst Ranch.

In the late 1960s, the Hearst Corporation and the county had plans for all sorts of development plans for the 83,000-acres Hearst Ranch. Once the Coastal Act passed, however, the corporation and the county were forced to scale back those plans in light of the new, stronger environmental laws. Most plans for development were scrapped, but the corporation was allowed to upzone about 300 acres near San Simeon Point from agricultural to commercial use.

One of the main purposes of the Coastal Act is to preserve viable agricultural lands. It does this by severely restricting conversion or subdivision of such lands. Just as your neighbor may not tear down his house and build a Costco on his land in a residential neighborhood, farmers and ranchers in the coastal zone may not subdivide their land to turn it into condos while it remains economically feasible to farm it or graze it.

According to the act, prime ag land–a designation made by the Natural Resources Conservation Service–may be converted to nonagricultural uses only under three conditions: if a third-party ag viability report determines that continued ag use is no longer economically feasible; if such conversion would preserve prime ag land; or if the conversion would still keep development concentrated within, contiguous to, or in close proximity to existing development.

Furthermore, such conversion may take place only with "adequate public resources, and where it will not have significant adverse effects, either individually or cumulatively, on coastal resources."

To mitigate the Hearst development the commission had agreed to, commission staff used the second allowable exception: "if such conversion would protect prime ag land." We'll allow you to develop those acres, said commission staff in effect, but you must put an easement over the rest of your grazing land to preserve it as the prime ag land it is.

Without such an easement in place, staff feared that the visitor-serving and resort areas of the Hearst property could make continued grazing of the corporation's agricultural lands less feasible, "and thus begin a domino effect" of increased development. Increased development on the ranch, said then—County Supervisor Laurence "Bud" Laurent, would have "telling and lasting negative impacts on the SLO North Coast and Big Sur environments in the areas of traffic, housing, water projects and not least, setting precedent for the conversion of agricultural lands to more intensive uses."

The Hearst Corporation never agreed to the easement, and certification of the county's coastal plan was held up for years while the county, the corporation, and the commission wrangled. The county finally agreed to include easement language in the plan, but declared publicly that as soon as the commission certified its plan, it would move to amend the plan by striking the easement requirement.

It did just that in 1988, and commissioners overriding staff's recommendation not to allow the county’s amendment.

Where are we now?

The county and the commission are now more than a year into the periodic review. It's been a learning experience for all, say staffers, and a valuable one.

After deciding to review SLO County's plan, the commission began pubic hearings and workshops all over the county to begin the task of identifying how to review the plan, how to make recommendations for updates and changes.

The commission uses a simple yardstick for evaluating a coastal plan: Are the plan and the policies contained within it still implementing the laws and policies of the Coastal Act? Commission staff must also take into account new knowledge regarding coastal protection and changed conditions within the county.

In the course of its public meetings, and thanks to research by both county and commission staff, it has become clear just how much has changed in the SLO County over the last 13 years.

For one thing, our population has increased by 20 percent since 1988–and is projected to increase another 58 percent by 2020. Since 1988 more than 2,000 new residences have been built in the coastal zone.

For another, many endangered species have been added to protection lists, including the steelhead trout and the red-legged frog, and threats to those species and their habitats must be addressed. The emergence of a growing elephant seal colony at Piedras Blancas, and the spread of pitch canker disease, which has become a serious threat to the pine forests around Cambria, must also be dealt with.

Since 1988 SLO County has also experienced increased shoreline erosion, significant flooding in Cambria, the emergence of MTBE as a groundwater pollutant. Highway 1 has been designated a Scenic Highway. The state geologist has designated San Simeon Fault as active. These changes and others mandate the updating of the county's coastal plan, according to the commission.

Commission staff also identified what it terms "coastal management achievements" in the county since the plan was implemented. These include the permanent protection of such large tracts of coastal lands as East-West Ranch, Sur Sur Ranch, the Williams Ranch, CT Ranch, the Estero Bluffs, and Morro Palisades, among others. Conservation easements have been negotiated for almost six miles of coastline between Montaña de Oro and Avila Beach, and for the now-decommissioned 3,000-acre Guadalupe oil field, which is being cleaned up.

The county has also seen increased funding and studies for erosion control, increased participation on the part of the public through Coastal Community Advisory Councils, and increased funding for protecting and mitigating coastal resources.

After more than a year of research and public participation, Coastal Commission staff finally drafted a preliminary report on the periodic review of the county's local coastal plan. It was released on February 2.

The 364-page report contains hundreds of recommendations on everything from water quality, environmentally sensitive habitat and wetlands, agricultural resources, public access and recreation, coastal hazards, scenic and archeological resources, energy and industrial development, commercial fishing and boating, and implementation procedures.

Permits for planting

County staff prepared a detailed response to the report after consulting with various county and state agencies, including the Agricultural Commissioner's office, Public Works, County Counsel, the Regional Water Quality Control Board, and others.

During a day-long study session on May 1, the county supervisors went through the behemoth report and its staff’s response to it–or at least a 100-page summary produced by John Euphrat, the county planner charged with overseeing coastal zone activity.

In his summary Euphrat condensed the county staff’s recommendations into an easy-to-read chart that shows the commission recommendation, any action required to implement the proposed recommendation, whether county staff agreed or disagreed or would like to modify or get more information about a recommendation, and the cost of implementing the recommendation. Euphrat and the planning staff highlighted three areas that "raised significant concerns and have potential major staffing cost implications: agriculture, water quality and environmentally sensitive habitat areas."

The most controversial of the Coastal Commission’s recommendations is that farmers would need permits before intensifying ag activities, including activities that would require increased use of water.

That recommendation brought a storm of protest from the agricultural community and county supes alike. They told commission staff that requiring permits would be detrimental to the economic viability of farming operations–that farmers must be able to respond to market forces and change crops quickly.

"We were just appalled when we first read the recommendation," said Joy Fitzhugh, legislative analyst for the SLO County Farm Bureau. "It seemed that the commission was suddenly defining agriculture as development. To define ag as development opens up a whole can of worms."

Said Shirley Bianchi, a longtime supporter of the Coastal Commission, "They just didn't understand the needs of agriculture. I mean, I'm a tremendous environmentalist, but let's be reasonable here."

Grapes of wrath

Bianchi and others believe that it’s the increase in wine-grape monoculture in the county that seems to have raised concerns about intensified agricultural practices within the coastal zone. But she and Fitzhugh point out that few varietals of wine grapes grow well in our coastal climate.

"The trigger seems to be vineyards," Fitzhugh said, "but why hang all of agriculture? And who is to determine that vineyards are bad?"

More galling to many than the actual recommendation, however, was their impression that commission staff seemed to have made the recommendation with little input from ag sources.

"It was just clear from that and other recommendations in the review that they didn't understand much about agriculture," said Fitzhugh. She said that from reading the section on recommended pesticide regulations it was clear that the staff did not know about the many regulations farmers already labor under. "The statistics they used were correct, but the implication was that there are [currently] no pesticide regulations."

Bianchi said the commission's oversight reminded her of something she calls "the silo effect" she saw in the county in years past. "Planning never talked to engineering, who never talked to other departments, and the public was left out of the process all together. It was like, 'We're the county, don't bother us,'" she said. "In the last three or four years, that's really started to change, in large part because of [County Administrator] David Edge. He's gotten departments to work together, and reminded them that they work for the public.

"The Coastal Commission needs a David Edge," she continued. "They need to talk to the other agencies already involved in a lot of these efforts. I mean, we’re getting ranked on for stuff that's not even in our jurisdiction."

Since that oversight was pointed out to commission staffers, however, most everyone has given them high marks for reaching out to farmers and other agencies and for trying to become more informed about agricultural practices and programs already in place.

"We have been meeting with farmers," said Elizabeth Fuchs, a commission staffer who's been working with the county on the periodic review. "We've had some really productive meetings, very focused and with give-and-take dialogue. And of course all this will inform the final document."

Fuchs said time and staffing levels prevented more and earlier meetings with aggies, and admitted that this being the commission’s first major periodic review, the learning curve was high. "It's safe to say that I've learned a lot from this process," she said.

Charles Lester, the commission's Central Coast district manager, agreed that the final report would undergo changes. "That's not to say that we don't still have some concerns; just that there might be different ways to address them," he said.

Euphrat does not seem worried that commission staff will try to ramrod unpopular recommendations through. "The good news is, this is a preliminary draft," he said, "and commission staff has acknowledged that."

The supes will take up the preliminary draft of the review again on June 5, and send their final comments to commission staff before the public comment period ends. Staff will then draft a final report, which should be finished and ready to present to the Coastal Commission in July. After the review is approved by the commission, the county technically has a year to respond to the recommendations.

What happens after that is anyone's guess.

Implementation not required

One of the weakest provisions of the Coastal Act, according to staffers, is that while it requires a periodic review, it does not require actual implementation of any of the proposed updates to a local coastal plan.

It was a weakness recognized even as the law was being written, according to Christie, but lawmakers were trying to get the bill passed, so they decided to worry about the oversight at a later date.

"What that means is that the thousands of hours of work by both the county and commission staff, all the input by the public–all of that could be moot," she said.

Environmental groups have been trying for years to find a legislator willing to sponsor a bill to put a hammer (or an "incentive," as they say) behind the implementation of proposed changes made to freshly-reviewed local coastal plans.

They finally found a hero in Santa Barbara Assemblywoman Hannah-Beth Jackson, who introduced AB640 earlier this year.

The bill is co-sponsored by the League for Coastal Protection, one of the original grassroots organizations behind Proposition 20, the newer California Coastal Protection Network, which aims to link coastal protection groups up and down the state, and the Sierra Club.

Susan Jordan, a league board member and one of the founders of the network, called AB640 the most critical piece of coastal legislation in years.

"The future of the coast is at stake here," she said. "It tells local governments to take their responsibility to update their coastal plans seriously."

If it becomes law, AB640 will be applied by the commission only if affected cities and counties do not implement the proposed changes and updates to their plans voluntarily. As of now, the commission has no recourse with recalcitrant counties. Specifically, it could refuse to process any more amendments to a local coastal plan unless at least some of updates were implemented into the plan.

Also, any appeal that came to the commission from a city or county without an updated plan would be evaluated within the framework of the Coastal Act, not of the outdated plan.

Finally, the bill would make all permits issued under an outdated plan appealable.

SLO County’s opposition

The bill is unanimously opposed by the supervisors, who say the county would lose too much local control over our local coastal plan. That's Bianchi's beef with the bill.

"If we don't like the final recommendations by the commission, we can write a letter to them about it. That's it. Big whoopee," she said. "The Coastal Act is about local control with a guiding hand. This would take away too much local control." Bianchi says the Coastal Act is fine just the way it is.

But Jordan argues that the bill actually gives more local control to citizens. "It might be a loss of her local control, but in terms of residents, there’s more–they can hold local governments responsible for poor planning decisions based on an outdated plan."

If the bill became law, it would also mean that local governments couldn’t push through major amendments to the plan, Jordan said. She pointed out that amendments are often driven by developers on behalf of specific developments, like the Hearst Corporation’s pushing the county to amend out easements over its land.

Planner Euphrat said that in addition to what the county sees as a loss of local control, there's a money issue. The bill does not provide any additional funding for the county to implement proposed changes–and the county has no way to raise that extra money.

Euphrat cited one example of the economic hardship such a law could have on the county: The commission gave the county $80,000 to prepare its North Coast Area Plan update.

"We've already spent $250,000 on that one, and we'll probably spend another $250,000 before we're through," he said.

But Jordan said the North Coast Area Plan update was a perfect example of why the commission needed some way to insure updates became reality.

"That update was essential," she said, but noted that even with all the time and money spent on it, when it went back to the supervisors, none of the recommended updates was implemented, and the entire plan is back on the drawing board. "And that outdated plan lets Hearst Corporation build on San Simeon Point. It’s the outdated plan that lets them build."

As the debate over Jackson's bill continues to heat up, as the commission prepares to defend its constitutionality in state court, and as SLO County nears the completion of the period review, the commission's Lester hopes to focus on voluntary consensus.

"We're not emphasizing the legal aspect. We want to recognize the mutually compelling interest we both have in having an up-to-date plan." He does not seem worried that the county would not implement at least some of the commission’s recommendations.

"Remember, we already agree on almost 70 percent of these recommendations," he said. Æ

Tracy Hamilton is a New Times staff reporter. She can be reached via e-mail at [email protected].