Letter to the Editor: What Does SB County Counsel Have to Hide on Sable?

A former Coastal Commissioner and ex-senior attorney in the Santa Barbara County Counsel's office asks tough questions about the kid glove treatment given oil company's bid to restart failed pipeline

By Jana Zimmer

To the Editor Re: “What’s Behind County Planning’s Fumble on Sable” (Newsmakers 12april25)

"The first thing we do, let's kill all the lawyers” Shakespeare, Henry VI, Part 2.

Few of us know that Shakespeare was, in fact, referencing the importance of attorneys in maintaining the fabric of society. Lately, thousands of lawyers thankfully have stepped up to challenge the fascists in power in Washington; sadly, there are many who enable them.

Although all politics is ultimately local, this is a useful lens for examining the failures of the County of Santa Barbara and their lawyers, and more specifically, the failed relationships among the lawyers, administrators, planners, and politicians who rely on their legal advice - sometimes for “cover” (even when it is simply wrong) - to address matters of public policy, sometimes consequential, sometimes not obviously so.

Agree with them or not, my observations and impressions are supported by almost 40 years of experience in Santa Barbara: as Chief Deputy County Counsel for land use and an appointed member of the County Air Pollution Control District Hearing Board; the County Tax Assessment Appeals Board; the County Arts Commission; and most recently, California Coastal Commission (aghast, sometimes, at witnessing some of the petty politics that infected their “quasi-judicial” process).

What the law says. It is required by law that decisions on land use projects - including oil and gas projects such as Sable - and appeals, even from so called “ministerial” permits, are required for the most part to be made in public, after a public hearing, with notice and opportunity for all sides to be heard.

The decision makers are required to act based on a majority vote, and based on information they receive either in public, or if based on information that is received in private, is properly disclosed (ex parte declarations). These are some of the elements of the now-quaint notion that - home owners, developers, environmental groups - are entitled to due process of law before our rights are abridged.

In regards to the Sable oil matter, I first of all would love to see how or whether the FPPC specifically analyzed Supervisor Joan Hartmann’s alleged insurmountable conflict under Reg 18701(b). The devil is in the details.

Had she but voted on Sable at the board, we would have been spared the ambiguity of a 2-to-2 vote on a crucial question of the transfer of permits for the disputed pipeline.

To my knowledge, the Hartmann letter never became public, and I could not find it on the County or the FPPC website. What I do know as an attorney is that the question you ask sometimes dictates the answer you receive. Did County Counsel help her draft her question to the FPPC? They are allowed to do that.

A well-deserved drubbing. As to last week’s proceedings at the Coastal Commission, County Planning received a well-deserved drubbing in the Coastal Commission staff report.

However, neither planning staff nor County Counsel even showed up at the hearing to defend the Board’s decision. Their claim: they were not “specifically” invited.

Yet Planning and Development was represented at the next item - the appeal involving the housing proposed at the Miramar on the Miramar. (Had it not been for Sable, Rick Caruso’s project would have been the most consequential of the day. But I digress).

Key questions: Was County staff “advised” not to show up by County Counsel for the Sable item? Directed to do so by the Board?

The single most aggravating “position” asserted by the County staff in the Sable enforcement proceeding was the assertion that the damage to environmentally sensitive resources was not a violation of the Coastal Development Permit (CDP) because… the County had “settled” (given away) their right to enforce and require a separate CDP decades ago. Who knew? Really, who knew?

The specific contents of that settlement were not disclosed.

The value of history. I (and a few other elderly survivors) remember that the Board adopted a policy, in the late 1980’s, that required such settlement agreements - particularly in oil and gas matters, to be presented in a public hearing, prior to agreement, specifically so that the County was not contracting away its future police power, which they legally cannot do.

I don’t have access to Board hearing records that far back, but the County does, so for current officials to claim not to ‘remember’ their own policy is not a good answer.

These same officials will likely claim not to “remember” that, on the advice of the County Counsel’s office (that would be me) the County did indeed require a separate CDP for oil tankering, notwithstanding that Chevron’s approved Development Plan contemplated oil transportation.

The Board of Supervisors, in an embarrassing moment of sleepy disarray, actually approved that very CDP to allow tankering at a very late nighttime hearing in May of 1989, only to see it revoked on appeal by the Coastal Commission, as reported in the Los Angeles Time, 10November1990.

Unanswered questions. I see a direct parallel in County staff’s erroneous legal position, now, that “repair” in environmentally sensitive habitat did not require a CDP, because this was all “settled” in a nonpublic agreement. The permit requirement is in the Coastal Act and the Local Coastal Program.

So, the questions in my mind are:

• Did Planning and Development decide for themselves what the “law” is – they do claim the right to ‘interpret’ their own ordinances?

• Did they ask County Counsel for a legal opinion on this question prior to taking action? If so, did they receive one?

• If they did, what legitimate purpose does it serve to keep it “confidential,” when the key issue in the case has allegedly been addressed? If they received an opinion they didn’t like, and ignored it…well, another kettle of contaminated fish, altogether.

• If the County continues to rely on their decades-old “settlement” with the oil industry, what policy justification is there to continue to keep that confidential? Or the terms of Sable’s insurance policy. All trade secrets?

I respectfully suggest that covering, let alone continuing to defend their staff’s or their lawyers’ mistakes – if they occurred- is not a good public policy position for the Board of Supervisors on any issue, let alone one of such public importance.

Pathological wagon circling. The County’s circling of the wagons against the public - and the public interest - has become pathological. But it is not just who, if anyone, is held accountable, at the ballot box, or “let go” for conduct unbecoming.

It is about taking clear steps to change the dynamic within the County structure among Planning and Development, other departments with a role in the permit process, County Counsel and the Board; and it is about transparency, and restored integrity in the process.

I have ideas, the first of which is for the County to recognize that the due process clause and the liberty clause of the California Constitution apply to them in the conduct of their business.

The second, specifically, is to restore the policy that the Board approved, and never, to my knowledge, expressly rescinded, to disclose and hold public comment on proposed settlement agreements - especially those brought by the big money law firms they seem so afraid of.

Land use attorney and artist Jana Zimmer served on the California Coastal Commission from 2011-15 and in the Santa Barbara County Counsel’s office from 1986-91.

Image: Protest sign opposing Sable Offshore Corp.’s effort to restart the ruptured pipeline that caused the 2015 Refugio Oil Spill.