By Pat Sherman
It appears that La Jolla’s Fourth of July fireworks will proceed as planned, despite an- other legal challenge from environmental attorney Marco Gonzalez, who says the city’s practice of routinely granting permits to the organizers of pyrotechnics shows con- flicts with its municipal code, which calls for scrutiny of park use permits — including costly environmental reviews.
In a statement released June 18, San Diego Superior Court Judge William Dato affirmed his June 14 tentative ruling against the city on two related counts. His ruling invalidated last year’s city code amendments designed to avoid assessments of fireworks under the California Environmental Quality Act (CEQA), and said San Diego also erred by not conducting an environmental review of those amendments.
A statement released by the city attorney’s office in response to the ruling said “applying CEQA in this manner is unprecedented.”
“The judge’s decision precluded the city from adopting an ordinance that sets out a permit process no different than many other cities and consistent with the city’s histori- cal practice,” the statement read.
Dato issued a stay on his ruling through Sept. 7 that basically clears the way for La Jolla’s event and carries San Diego through the summer fireworks season.
Robert Howard, a lawyer for the La Jolla Community Fireworks Foundation, is urging the city to appeal Judge Dato’s rulings, saying they could significantly delay the city’s ability to issue permits for everything from street fairs to non-profit fundraisers. Conducting an environmental impact report on fireworks shows could take 12 to 18 months, the city estimates.
Despite environmentalists’ plans to issue a temporary restraining order on this year’s event, Howard said he is confident they will not have enough time to do so.
“The threat that there’s going to be a tem- porary restraining order is overstated,” Howard said. “It was tried two years ago, and that was before the state granted us a permit to put on the show at Ellen Scripps Park.
“The state has approved the specific location at which we operate ... (and) has since weighed in and said there’s no evidence of environmental harm from fireworks. So, it can be undertaken exactly where it’s been undertaken for the last two decades.”
Speaking with the
La Jolla Light
last week, Gonzalez said he has a message to send the city, which he planned to unveil this week during council testimony.
“We’re not 110-percent sure whether we’re applying for a temporary restraining order or taking some other action,” he said. “The city lost three lawsuits and the events have taken place illegally twice before, so we’re factoring that into all the other variables when we decide what we’re going to do.”
Gonzalez, of Encinitas-based Coast Law Group, said he and his nonprofit group, CERF, are seeking three things in La Jolla.
“One, we want an environmental review — that’s what the law requires,” he said. “Two, we actually want the show moved. There are a lot of places in La Jolla where you could do a fireworks show where it wouldn’t be on a bluff next to a sensitive habitat — go to La Jolla Country Day School, go to La Jolla High School, get it off of the water.”
Gonzalez also suggests that fireworks organizers erect a protective barrier over the edge of the water to prevent explosive material from getting into the cove, though he said he has not seen an example of such a barrier used for fireworks displays.
“I’m a smart guy,” he said. “If I’m down at the edge of the water and I’m a sensitive critter and I don’t want a bunch of flaming sh*t flying on my head, what could I do? Put up a chain-link fence, 20 feet high, 50 feet long, (with) a flame retardant fabric on it, (which is) relatively inexpensive and readily available on the commercial market. ... On some level, I just think we’ve got laziness and people who are really unwilling to admit that what they do has a bad impact on the environment.”
Gonzalez said the main impacts to the environ- ment from fireworks shows are noise, light and pollutants.
“At nighttime when you shoot off a bunch of really loud bombs, that are really, really bright, the birds abandon their nests, the marine mammals flee into the water,” he said. “At the ground level you have cardboard, paper, fuses, a whole bunch of stuff that gets strewn about a 300-foot area, including directly into the water.
“We’ve proposed a million different ideas to the La Jolla Community Fireworks Foundation and to the city, to no avail. They’ve not offered one single thing in terms of settlement or making the show more environmentally appropriate — not one.”
Deborah Marengo, director of the La Jolla Community Fireworks Foundation, balked at Gonzalez’ suggestion that the fireworks should be moved to an alternate location.
“I really don’t see why it’s up to him,” said Marengo, who formed the foundation to maintain the fireworks show after George’s at the Cove owner, George Hauer, could no longer afford to produce it.
“Since 2009, the people in this community have been contributing anything they can give to ensure that the event still goes on at La Jolla Cove,” Marengo said. “When I have to (consider) one person trying to dictate to La Jollans where they should celebrate their Fourth of July ... I don’t think there’s even a decision or a discussion to be had.”
Marengo agreed that the CEQA review of fire-works shows Gonzalez is seeking could have wide-ranging effects that would prohibit many civic events from occurring.
“The regulations that Mr. Gonzalez would like to impose on the La Jolla fireworks would mean a city- wide change, and that citywide change would then require a CEQA review of every park use and special use permit in any park or public right-of-way in the city of San Diego,” she said. “Now it’s not just about fireworks. It is about the La Jolla Marathon, it is about the Rock ‘n’ Roll Marathon. All these non-profits that try to raise money for their cause will now have to go through an environmental impact review that will cost upwards of $100,000.
“You take the La Jolla Fireworks show at $27,000 and you now tack on an additional $100,000 a year for us to do an environmental impact report and it will go away — and most of the events that take place in the city of San Diego will probably go away. The overall effect that that will have on the City of San Diego in terms of tourist revenue and sales tax is endless.”
Howard said Dato’s decision was in response to last year’s ruling by San Diego Superior Court Judge Linda Quinn (Judge Quinn retired on Feb. 29, 2012) who ruled that all city-permitted events were subject to CEQA review. Dato ruled that before the city could amend its code to exempt fireworks shows, those amendments were subject to CEQA review.
“I think the reason the Judge Dato stayed his de- cision is because the court of appeals has to rule on Judge Quinn’s order,” Howard said. “If the court of appeals says Judge Quinn was wrong and none of these events are really subject to CEQA, then Judge Quinn’s ruling makes no sense. ... The city is free to continue to permit the way it’s been permitting and if the judge decides that he somehow wants to lift the stay in September, then the city is free to appeal that. Basically, these legal rulings are out there, but the court of appeals has to weigh in first before they’re going to have a practical effect on the way things are done.”