BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
SB 443 (Strickland)
Hearing Date: 05/16/2011 Amended: 04/26/2011
Consultant: Mark McKenzie Policy Vote: VA 8-0; T&H 8-1
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BILL SUMMARY: SB 443 would require the Department of
Transportation (Caltrans) to erect a veterans' memorial in a
specified state park and ride lot in the town of Orcutt, if
nonstate funds are available for this purpose. Caltrans would
be authorized to enter into agreements with the Old Town Orcutt
Revitalization Association for the planning, construction, and
maintenance of the memorial.
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Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
Caltrans agreements $15 Special*
& oversight
Veterans' memorial unknown, but likely minor
planning,Nonstate
construction, and maintenance costs
Future litigation unknown litigation costs related to
denied Special*
requests for installation of monuments in
state right-of-way (see staff comments)
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* State Highway Account
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STAFF COMMENTS: This bill meets the criteria for referral to the
Suspense File.
The Old Town Orcutt Revitalization Association (ORA) submitted
an application for an encroachment permit to locate a veterans'
memorial in the park and ride lot in Caltrans right-of-way at
the Clark Avenue West exit from State Highway 135 in the Town of
Orcutt. Caltrans denied issuing the permit in March of 2011,
SB 443 (Strickland)
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stating that "We believe that our decision is in compliance with
the case Brown v. California Department of Transportation that
all requests for encroachment on State right of way be treated
equally." Caltrans instead offered other programs available to
commemorate military personnel, including memorial plaques and
Blue Star memorial markers.
SB 443 would bypass Caltrans' encroachment permit process by
requiring the department to construct the veterans' memorial in
consultation with ORA, if nonstate funds are available for this
purpose, including for repair and ongoing maintenance. Caltrans
costs related to the planning, construction, and maintenance of
the memorial would be covered by nonstate funds, but Caltrans
would also incur staff costs of approximately $15,000 related to
administrative functions such as executing construction and
maintenance agreements with ORA, project oversight, and ensuring
compliance with the Americans with Disabilities Act and
environmental laws.
Staff notes that this bill would require Caltrans to deviate
from its current policies and procedures against allowing forms
of expression in Caltrans right-of-way. Installation of a
veterans' memorial in a park and ride lot would effectively open
the right-of-way as a public forum for expression. If Caltrans
were to deny a future request to place a monument or memorial in
the right-of-way, which is consistent with current practice in
order to comply with the federal court injunction issued in the
Brown case (see below), the department would be subject to
future legal action for denial of First Amendment rights of
expression. Future litigation costs are unknown, but based on
previous court decisions, staff estimates these costs would
likely be in the range of $200,000 to $300,000 for each case.
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.
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Caltrans was also sued after revoking the San Diego Minutemen
Adopt-A Highway Program permit, with the plaintiffs alleging
that Caltrans' revocation of the permit violated their
constitutional rights to free speech, free expression, equal
protection, and due process. The court ruled against Caltrans
in San Diego Minutemen v. California Business, Transportation
and Housing Agency's Department of Transportation (2009 WL
3630842 (S.D.Cal.), and the subsequent settlement required
Caltrans to pay the San Diego Minutemen $157,500 and reinstate
the Adopt-A-Highway Program permit. Caltrans also incurred
legal fees and staff costs of over $100,000 related to this
case.
Staff notes that Caltrans district office staff have offered to
initiate and expedite a process to declare a portion of the park
and ride lot as surplus property so that it may be transferred
to Santa Barbara County control for placement of the memorial,
pursuant to administrative procedures provided in current law.
This proposed solution would not require legislation and would
remove any potential for Caltrans liability related to the
erection of a veterans' memorial on state property.