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Sonoma County Coastal Access AT RISK


Sonoma County Coastal Access AT RISK

By Dave Hardy

The Coastal Commission’s tie vote to hear State Parks proposal for beach fees was unquestionably frustrating for local beachgoers. The Commission could have killed the entire proposal, but they didn’t.  For the County though, it was really a procedural loss, and only that. The real fight lies ahead as the Commission will now have to consider the substance of the language in the Sonoma County Local Coastal Plan (LCP).

As I watched the April 15 proceedings broadcast online, I was struck by the lack of discussion about what was really in the LCP.  Commission staff got to the issues, as did Supervisor Carrillo and PRMD Director Tennis Wick, Mike Reilly, and the folks from Surfrider Foundation and CoastWalk. And a few of the local government commissioners seemed to get the point.  But by and large, the Commission’s deliberations devolved to the state’s budget woes, legislative mandates, and whether Sonoma County’s denial could be the little tail wagging the big dog. 

The Commission’s 26-page staff report (not counting exhibits) was mostly about procedural technicalities and set forth a five-point test about whether the County’s denial presented a “Substantial Issue” of interpretation for the Commission. The Commission staff essentially agreed that on four of the tests, there were not grounds for a finding that the County’s action posed such a “Substantial Issue”.

Sonoma County Coastal Access AT RISK (Goat Rock Beack)Does Our Opinion Count?

As to the fifth test--whether the matter was of great statewide concern, i.e. whether the County’s tail could indeed wag the state dog—Commission staff leaned toward holding a hearing. As a staff report, it was indeed, as Mike Reilly testified, one of the “most equivocal” of recommendations. And as he noted, the “Substantial Issue” test has really existed as a long-time staff evaluation tool without any formal legislative or regulatory authority.

The Legislature intended that local governments have a crucial role in Coastal planning; that’s why local agencies have the primary role of administering the Coastal Act, subject to the oversight and review of the Commission. It’s why the primary planning document is called a Local Coastal Plan, and why it is not effective until the Coastal Commission certifies it. The County’s role is strong, but it is really an agent of the State in the Coastal Zone, which is why it can consider permits that would be exempt elsewhere.

Beach by Beach... No means NO!

The Sonoma County LCP has very specific references to a number of beaches. It has an “Access Plan” and a “Recreation Plan” incorporated into the plan document. These describe facilities as they existed when the plan was first adopted in 1980 as well as improvements for the future, such as improving parking lots and providing trails and restrooms. For example, at Goat Rock, the words say: “No change.” In the 1994 Surfrider Foundation court case that challenged approval of fees, the appellate court acknowledged that impediments to access may be non-physical.  Thus a change from free use to fee use could constitute a change that requires a permit. Based upon the County staff report (which I drafted) on the fee permit, the Board of Supervisors concurred that those words meant what they said.  Charging fees would constitute a change; the LCP said “No change.”  In short, “No” means “No.” Permit denied for being inconsistent with the certified LCP. 

As to interpretation of the meaning of the words “No change” with respect to access at various locations, State Parks says the County’s denial of the proposed fee “imposed a new condition in its LCP that was not intended” and that those words were “simply recognition and grandfathering in of existing services and access points.”  That’s their opinion, and a rather audacious putting of words in the mouth of the County decision makers whose job is to apply policy to facts.

Local vs. State Jurisdiction

The Commission has now taken jurisdiction over a project that the County folks did not see until a few days before the hearing.  State Parks submitted several last-minute project revisions and comments in their effort to jam this through the April 15 hearing. The Commission has plunged headlong into what would otherwise be the County’s permit to process inasmuch as the County has been delegated the authority to process such permits.  Local governments are in a much better position to process these permits because they outnumber commission staff about 10 to 1, and the local staff knows the landscape better than Commission staff posted to San Francisco.

What KIND of Iron Ranger? WHO gets the money?Sonoma County Coastal Access AT RISK (Goat Rock Beack)

State Parks original application to the County was for the classic metal boxes into which you put your money in an envelope. The revised project, submitted directly by State Parks to the Commission staff, is for electronic devices that will allow something similar to what the San Francisco Giants call “dynamic pricing.” You may be able to pay $8 for an entire day of parking at every beach from Salt Point to Bodega Head, and you may have the option to only pay hourly if you’re going to walk the dog at Blind Beach and Goat Rock. Fees could be lower during bad weather or the four “off-peak” months of the year.  You may or may not know when you leave home how much money to have in your pocket. Whether the money ever comes back to the Sonoma Coast depends upon a variety of state budget circumstances, and there really is no guarantee that the dollars from the fees will unlock the chains at Russian Gulch, Bean Avenue, Campbell Cove, etc.

Language & Policy Rules the Decision - No - Yes - Maybe

The discussion will now advance to the core issue:  do the proposed fees conform to the policies of the Coastal Act, and the even more specific policies and language of the Local Coastal Plan as certified in 2001? 

Again, the crux of the County’s position is that there is very specific language that says there will be “No Change” to free access at certain beaches. To charge fees would constitute a change, and “no” means “no.”  For State Parks to move ahead properly, they would need to amend the LCP, which would thus go through County hearings and then, ultimately, to the Commission. Absent an LCP amendment, State Parks will again stumble upon that “No Change” language referring to the specific beaches involved.  “No change” will be the standard that the Commission must apply to the fee request.

How this plays out remains to be unseen.

State Parks will have to argue that the County didn’t really understand its own LCP document, and that the LCP is a recipe for future development for planning purposes, and the County could OK these fees.  They will have to convince the Commission that “No” somehow means “Yes” or “Maybe.”    

In the course of the April 15th hearing, State Parks also kept repeating what was a cheap shot…that the County charges fees too.  That’s true, but those were in place when the facilities at Doran Beach, Westside Park, Stillwater Cove, et al were first opened—before the current LCP was even adopted. Unlike State Parks, the County hadn’t proposed NEW fees since 1982 when the Sea Ranch access points opened (with rest rooms and parking.)

How this plays out remains to be seen.  State Parks wanted to have the new hearing no later than June, but Commission staff said no way. More likely it will take up to a year, according to Commission Executive Director Charles Lester. Commission staff has asked for monitoring information about the effect of fees on access elsewhere. The County had asked State Parks if they had information about the effect of NEW fees, not just increased fees, elsewhere, to which State Parks replied they did not. There is also information to be obtained about the exact number of roadside and remaining free parking at various locations. At some point, Caltrans and the California Highway Patrol might be asked what they think about causing more folks to park along two-lane Highway 1.

Multiple scenarios are possible.

  • The Commission agrees with the County and rejects State Parks permit to charge the fees.  State Parks can then go to court. Or they could turn to the Legislature to amend the Coastal Act to give State Parks explicit authority to charge fees, regardless of what any agency’s LCP says.
  • The Commission approves a permit to allow the fees with varying conditions of approval, including requirements for hours, access, monitoring of offsite impacts, reimbursement for Bodega Bay Fire District and Henry 1 helicopter rescue costs, etc. The County and citizens groups can then go to court to assert that the Commission screwed up, or find that the Conditions of Approval sufficiently resolve local concerns. 
  • There is some potential middle ground for the Commission here. While the LCP language refers quite clearly to “No Change” at certain locations, it does not have that straightforward language at all the other locations.  So, it’s possible the Commission could approve the fees at those other locations, while denying them at the explicitly “No Change” locations. While perhaps not popular, this option would enable the Commission to approve the permit without being directly in conflict with the LCP and thus have a more defensible legal position if challenged.
  • State Parks could back off, withdraw their application at the Commission, and re-apply to the County for a new permit for the new devices and an accompanying LCP amendment that explicitly states that fees are allowed under certain circumstances. This would be subject to local hearings, and the local permit would not be effective until the Commission certified the revised LCP amendment. But it would likely best be sustained in court.
  • State Parks, the Commission staff, the County, local groups such as Surfrider Foundation, Coastwalk, Save Our Beaches can gather around the table to work something out in terms of a rate structure that doesn’t punish locals and allows the State to reap the funds from out-of- towners so that the County or the Commission can approve the permit without an appeal or court challenge.

At this point, the ball is State Parks court. They have decisions to make, fences to mend, and information to gather. When the Commission staff considers the information sufficient, they can bring the matter back for hearing. That will be the time for local citizens to load up the buses with signs that say “Stand by Your Plan” and “No means No.”