July 25, 2011
Mr. Malcolm Dougherty
Director of Caltrans
1120 N Street
Sacramento, CA 94273-0001
Re: Old Town Orcutt Gateway Monument and Veterans’ Memorial Flagpole at State Highway 135 and Clark Avenue (West) Caltrans Park & Ride Lot
Dear Mr. Dougherty:
Our non-profit civic group is trying to build a gateway monument project in Orcutt, California. We submitted our plans to Caltrans in February of 2011 and the Caltrans District 5 Encroachment Permit Engineer denied our project in a letter dated March 7, 2011.
Senator Tony Strickland introduced Senate Bill No. 443 on March 24, 2011. The original bill would have allowed us to build our memorial under Caltrans supervision. The Senate Appropriations Committee amended Senate Bill No. 443 on May 31, 2011.
Currently the bill states: Pursuant to Section 118 of the Streets and Highways Code, the Department of Transportation may sell excess real property in the state-owned area associated with the park-and-ride lot at the Clark Avenue West exit from State Highway Route 135 in the Town of Orcutt to the County of Santa Barbara for purposes of erecting a veterans' memorial at that location.
The decision to amend this bill was based on the Senate Appropriations committee bill analysis which states: In Brown v. California Department of Transportation (260 F.Supp.2d 959) the U.S. District Court ruled that Caltrans violated First Amendment rights of expression by prohibiting unpermitted anti-war displays of expression on highway overpasses, while allowing the display of United States flags. The decision requires Caltrans to enforce its permitting and maintenance rules and regulations on a content neutral and viewpoint neutral basis. Rather than allow all forms of expressive activity on highway overpasses, Caltrans policy is to allow no displays of expression in Caltrans right-of-way.
Our project has nothing to do with Brown v. Caltrans and hanging flags on overpasses. I had a highly regarded legal foundation that has won several major cases in the United States Supreme Court review my contention and they agreed with me. They determined that the Supreme Court case of Pleasant Grove v. Summun more appropriately applied in this situation.
During the course of interactions that have taken place over the last six months between State Senators and Assemblymen, U.S. Congressmen, County Supervisors, Veterans Groups and the public the California Department of Transportation went back and forth as to their problem with our project being the flag of the United States of America or the Veterans’ Memorial or both.
I submitted a second encroachment permit on May 23, 2011 to put a flagpole and the United States flag in the State Right-of-way. The Caltrans Gateway Monument Program does not allow any flagpoles or flags.
The Caltrans Encroachment Permit Manual and California State law allows the California State flag and the flag of the United States of America in the State Right-of-way. Our permit was approved and the United States flag was displayed for the first time on July 4, 2011.
I hereby request that the California Department of Transportation revise the “Gateway Monument Program” guidelines to allow the California State flag and the flag of the United States of America.
On June 2, 2011, Senate Bill No. 443 unanimously passed the California Senate 39 to 0 and was ordered to the Assembly. In mid June, 2011, I received a call from California Senator Tony Strickland’s office concerning the Bill.
Senator Strickland’s office told me that the Caltrans is in agreement with Senate Bill No. 443 and since the Caltrans is in agreement, there is really no need for the Bill. In an email sent to me on June 22, 2011, Senator Strickland’s office advised me to: “Please contact Patrick Pittarelli at (805) 549-3317. He is aware of the situation and is ready to assist you in completing the necessary paperwork.”
I contacted Mr. Pittarelli and I was told that the property would be sold to the County of Santa Barbara for a nominal fee. He did not know if that would be $1.00, $5.00 or $500.00 but he surmised that the property did not have much value because of its small size and location. I agreed.
Mr. Pittarelli told me that he would contact me once he received his orders from Caltrans in Sacramento as they were still deciding on how to handle the process.
I called Mr. Pittarelli on July 18, 2011 to see if he had heard from Sacramento. He told me that he had sent a letter to me and that he would email me over a copy of the letter.
In our July 18th conversation, he said that there was going to be a $10,000.00 fee that was going to have to be paid upfront before the process of selling the property to the County of Santa Barbara was started. This took me by surprise and I told him that I would have to see the letter so that I could determine how we were going to proceed from here.
Later that day Mr. Pittarelli sent me an email stating: “Mr. LeBard, I left a voice message for you at 714-1165. That is the only number I was provided and I trust you will get it. In that message, I explained that I was just informed that I am to be directing all communications regarding this project through the Office of Mr. McGolpin (805/568-3000) at County Public Works. Accordingly, as a follow up to our telephone conversation of this morning, I will have to direct you to Mr. McGolpin to discuss the details and special arrangement of this project. Again, I apologize for any confusion and miscommunication. Please feel free to call me with questions regarding this e-mail.”
I then called Mr. McGolpin and asked him to email me a copy of the letter that Mr. Pittarelli had sent to me. In talking to Mr. McGolpin he said that he was under the same impression that I was, the property would be sold to the County of Santa Barbara for a nominal fee. No one had mentioned a $10,000.00 fee to him either.
The Old Town Orcutt Revitalization Association is a non-profit civic group of citizens that has worked very hard to raise the funds and pledges that we needed to build our Veterans’ Memorial. Over the last 10 years our organization has implemented many beautification projects. Our work has inspired the community to invest in their homes and businesses and to show community pride. We are willing to pay a nominal fee for this property. We are not able to pay $10,000.00 for your process.
I would like it noted that if our original “Gateway Monument” encroachment permit had been approved there would not have been any Caltrans fees attached to our project. This is true for any non-profit civic group wanting to build a gateway monument.
I would also like it noted that the County of Santa Barbara 4th District Supervisor Joni Gray recently pointed out to me that the Caltrans is taking property from the County of Santa Barbara “with no compensation” for a roundabout located at Highway 246 and Purisima Road.
In a letter dated July 8, 2011, from the Caltrans to the County of Santa Barbara, Caltrans transportation surveyor Timothy Romano noted that Sections 81-83 of the Streets and Highways Code give the Caltrans the authority to take property from the County with no compensation to the County.
If in fact this property is within the boundaries of the state highway, then the authority rests in Section 80 of the Streets and Highways Code requiring a California Transportation Commission resolution.
I request that 1. if the County of Santa Barbara agrees with me and 2. if the Caltrans has not received the required resolution from the California Transportation Commission for the State Highway 246 Purisima Road Roundabout, then the Caltrans exchange (see excerpt from Senate Bill No. 443 below) the property they need for the State Highway 246 Purisima Road Roundabout for the property that we need for the Veterans’ Memorial.
California Senate Bill No. 443 as currently amended states in part: Under existing law, if the department determines that real property is no longer necessary for highway purposes, the department may sell or exchange the real property based on terms established by the California Transportation Commission.
In the meantime, I will be contacting Senator Tony Strickland’s office to discuss moving Senate Bill No. 443 back to the required California Assembly committees and on to the Governor for his signature. I will be contacting California Legislators, the U.S. Congress, the American Legion, the VFW, the United States Marine Corps League, the County of Santa Barbara and the public to ask for their help.
Under the Caltrans “Transportation Art Program” the Caltrans approved “Chicano Park” in San Diego. I understand that one of the murals in this Caltrans approved “Transportation Art” project includes Fidel Castro.
If we were to re-submit our project as a Caltrans Transportation Art project, would you support our project? The project would include five black granite pillars representing each branch of the United States Armed Forces (bronze insignias), a 30’ concrete circular walk (sidewalk), a flagpole with the flag of the United States of America in the center of the circular walk (sidewalk). This should comply with the Caltrans Encroachment Permits Manual and California State law. We would call the Transportation Art Project “A Tribute to the Protectors of Freedom”.
California Governor Edmund G. Brown Jr., California State Senator Tony Strickland, California State Senator Dianne Feinstein, California State Senator Sam Blakeslee, California State Senator Michael J. Rubio, California State Senator Mimi Walters, California State Assemblyman Katcho Achadjian, United States Congressman Elton Gallegly, United States Congresswoman Lois Capps, County of Santa Barbara 4th District Supervisor Joni Gray, County of Santa Barbara 5th District Supervisor Steve Lavagnino, County of Santa Barbara Public Works Director Scott McGolpin, National Marine Corps League Commandant Vic Voltaggio, American Legion National Commander Jimmie L. Foster, VFW National Commander Richard Eubank, American Legion Commander Robert F. Maston