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Environmental attorney bills city in lawsuit over Fourth of July fireworks

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By Dave Schwab

daves@lajollalight.com

Environmental attorney Marco Gonzalez is seeking $756,132 in reimbursement from the city for court fees incurred suing the municipality and a nonprofit La Jolla group over alleged improprieties with permitting and environmental regulations for Fourth of July fireworks displays.

“Attorney fees total $350,000 and we asked for a multiplier which is routinely granted in cases like this for work we’ve been doing since June 2010,” said Livia Borak, an associate at Coast Law Group, which sued the city and nonprofit La Jolla Community Fireworks Foundation, contending the city inappropriately issued a permit for the Foundation’s annual July 4 fireworks display at La Jolla Cove.

“Those fees are not inflated,” said Borak. “These are the hours we actually spent litigating this case.”

Borak said the mission of the Coastal Environmental Rights Foundation (CERF), the nonprofit environmental group

Coast Law is representing, is to “broaden coastal access for everyone and protect water quality,” adding litigation is a tool to accomplish that end.

“We took this case on contingency, and if we had lost, we wouldn’t have seen a dime,” said Borak. “But we won. That’s the only reason why we’re able to ask for attorney’s fees.”

Coast Law also is contending its legal action challenging the city’s existing permitting and environmental regulations for hosting fireworks displays over water constitutes a public benefit.

“We brought to light that the city was unlawfully permitting (fireworks) events every year without doing environmental review,” she said adding, “There’s no reason why taxpayers should be paying for private-entity fireworks.”

Deputy City Attorney Glenn Spitzer said the city will contest fees being sought by Coast Law Group and Marco Gonzalez. He addressed the environmental law group’s contention that their side has prevailed, and that the case benefited the public.

“This is still a live dispute in that the court of appeal will have the final say on the issue of prevailing party,” Spitzer said. “The City will argue that Marco did not accomplish his primary goal of shutting down the La Jolla Cove firework show. He did not confer a significant benefit on the general public, and his fees are unreasonable.”

In August 2011, the City Council voted 7-1 to appeal a Superior Court ruling that the Parks and Recreation Department must follow state environmental guidelines when issuing permits for fireworks shows.

Fireworks organizers claimed following state guidelines would be prohibitively expensive and put them out of business. The city argued those changes would severely increase staff workload.

Judge Linda Quinn, who issued the ruling favoring Gonzalez, stayed her order to give city officials time to determine how they would comply.

Noting the court ruled the park use permit to host a fireworks display is discretionary and therefore subject to environmental review, Spitzer replied that the city has always treated this permit as a ministerial permit (meaning the city is without discretion in issuing it) adding ministerial permits are not subject to environmental review.

“To rectify the issue, City Council voted in favor of park use permitting amendments on Oct. 11 intended to ensure the process remains ministerial,” he said.

Spitzer added the city has also always maintained that stand- alone firework shows (those not involving food and alcohol) do not require a special event permit, a point CERF attorney Marco Gonzalez has challenged.

“The city passed an amendment to the Special Event Ordinance on May 24, 2011 that clearly exempted stand-alone firework shows from the ordinance,” Spitzer said. “Therefore, stand-alone firework shows now clearly do not require a special event permit, which is a discretionary permit and potentially subject to environmental review.”

Gonzalez has challenged the May 24, 2011 amendments in a separate lawsuit.

Environmentalists are contending fireworks harm sea life in nearby La Jolla Cove, which lies within the protected San Diego La Jolla Underwater Park Ecological Reserve. They ultimately are seeking more extensive environmental review — at much greater cost — in the permitting process to fireworks events over water.

Concerning Gonzalez’s motive in challenging Independence Day coastal fireworks, Deborah Marengo, spokeswoman for The La Jolla Community Fireworks Foundation said, “From the beginning, he has always been about the money and not about the environment.”

A court hearing on Coast Law Group’s bill to the city for collecting attorney fees has been set for Friday, Nov. 18 at 1:30 p.m. in Judge Quinn’s courtroom, Department 74.