2003 CPEO Military List Archive

From: CPEO Moderator <cpeo@cpeo.org>
Date: 17 Jan 2003 16:59:20 -0000
Reply: cpeo-military
Subject: [CPEO-MEF] NTC 30 foot height ruling: Miami Beach cometh
[Posted by John McNab: <saveourntc@yahoo.com>]

30 Foot Height Limit ruling - another step towards Miami Beach

After determining that citizens have no right to sue to protect
government land gifted by individuals for public purposes in the NTC
Fletcher Case, Appellate Judges McIntyre and Nares were joined by
Justice Judith McConnel for another Naval Training Case.  This time, the
30 foot Height Appeal.  At stake was whether coastal 30 foot Height
busting downtown- style development would be allowed to extend up to
Rosecrans Street.

Three issues were to be decided on appeal.  First, whether the suit had
been brought in a timely manner. Second, whether the Naval Training
Center property was subject to the 30 Coastal Height Limit.  And third,
whether Corky McMillin had spent so much money that he was entitled now
to build over 30 feet (latches).

The appeals judges decided that the case had been brought in a timely
manner, allowing the merits of the case to be heard.

The judges first talked about how the - highest and best use - of the
property was the primary consideration for base reuse.  The judges
indicated that the reuse plan was the overriding factor for determining
which laws would apply.

They followed by stating that: - the determination of the appropriate
use for base property is made pursuant to federal criteria and is
not necessarily limited by existing local zoning regulations. -

Further, the judges stated: - State law also establishes that local
zoning ordinances are not automatically applicable to surplus base
property transferred by the Federal Government to State or local
entities. -

The California Government Code cited were 65050, 67813, 67812, 67840 and
67842.  The appellate ruling stated that these: - grants the City, in
its capacity as the reuse authority, broad powers to plan for, finance,
and manage the transition of (the applicable base
property) from military to civilian use.  Those powers prevail over
those of any local entity, including a City or County.  The Local Base
Reuse Authority has the power to certify only those portions of a City
or County General Plan that are consistent with the Reuse Plan as
applicable to the base property . . . and to reject the application to
base property of any zoning ordinances that do not conform with the
general plan, or portions thereof, so certified.  Further, in any
transaction involving the transfer of the base
property, state law requires the local base reuse authority to fully
honor all conditions, requirements, and understandings with the federal
government with respect to the use and disposal of that property. -

_From this logic, the Judges rules that: - the Federal Government’s
transfer of the surplus NTC property to the City did not trigger the
application of all existing zoning ordinances the property, but instead
only those that were consistent with the Reuse Plan approved by the
Department of Defense and HUD. -

What was left out was that Base Reuse (BRAC) law, which was used to
provide the authority for their ruling, states that upon transfer that
all local building codes and zoning ordinances will apply. Their ruling
also did not point out that the Navy Record of Decision on Naval
Training Center did not address building codes or zoning ordinances.  It
was not within its scope.

The 1994, State laws cited were created by Assembly Bill 3759.
Curiously, it was authored by Point Lomas Assembly Representative Mike
Gotch, now legislative director for Governor Gray Davis. Gotch is one of
three San Diegans, Steve Peace and Lynn Schenk being the others, on the
Governor staff who played major roles in the NTC giveaway.

While stating that this was not a ruling to extinguish the San Diego
Coastal 30 foot Height Limit,  it effectively did so on nearly all
property south of Rosecrans Street.  This, since all land there was
under State or Federal control in 1972.  It also determined that the
City, by having the State create an unelected authority (like the
Airport Authority), can circumvent any local zoning regulations.  They
can do this even if, like  under Base Reuse, the plan is designed and
brought  through the process by the City.

The judges basically said that the City could propose a plan that was
against the law and the will of the people and be protected by the
courts.  This provides further profits and incentive for  inside
dealsters who are still adamantly pushing for closing of MCRD and the
Submarine Base.

Additionally troublesome is that this ruling allowed the City to play
fast and loose with documents such as the Environmental Impact Report.
In this report, the 30 foot Height Limit could only be exceeded on
Tidelands which were defined as land seaward of the 1850 mean high tide
line.  Since, constitutionally protected Tidelands were given away by
Steve Peace legislation and the 30 foot Height Limit extended to include
all NTC property.

The court had more than adequate ammunition to protect the public, but
instead chose to ignore Federal law and undermine public protection.

Local government officials and taxpayer resources have consistently
supported expansion of McMillin control and profits at Naval Training
Center.  They have been backed up by every local representative at the
State level.

In Congress, the change from Rep. Bilbray to Susan Davis has only
resulted in a neutralizing of outward support for military land

Those representatives that put insider and developer desires ahead of
the public good and the will of the people are well-documented.  Unless
more citizens stand up and address the challenge of insider-driven
government, look for a Miami Beach-style iron curtain to rise and all
public land to be given away to well-connected developers along our
once-thought protected coast.

John McNab
Save Our NTC
a 501(c)(3) non-profit organization

 Save OUR NTC--http://www.ntcsd.org -a 501(c)(3) NON-PROFIT**
 4295 Voltaire St. S.D.,CA 92107 #27 - saveourntc@yahoo.com
 Help us to preserve all of the Naval Training Center for all
 citizens who have paid their tax dollars to equip the center
 for public/government use. **WE ARE TAX DEDUCTIBLE**
 Now, more than ever, NTC is needed by our country to preserve and
protect our democracy.

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