In a strange turn of events that left many in Orcutt bewildered, Caltrans denied a permit needed to construct a new Veterans’ memorial in Orcutt because it contained the American flag, but new legislation set to go before a California Senate committee on Tuesday, April 12, might save the project.


There are many things one might expect to hold up a building permit – from design issues to the impact on the environment – but the last thing many would expect would be the official symbol of the United State of America. That is why Caltrans decided not to allow the Old Town Orcutt Revitalization Association (OTORA) to build a memorial near the Clark Avenue and Highway 135 overpass.


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Steve LeBard, the president of OTORA, has been working on the project for several months and was nearly ready to begin construction when the news came down. He wasn’t entirely surprised because early on in the permitting process, Caltrans had mentioned there could be complications due to a court case about the flag, but the staff seemed supportive and worked with him to get through the process. When he learned the Orcutt memorial had been turned down he was disappointed. He said Caltrans offered to help them find another location, but buying land would be too expensive for the non-profit group.

LeBard wasn’t the only one in Orcutt disappointed by delay. Santa Barbara County Fourth District Supervisor Joni Gray said she was surprised. “My first reaction was, ‘You’ve got to be kidding,’” she said. Speaking of the court ruling behind the denial she added, “What I find is so many times laws are made that we don’t know what the repercussions will be. It does not make sense to not have the memorial there and have a flag flying.”

Gray said she would personally continue to lobby for the memorial and encourage Orcutt residents to write their state representatives in support. “This really needs to be done. The law needs to say you can flyy a flag on that corner of Clark,” she said.

LeBard said he has gotten a similar reaction when he tells people about the current hold on the project: “When I first tell people it was denied because the American flag is on it, they are speechless and ask what this country is coming to.”

Caltrans spokesman Jim Shivers said they weren’t singling out the flag. “It could be a banner, it could be a neon sign or any fixed object on any subject in the world. We do not allow for messages of any kind in the Caltrans’ right-of-way.” He went on to say if encroachment permits were given for this project it would force Caltrans to grant permits to any group on any subject. He said another issue was Caltrans’ desire to limit distracting elements along the road. “We do not want to have any location with a proliferation of messages and signs – we need uniform standards,” he said. Shivers emphasized that he didn’t believe this was a “flag issue” but rather an issue of free speech. He said the department had many employees who proudly served in uniform and said they were still willing to help relocate the monument.

To understand Caltrans legal team’s position on “messages” along the road is important to look at the court case that caused them to stop allowing American flags, or any messages inside their right-of-way (Caltrans still allows the flag and other government symbols on official signage).

In the last few years, Caltrans started denying or removing tributes such as the one proposed in Orcutt due to a court case that started after the Sept. 11 terrorist attacks when a groundswell of support and patriotism swept the nation. Flags and banners went up along roads and fences, but so did other messages. Tied to an overpass along Highway 17 in Santa Cruz, beside flags and calls for patriotism, Amy Courtney and Cassandra Brown hung signs that urged America not to go to war. When Caltrans went to remove signs that might distract drivers, they took down everything – including patriotic and antiwar signs – except the American flag. They assumed the flag was a universal and national symbol. Not so, said the Ninth Circuit Court of Appeals, which ruled in favor of Brown and Courtney when the pair sued the state in Brown v. Caltrans.

In an opinion written by Judge Kim Wardlaw the court said, “We must decide whether the California Department of Transportation’s policy of permitting an individual to display United States flags, but no other expressive banners, on highway overpasses constitutes unreasonable viewpoint discrimination in violation of the First Amendment.” After that, Caltrans adopted a policy of prohibiting all forms of speech along their roads rather than open itself up to a downpour of opinions. But the decision has not been without controversy. Attempts to remove a flag painted on an overpass in Alameda County resulted in outrage and garnered national media attention. That memorial was restored after the governor expressed anger over the department’s actions.

It looks like the supporters of this memorial may have to resort to action from Sacramento if they want to continue with the project. While they may not be getting the green light from Caltrans, the California legislature could pass a law that would allow the project to be built. Such a law has been sponsored by State Sen. Tony Strickland. Senate Bill 443 would allow the Orcutt project to be built if it passes, something Strickland is positive about.

“I’m seeing a lot of support and calls from the community,” he said. Strickland authored similar legislation that dedicated a portion of the 101 freeway to the 101st Airborne Division. He said he started hearing about the project as it was going though Caltrans but decided to actively lend his support when OTORA ran into the roadblock. Speaking of the denial, he said “It seems like a bureaucratic rule, but I see something larger. Any time we can honor our Veterans, we need to do that. I just think it is the right thing to do.”

Currently, the bill is set to go before the Senate Veterans Affairs Committee on April 12. From there, it will continue through the legislative process and eventually come to a vote. LeBard says he plans to testify in support of the bill along with others from the Orcutt community.

Update:
Steve LeBard has published a blog on OTORA’s website outlining his argument for placing the memorial on Clark. He also plans to put a temporary memorial in place every day at the sight. For more information, visit www.oldtownorcutt.com

brookshire@syvjournal.com