County Tightens Measure P Nuts and Bolts

Planning Commission Approves Procedures Around Takings and Vested Rights

A split vote by the County Planning Commission this week echoed the split sentiment expressed by oil industry representatives and environmentalists regarding exemptions to Measure P should voters okay the initiative in November. The measure would outlaw all new fracking, acidizing, and cyclic-steaming projects in the county’s unincorporated areas, but it allows the county to outline procedures for handling claims of constitutional violations, takings, and vested rights. Wednesday’s meeting marked the third hearing since the Planning Department began seeking input last month; the Board of Supervisors will have the final say on the procedures in early October.

The commission voted 3-2 in favor of the proposed procedures, which involve the Planning Director weighing vested rights claims — decisions would be appealable to the Planning Commission and then the Board of Supervisors — and the supervisors judging takings case. The commission tacked on a suggestion that it have the first say over takings claims, as well as a recommendation (previously voiced by the Montecito Planning Commission) that the public be made aware when exemptions prove successful. Takings claims would be required to come with an application for a development project, both of which the supervisors would hear within six months. Vested rights exemptions would be determined within two months. All companies with claims submitted would be allowed to continue their operations during the decision-making phase.

North County commissioners Larry Ferini and Daniel Blough based their “no” votes on the $5,000 deposit charged to applicants for vested rights claims — which county planners said would cover a couple of months’ worth of work — and on the overall nature of the protocols. Blough said the process was “done way too quickly” and left “too much uncertainty” for operators. “I think it’s wrong that we’re being forced into this ahead of time,” said Ferini, reiterating industry officials’ allegations that implementing the protocols ahead of the election forecasts the initiative’s passage.

Representatives from Santa Maria Energy, Pacific Coast Energy Company, and ERG Operating Company — accompanied by letters from their lawyers — said, as they have at previous meetings, that the protocols do little to assuage industry fears about what the measure’s passage would mean for their operations, and that they won’t head off lawsuits. “While these ordinances may put a veneer of a framework in place, they do nothing to lessen the legal issues inherent in the initiative,” said Beth Marino, vice president of legal and corporate affairs for Santa Maria Energy. “The ordinances also do nothing to absolve the county and its citizens of costly liabilities.”

Conversely, Measure P supporters said the ordinances would provide greater certainty about the initiative’s reaches. “I think the theme of my testimony is: No good deed goes unpunished,” said Linda Krop, chief counsel for the Environmental Defense Center, which is backing the measure. The protocols, Krop said, would mean an “efficient, expeditious county process instead of lengthy, costly litigation.” Krop, along with many other proponents, suggested that a clear definition of vested rights be included in the protocols.

According to the law firm Shute, Mihaly & Weinberg, which helped write Measure P, there are two hypothetical situations that illustrate the concept of vested rights. One involves a property owner who has completed “substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government.” The other comes when an operator can demonstrate a “legal nonconforming use,” meaning an action allowed prior to a zoning restriction.

Deputy County Counsel Bill Dillon explained that, with regard to vested rights, companies wouldn’t be required to make claims but could if they wanted to for extra certainty; if an operator felt their project was fully vested, they could continue their work without going through the county. Assistant Planning Director Dianne Black said that such operators would only be investigated if complaints were made.

Commissioner Michael Cooney agreed with his colleagues that the Planning Department had drafted the protocols with “considerable haste,” but that they had no choice with November just around the corner. “All we can do is try to make it better for the industry and the public to have a more clear pathway than existed in the initiative,” Cooney said. “I think it’s a step in the right direction.”


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