Legal challenges mean issue likely isn’t settled

Supporters of EarthFair in Balboa Park, one of the country’s largest Earth Day celebrations, feared that the city’s new rules for park use could squeeze out the longrunning event. — Eduardo Contreras

October 10, 2011
San Diego Union Tribune
By Mike Lee

What started as an attempt by San Diego to minimize permitting requirements for fireworks displays and other events expanded Tuesday into a debate over the popular EarthFair celebration in Balboa Park and public access to city open spaces.

In the end, the council approved permit changes 5-2, with Todd Gloria and David Alvarez in opposition. The key element was altering city code to clarify that the vast majority of park-use permits are routine — not up to the discretion of parks officials — and thereby don’t need reviews under the California Environmental Quality Act, or CEQA.

That bodes well for the La Jolla fireworks show that sparked the fracas, but the issue remains far from settled in the face of existing lawsuits and appeals challenging the city’s plans.

Prevailing councilmembers said concerns raised by the ACLU should be addressed and council president Tony Young said other complications will be handled when the bill gets a second reading in a few weeks. Councilmembers also sought assurances from parks officials that the EarthFair would not be forced out.

“It started with fireworks and now is something much larger,” Gloria said. “It’s getting more complicated by the second.”

The tangle of proposals, appeals and related lawsuits is the outgrowth of challenges to Independence Day fireworks shows that Encinitas attorney Marco Gonzalez and the Coastal Environmental Rights Foundation have contested in court the past two summers.

Gonzalez argues that fireworks shows need CEQA reviews. He’s already filed an appeal with the City Council that says the city violated state law by not producing an environmental impact report about the park-use changes adopted Tuesday.

City officials said their proposal is exempt from CEQA, as are the vast majority of the 15,000 permits they issue for birthday parties, fireworks shows and other events at city parks.

The potentially costly and time-consuming CEQA process is triggered when the city has discretion over issuing a given permit.

San Diego revised its permit language in May to avoid forcing CEQA reviews, but Superior Court Judge Linda Quinn said the document still left too much leeway for city officials and therefore park-use permits were subject to CEQA. She then stayed her ruling so that the annual July 4 fireworks show in La Jolla could go on.

On Tuesday, the council gave its initial approval to another version of the language that said park-use permits will be issued if there is room for the expected crowds at the requested site, with some exceptions. For instance, the ordinance says no reservations will be granted for new special events in the most popular spots, such as Mission Bay Park, during a summer “moratorium.” Some events, such as San Diego Pride Festival and the Rock-and-Roll Marathon, are grandfathered.

City officials said they were trying to codify a long-standing practices, but in the process they upset many supporters of the annual EarthFair.

Under the new capacity limits, EarthFair backers fear they could be squeezed out. The event draws about 60,000 people a year and organizer Carolyn Chase told the council that its future was unclear in light of the changing rules.

Chase was relieved after assurances by councilmembers that want EarthFair to remain at Balboa Park, where it’s been for more than 20 years, but the entire process left her wondering why the city hadn’t widely distributed its capacity limits for each park so that event organizers could see where they stand.

The City Attorney’s Office on Tuesday said the complete list of park capacities would be ready when the council takes up the issue again, likely in the next few weeks.

During Tuesday’s hearing, several speakers urged the council to hold off making a decision. Their overarching concern was that parks officials had made arbitrary decisions about the capacity of parks and which events were grandfathered into certain sites.

“The cure you are being asked to approve is worse than the disease,” said San Diego lawyer Cory Briggs, who represents the community group “What you have done today from a constitutional standpoint is picked winners and losers and you are not allowed to that.”

David Blair-Loy of the local ACLU chapter echoed those concerns, saying the city’s language raised “significant First Amendment problems” by appearing to favor some groups for assembling in parks.

Others, including organizers of youth baseball and fireworks shows, supported the city’s code changes, saying they can’t afford to go through environmental reviews that would be required without them.

“Events like ours would go away,” said Robert Howard, a lawyer for the La Jolla Community Fireworks Foundation.