Panel declines curfew appeal

The California Coastal Commission put on hold an appeal of a city beach and park curfew, waiting for official notification that the city has issued a coastal development permit or declares itself exempt from the requirement.

The curfew was appealed to the commission by South Laguna activist Penny Elia on Nov. 13.

City officials do not plan to apply for a coastal development permit, contrary to a commission staff advisory forwarded to the city Nov. 13. The city disputed the commission’s determination Tuesday, communicated to Sherilyn Sarb, commission deputy director for Orange County, with thanks for her invitation to respond to the commission contention that a permit is required.

“First of all, the ordinance does not constitute ‘development’ for purposes of the permit requirement,” City Manager Ken Frank wrote. “Second, even assuming the ordinance constitutes ‘development,’ the ordinance is exempt from the permit requirement.”

“The ordinance clearly does not effect a change in the density or intensity of the use of land, nor does it effect a change in the intensity of use of water or of access thereto. In this regard, you should review the specific exceptions from the closing time, which exempt ‘wet sand’ activities, the ability to come and go to the ‘wet sand’ by the most direct safe route, and other activities expressly permitted by reason of state law.”

Frank said that Laguna’s ordinance was patterned after one in Long Beach, which also does not prohibit access to public waterways. He enclosed a copy of the Long Beach ordinance, along with an article in which commission Executive Director Peter Douglas was quoted as confirming that it did not constitute development requiring a permit.

“Furthermore,” Frank wrote, “the city contends that even if its ordinance establishing closing times is assumed to be ‘development’ for sake of discussion, a Coastal Development Permit is not required inasmuch as the ordinance was deemed necessary to abate documented public nuisances and public safety problems relating to city beaches and parks.”

City officials also do not believe the city must obtain Coastal Act authorization for the curfew.

The Beach Curfew Guidance document of 1994 spells out steps that must be taken in passing a curfew and the exemptions for public safety, which must be balanced with beach access.

Illegal activities cited

The city had previously provided the commission with documentation of more than 50 calls for police services to downtown beaches and parks between April and September.

“These calls include responses to reported stabbings, kidnapping attempts, assault and battery, endangered children, public intoxication, illegal drug use, theft, vandalism, and other illegal activities,” Frank wrote.

The letter also documents more than 80 e-mails from persons complaining about the use of beaches and parks for camping, lodging, and the storage of personal belongings.

“These activities are a significant public safety concern and therefore the City Council has formally declared them to be a nuisance.”

Letters and articles from residents and the business community about the perceived abuse to and on the beaches and in the parks were also documented.

Violent, illegal or annoying activities by the homeless population camping on downtown beaches and parks were dramatically reduced when the alternative sleeping and eating location was opened at ACT V, although enforcement continues downtown and in other neighborhoods.

“Although the implementation of the sleeping site was a success in the short term, the city is concerned about the possibility of illegal activities returning to the parks and beaches, especially in the summer,” Assistant City Manager John Pietig said.

However, city officials have stated that curfew is not directed at the entire homeless population nor to a specific area of town.

Frank said when the curfew was first introduced that Top of the World and Arch Beach Heights residents were complaining about late-night activities at Alta Laguna and Moulton Meadows parks.

Frank maintains that legal counsel backs up its contention that abatement of such nuisances is a key responsibility of local government and is permitted by law.

“Your letter recognizes that the Coastal Act is not the exclusive law governing public access and the uses of beaches, parks and other public places,” he wrote.

Frank’s letter, also acknowledged that the Coastal Commission and the city, along with other agencies, share common goals in protecting beach access while ensuring public safety.

“We will continue to work with the commission to see if there is an expeditious way to resolve its concerns,” said Pietig, who has been the city’s spokesman on issues related to the public’s perception of abuses on and to city property.

Appeal deemed ‘not filed’

In a letter dated Nov. 20 to Elia, and released by her to the media, Karl Schwing, commission supervisor of regulation and planning for the Orange County area, apprised the South Laguna resident of the commission’s position on her appeal.

“Although the city has taken action to adopt an ordinance, and that ordinance in effect in the coastal zone and within an appealable area, we don’t believe this action, per se, is appealable at this time,” Schwing wrote.

“Instead our position is that the city must obtain a Coastal Act authorization in the form of a local coastal program amendment and/or a coastal development permit from the commission prior to the ordinance being effective in the city.”

Schwing advised Elia that absent city action on a coastal development permit, the commission does not consider her appeal as filed.

If the city takes action that the commission considers appealable, Elia will be asked to confirm in writing her desire to activate the appeal, at which time it will be considered filed.

In a press release dated Nov. 23, Elia said the council’s approval of the curfew ignored pleas from its constituents not to impose a curfew and also ignored the provisions of the Coastal Act and due process.

“The city continually attempts to circumvent the Coastal Act and exceeds its authority and jurisdiction in the coastal zone, while also violating the Public Trust Doctrine from Roman and English common law assuring ownership, protection and use of essential natural resources common to all people,” Elia wrote.

“This legal doctrine assures certain unalienable rights are reserved for the common use and benefit of the public in perpetuity. Title 10, Section 4 of the California Constitution memorialized the Public Trust Doctrine related to state tidelands and assures all people ‘maximum coastal access’ and carries no hours of operations for tidelands or beaches. Coastal access equity was a requirement for California to enter the union in 1850.

“California’s coastline is 1,100 miles long with 450 beaches that face the Pacific Ocean. The people of California are assured they have universal public access to their shoreline and every local coastal jurisdiction must guard coastal access rights assured by both the California Constitution and the Coastal Act.”

Beach access versus fishing rights

Asked about Elia’s reference to “coastal access rights,” Mayor Kelly Boyd, who was nominated at a recent League of California Cities meeting for a seat on the Coastal Commission, said he assumes Elia’s comments would include fishing.

“However, I do not expect her to support my nomination,” Boyd said.

Boyd, the lone vote on the council against the closure of all city beaches to fishers, supported the curfew, a version of which he had introduced in July, but pulled off the table due to public opposition.

The curfew will go into effect Dec. 5.