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[The Trash Heap]

Those checking the City website for the April 11 City Council Meeting Agenda ( http://www.cctexas.com/?fuseaction=main.view&page=39 ) will have noticed how late the agenda was posted Friday, and that Agenda Items 20a and 20b are not given any particular time for discussion. You'll also note the agenda refers to these items as "Consideration" of petitions to repeal Ordinance 026716 and one paragraph of Ordinance 026717, and does not mention that they are first of all petitions for the Council to REconsider those ordinances or, if that is denied, to give the petitioners leave to seek referenda for repeal. If the Council doesn't first vote to reconsider, there will be no discussion of these agenda items by the petitioners, the councilmembers, nor anyone else. This is what occurred when the BAC requested reconsideration of the first beach closure ordinance last October.

Since I'm planning to speak independently at the time for general public comment on an item purposely not on the agenda, I plan to be there when the meeting begins at 10. Owing to the uncertainties of the agenda items' order and timing, I urge you all to come at 10, too. For convenience, here's what I already mailed to the Council:

Mayor Garrett and Councilmembers,

At the time scheduled for public comment at the council meeting on April 11, I intend to discuss before you the content of the forwarded email. Please take the time to read it and consider it before the meeting.

Thanks,

Johnny French
----- Original Message -----
The Beach Access Coalition (BAC) voted on April 1, 2006 to submit Notices of Intent to seek reconsideration of, or leave to petition for referenda to repeal, Ordinance 026716 and the second paragraph of Section 7 of Ordinance 026717. While I concur with these moves, I would like to suggest some alternatives.

Section 7 of Ordinance 026717 currently reads:
Except for that portion of the Gulf beach located south of Packery Channel and north of Padre Balli Park, vehicular access to the Gulf beach may not be restricted unless approved by a majority of the qualified voters of the city, voting at an election duly called for such purpose. Thereafter, the City Council may take appropriate action to restrict vehicular access from that specific portion of the Gulf beach and comply with all other requirements necessary to effect the result of the election.

The election requirement of this section shall be effective only after implementation of the vehicular restriction relating to the Gulf beach located south of Packery Channel and north of Padre Balli Park and all legal challenges, relating to the restriction of vehicles from the Gulf beach between Packery Channel to Padre Balli Park, have been finally resolved and all appeals exhausted.
This section shall not apply when vehicles are restricted from access to the Gulf beach for public safety, public health, ecological, weather-related, or environmental reasons; for promotional events; by the use of bollards to separate pedestrians from traffic while allowing the through movement of traffic; or for the routine regulation of traffic or parking.
The BAC and I object to the second paragraph because, if the BAC obtains enough signatures on a petition to hold a referendum, and a majority of the voters agree that Ordinance 026716 should be repealed, that paragraph would then effectively cancel Ordinance 026717, denying the voters the right to adopt a city charter amendment to approve future beach traffic restrictions without more rounds of petitions for referenda. The paragraph is in effect a poison pill that kills the charter amendment if the voters stop the other ordinance from removing vehicles from the beach between Packery Channel and Padre Balli Park.

The first and third paragraphs also have problems which other members of the BAC acknowledge but have not decided to remedy by calling for repeals in Statements of Intent. Because the city charter does not allow initiative, it isn't possible to request referenda for more than deletions of offensive or, as in the case of the third paragraph, equivocal ordinance language.

The problem with the first clause in the first paragraph is that it provides an exception for the closure of the 7400-foot-long portion of the beach. As you know, the Corpus Christi Chamber of Commerce strenuously objects to allowing this closure to occur without submitting it to a plebiscite like those which the proposed charter amendment would force potential competing developers to endure if they requested similar closures. Should Ordinance 026717 continue to treat island developments inequitably, many believe the charter amendment would be challenged and overturned in civil court. Thus, unless that clause's exception is deleted from the paragraph, it constitutes another poison pill.

The third paragraph is, as you each discussed at the March 28, 2006 council meeting, full of vague exceptions that are potential loopholes capable once more of poisoning the ability of the charter amendment to place beach closure proposals on the ballot. The worst of the loopholes is that involving public safety, already invoked (some might say abused) numerous times regarding the beach in front of the North Padre Island seawall. The chief objection to the undefined and unqualified reference to public safety is that it might be used prospectively, that is, to justify avoiding a plebiscite for a beach closure in front of a proposed development because that development might cause traffic congestion and so endanger the public in the future. The Mustang-Padre Island Area Development Plan states that, other than the area in front of the seawall, the City will not restrict vehicular traffic on the beach without an "overwhelming" public safety issue. Significantly, the third paragraph lacks the quoted adjective.

There is an even better precedent that might have been followed in that paragraph. At Article VI, Section 10-56, the City's Municipal Code states:
Areas of the public beach may be closed in cases of public necessity by the city council or the city manager, or his or her designee. "Public necessity" is limited to environmental emergencies, public health and safety emergencies, and government entities' performance of government functions whose importance justifies the restriction of public access. The closure shall be limited to the smallest possible area and the shortest possible time necessary.
Before I saw the cited section of the code, I set about trying to close all the loopholes in the third paragraph. This was the result:
This section shall not apply when vehicles are temporarily and unavoidably restricted from access to the Gulf beach for maintenance of the beach or jetties; for response to public safety, health, ecological, weather-related or environmental emergencies; for short-term public festivals or holiday events; by use of bollards or boardwalks to separate pedestrians from vehicular traffic while allowing the through movement of vehicular traffic; or for routine regulation of traffic or parking. Examples of situations to which this section shall not apply are brief restrictions necessitated during beach renourishment, operation of a sand bypass system, narrowing of the drivable portion of the beach due to sand erosion or accretion, spills of oil or hazardous materials, higher than normal tides, storm debris removal, and concentrations of sensitive wildlife. This section shall apply to lengthy and/or avoidable restrictions for which prior approval or authorization is required under the Texas Open Beaches Act or Dune Protection Act. Examples of situations to which this section shall apply include ordinances approving activities which individually or in the aggregate foreseeable deny all vehicular access to the same portion of the Gulf beach for longer than two years.

My version is lengthy and far from perfect. By adapting the code's language instead, it ought to be possible to provide equally good protection for the public and the beaches. Furthermore, since the code language has been approved by previous ordinances in 1995 and 2003, it should be acceptable to the majority of the City Council and to the public. Consider substituting this for the third paragraph:
In accordance with the Municipal Code, Article VI, Sec. 10-56, this section shall not apply in cases of public necessity. "Public necessity" is limited to environmental emergencies, public health and safety emergencies, and government entities' performance of government functions whose importance justifies the restriction of public access. The closure shall be limited to the smallest possible area and the shortest possible time necessary.

Taking all of the above into account, here is how I suggest the relevant portion of Section 7 of Ordinance 026717 should read:

Vehicular access to the Gulf beach may not be restricted unless approved by a majority of the qualified voters of the city, voting at an election duly called for such purpose. Thereafter, the City Council may take appropriate action to restrict vehicular access from that specific portion of the Gulf beach and comply with all other requirements necessary to effect the result of the election.

In accordance with the Municipal Code, Article VI, Sec. 10-56, this section shall not apply in cases of public necessity. "Public necessity" is limited to environmental emergencies, public health and safety emergencies, and government entities' performance of government functions whose importance justifies the restriction of public access. The closure shall be limited to the smallest possible area and the shortest possible time necessary.
Please consider the arguments and alternatives provided here, and decide if you would support reconsideration of Ordinance 026717 to delete the second paragraph in the original ordinance and to substitute language at paragraphs one and three similar to that offered immediately above.
Since this is not the same as what the BAC has requested in its Statements of Intent, it will not appear on the agenda for the April 11, 2006 council meeting, so I will address the full council with this same request at the usual time for public comment.

Thank you for your timely attention to this matter. Please contact me by email or telephone me at 853-9331 if you have questions and/or I can be of any assistance.

Johnny French
4417 Carlton Street
Corpus Christi, TX 78415-5211
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The Trash Heap Has Spoken!
NNYYAAAHH!!!