Archive for January, 2013
January 1st, 2013
I have spent a long time detailing in my blog all the ins and outs of my attempt to get a permit to build my house at Avila Beach. Here is a quick summary of the most important events:
January 10th, 2013
January 10th, 2013 was my hearing in front of the full Coastal Commission, three years after my wife and I originally applied for a minor use permit to build a house at Cave Landing. The hearing was in the Veterans Hall in Pismo Beach, about 2 miles from our current house in Avila Valley, and a little further from the proposed house at Cave Landing.
It was an interesting, if not particularly fun experience. Judi and I sat in the audience, along with Dave Watson, Bonnie Neely, Greg Sanders, John Flynn, Rick Gorman, Lenny Grant, Robert Malone, Jeff Emrick, and Todd Smith.
Leading up to the start of the hearing we were doing some fast horse trading with Dan Carl of the Coastal staff. The horse trading was over public access to my property – which hadn’t been an issue with the Coastal staff at all until two weeks ago. One edge of my property is on Cave Landing Road, and that is fenced with a locked gate and marked “No Trespassing”. Bob Howard originally put up the fence (he thinks) about 35 years ago. Recently people have been jumping over the fence on the lot next to mine, crossing to my lot, and then hiking up the very steep cell phone company easement road to the top of Ontario Ridge (which I also own).
There are five problems with unfettered public access to all of my property at Cave Landing Ranch:
1. Privacy. I do not want people hiking up and down on my driveway, or anywhere else at all they might want to go on my property, without me being able to restrict them at all. Nobody would want that at their house. I own 37 acres – surely the Coastal Commission would let me keep some of it private?
2. Fencing. I need to be able to fence at least part of my yard. My wife has two dogs, and they will run away without a fence, and then my wife will be inconsolable. This is not good.
3. Dangerous Trail. Once past my 500 ft. long driveway, the cell phone easement road (that the Commission wants as a public trail) turns into a steep climb for about 800 ft. that is very dangerous. I don’t want people to be hurt on this steep hillside, especially when there are good alternate routes nearby.
4. Liability. I am legally liable for anyone who gets injured on my property. Because of the steep trail this is a very real possibility.
5. Potential new visual impacts. This is actually the biggest problem. Right now the Coastal Commission claims that I need to hide my house from anyone on public trails, public roads, or the proposed (but nonexistent) public parking lot. I am afraid that this will be expanded to include my own driveway, since the Coastal Commission wants that as a public trail. It is impossible to hide a house from it’s own driveway.
We ended up making a deal with Dan Carl we could live with and support right before the actual hearing started. I am told that is is very normal to do. So going into the hearing both sides were satisfied with the additional ”Special Conditions” to my permit that the Coastal staff was recommending that the Coastal Commission approve. And then the actual hearing started a few minutes later …
First we did the Vested Rights issue with my access to CSA 12 for water. The Commission hated our argument, and we lost completely. However, I think my legal argument is actually really good, and I will probably pursue it in court. Here is my post about this Vested Rights argument. Losing this meant that I had to use my water well instead of CSA 12 for my house. OK – I can live with that, but it isn’t ideal.
Next the Commission took up the appeal of my minor use permit. The Coastal staff gave a pretty reasonable presentation of the overall issues, and then Dave Watson gave a short presentation about how I wanted to use 8600 sq. ft. for the building pad, and the Coastal staff wanted us to use 5500 sq. ft. instead. If I could use the 8600 sq. ft. then I could build the house pretty much as it was designed and permitted by SLO County. The smaller 5500 sq. ft. pad meant that I would have to extensively redesign (which is a big problem).
It was about 12:30 pm by then, so the Commissioners broke for about 40 minutes for lunch.
After lunch then there was a public comment period. 15 people spoke, each for 2 minutes or less, some supporting me, some talking about the public trail issue, and some comments made about Indian rights, and the spiritual essence of the native land, and then some people were just confused about what we were talking about. Dave gave a very short rebuttal (less than 2 minutes) and then it was the Commissioners turn.
The Commissioners spent a lot of time on the public trails issue, and they had a hard time understanding my position. That is partially my fault, and I didn’t make my argument clearly, but it is also the fault of the Coastal staff, since this issue had only been raised by the staff two weeks ago.
The Commissioners seemed to be angry that I had even brought up the earlier vested rights argument, and they spent some time complaining about that.
Commissioner Steve Blank had read my blog www.sloleaks.com, and he didn’t like that I had criticized the Coastal Commission and the staff publicly. He read portions of my blog into the record, and he spent some time lecturing me about my intellectual and ethical inferiority. He may be right, but I personally disagree.
Commissioner Esther Sanchez asked the staff if there was a way to force me to give my property up for a public trail. The Coastal staff explained that I was willing to give my part of my property for a public trail, but that I was unwilling to give my my driveway, and that there was no legal way for the Commission to force me to give up my property if I didn’t do it voluntarily. Ms. Sanchez then lectured me on my lack of public spirit. I honestly think that she didn’t understand the situation in full, and had I had a chance to explain she would realized that what I am doing is entirely reasonable. Unfortunately the way the Coastal process works I could not respond to her.
Commissioner Wendy Mitchell also criticised my understanding of the Coastal Commission process, saying that the Commissioners represent all the people of California, and thus my narrow legal property rights had to be balanced against her more complete understanding of the interests of the public. Ironically, while she was lecturing me about my understanding, she was making the point about the Dunning-Kruger effect. I think after a short, calm, quiet conversation between Wendy and me could have been able to understand each other’s point of view, and her issues would have been resolved.
My lawyers were sitting right behind me, and I could hear them gasp during the Commissioners various lectures of me. Afterwords they couldn’t believe how composed and unaffected I was by the unjudicial conduct of the Commission. Personally, I couldn’t care less if the Commissioners want to call me names. I just want to build my house and live there quietly. If I have to be called names in public to get a permit then so be it.
I said nothing during the entire 2 1/2 hour hearing.
The Commissioners voted 7-3 to deny the permit (mostly citing the size of the house), and we left the hearing. We went to a local bar and had a few drinks, even though it was only 3:00 pm, and I don’t normally drink alcohol. It had been a very hard day.
I am now waiting for the formal Coastal staff “Findings”, which could take quite a long time for them to produce. Until then I don’t know the actual legal reason that my permit was denied, although I am sure it will have something to do with visual impact and the size of the building pad.
I thought that the Coastal staff did a very professional and a pretty fair job, all things considered. Dan Carl was trying a fashion a deal that would work for both sides and was reasonable. I spoke to Daniel Robinson for the first time ever, and he seemed like a very nice young man that had been put into a difficult situation. I wish both of them well. The Coastal legal staff was particularily smart and professional, and I would love to talk to them off the record someday when this is all over.
Of course I am discouraged, but I have so much financially at stake that I must continue on trying to get a permit. Because of the Coastal process I now have to start back at step one and re-apply to the SLO Planning Dept for a minor use permit. The first time though it took three years, so who knows how long it will take, and if I can ever even get a permit. If I can’t eventually get a permit then I will have lost about $3 million (and counting).
After me was the hearing for Vaughn and Mary Ann Koligian, who have been trying to get a permit to build a house on their lot in Pismo Beach for the last 8 years. And no, that is not a typo. Eight years just trying to get a permit!
January 12th, 2013
One of the blogs that I regularly follow is www.powerlineblog.com. Founded by a couple of very smart lawyers, Powerline covers current issues from an intellectual legal viewpoint. So instead of ranting and name calling (which I detest), they relate issues back to historical trends, the differing views of the Founders, Federalist papers, and the arguments of various leaders of intellectual movements. The Powerline writers are always respectful of the differing opinions of others, and they try to represents other people’s views fairly.
And so today I was reading the current blog post, When Does the Nanny Become a Despot, and I ran across this (partial) paragraph:
“Sure, am I really less of a free person if I can’t buy a 32-oz soda? Or get a plastic bag in my local store? In isolation, not really. But what about when I can’t buy a 32-oz soda, can’t burn a fire in my home’s fireplace (now an air quality regulation in many places), can’t build a spiral staircase from my back deck (as I learn this morning from the San Luis Obispo County planning department), can’t own a gun (New York, Chicago), can’t get plastic bags at the store any more (even though I not only recycle them but reuse them for many of my own purposes), can’t patronize Ubercars because the incumbent taxicab monopoly gets the city council to block the new business in the name of “consumer protection” (naturally), or can’t start a small business except with great difficulty and dead-weight expense to the local bureaucracies?”
And when I saw that I realized OMG – one of these guys lives right by me in SLO County. What a small world!