«W14a Filed: 1/07/14 49th Day: 2/25/14 Staff: T. Gedik-A Staff Report: 1/31/14 Hearing Date: 2/12/14 STAFF REPORT: APPEAL SUBSTANTIAL ISSUE ...»
STATE OF CALIFORNIA – NATURAL RESOURCES AGENCY Edmund G. Brown, Jr., Governor
CALIFORNIA COASTAL COMMISSION
NORTH COAST DISTRICT OFFICE
1385 8TH STREET • SUITE 130
ARCATA, CA 95521
VOICE (707) 826-8950
FAX (707) 826-8960
49th Day: 2/25/14
Staff: T. Gedik-A
Staff Report: 1/31/14
Hearing Date: 2/12/14
STAFF REPORT: APPEAL
Harry W. Miller
Appellants: Harry W. Miller Local Government: County of Mendocino Local Decision: Approval with Conditions Location: West of Highway One, approximately 0.5 mile south of Anchor Bay, at 35800 South Highway One, in Mendocino County (APN 144-070-18) Project Description: Temporary use and conversion of an existing guest cottage as a Family Care Unit.
Staff Recommendation: No Substantial Issue
SUMMARY OF STAFF RECOMMENDATION
One appeal was timely filed with the Commission’s North Coast District Office on January 7, 2014, by the applicant, Harry W. Miller. The appeal raises two contentions: (1) a special A-1-MEN-14-0003 (Miller) condition required by the County requiring recordation of a grant easement for a 25-foot-wide lateral public accessway measured from the daily bluff edge involves an exaction of property that is not related and proportional to the impact of the development on public access; and (2) the County’s approval of the Family Care Unit should have been processed ministerially pursuant to Mendocino County Coastal Zoning Code (CZC) Section 20.460.040.
The public access contentions raised in the appeal present potentially valid grounds for appeal in that they allege the approved development’s inconsistency with the temporary use policies of the certified LCP, and with the public access policies of the certified LCP and the Coastal Act.
However, the contentions do not raise a substantial issue of conformance of the project as approved with the policies of the certified LCP or the public access policies of the Coastal Act.
The County’s conditional approval of the family care unit repeats the never satisfied requirement of the coastal development permit granted by the County in 2007 for the land division creating the subject property to record an offer to dedicate (OTD) a lateral public access easement approved by the Coastal Commission and the County across the bluff top of the property. The public access OTD requirement had been agreed to by the current applicant’s predecessor and required prior to issuance of the underlying coastal development permit. However, the OTD was never properly recorded. In its conditional findings for approval, the County described that the requirement for the access easement was a condition of approval for the subdivision that created the subject parcel, and as such, “must be met before any additional development may proceed on these parcels in order to support Findings” regarding public access and recreation requirements.
Further, the requirement to record a lateral public access easement is consistent with Land Use Plan (LUP) Policy 3.6-5 which requires developers obtaining coastal development permits to record an offer of dedication of an easement for public access purposes where it is delineated in the LUP as a condition of approval. The certified LUP map for the area identifies proposed shoreline access along the bluff of the subject property. LUP Policy 3.6-8 requires that bluff retreat shall be considered and provided for the life of the development when planning lateral accessways.
There is a high degree of factual support for the local government’s decision to find that its approval conforms with the public access policies of the certified LCP and the Coastal Act. In addition, the County requirements maximize protection of coastal public access, a significant coastal resource.
The second contention that the County should have processed the applicant’s application for the family care unit ministerially does not allege an inconsistency of the project as approved with the certified LCP and the public access policies of the Coastal Act. Rather, the appellant alleges that the application was not processed in the appropriate manner. Therefore, this concern does not raise valid grounds for appeal.
Therefore, Commission staff recommends that the Commission find that the appeal raises no substantial issue with respect to the grounds on which it was filed.
II. FINDINGS AND DECLARATIONSA. APPEAL JURISDICTION AND PROCEDURES
B. LOCAL GOVERNMENT ACTION AND FILING OF APPEAL
C. SITE DESCRIPTION
D. PROJECT DESCRIPTION
E. ANALYSIS OF APPELLANT’S APPEAL CONTENTIONS
APPENDICES Appendix A – Commission’s Appeal Jurisdiction Over Project Appendix B – Substantive File Documents Appendix C – Planning and Locating New Development LCP Policies Appendix D – Public Access Coastal Act and LCP Policies Appendix E – Project Background EXHIBITS Exhibit 1 – Regional location map Exhibit 2 – Vicinity Map/ Aerial Photo Exhibit 3 – Parcel Map Exhibit 4 – Site Plans Exhibit 5 – Site photo Exhibit 6 – Notice of Final Local Action and Findings for Approval for CDP 10-2013 Exhibit 7 – Appeal Exhibit 8 – Notice of Final Local Action and Conditions for Approval of Underlying Subdivision (CDMS 24-2004) Exhibit 9 – Correspondence to Applicant Regarding Unsatisfied Pre-Conditions of Underlying Subdivision (CDMS 24-2004)
Staff recommends a YES vote on the foregoing motion. Passage of this motion by voting “Yes” as is recommended by staff will result in a finding of No Substantial Issue and adoption of the following resolution and findings. The local action will become final and effective. The motion passes only by an affirmative vote of the majority of the appointed Commissioners present.
II. FINDINGS AND DECLARATIONS
A. APPEAL JURISDICTION AND PROCEDURESPursuant to Coastal Act Section 30603, the County’s approval is appealable to the Commission because the approved development is located: (1) between the sea and the first public road paralleling the sea; and (2) within 300 feet of the top of the seaward face of a coastal bluff. The grounds for an appeal are limited to an allegation that the approved development does not conform to the standards set forth in the certified local coastal program and as the development is located between the first public road and the sea, the public access policies set forth in the Coastal Act.
Coastal Act Section 30625(b) requires the Commission to hear an appeal unless it determines that no substantial issue exists with respect to the grounds on which the appeal has been filed 1.
Even when the Commission chooses not to hear an appeal, an appellant nevertheless may obtain judicial review of the local government's coastal permit decision by filing a petition for a writ of mandate pursuant to Code of Civil Procedure, Section 1094.5. Commission staff has analyzed the administrative record for the approved project, including the County’s Final Local Action 1 The term “substantial issue” is not defined in the Coastal Act or its implementing regulations. In previous decisions on appeals, the Commission has generally been guided by the following factors in making substantial issue determinations: (a) the degree of factual and legal support for the local government’s decision; (b) the extent and scope of the development as approved or denied by the local government; (c) the significance of the coastal resources affected by the decision; (d) the precedential value of the local government's decision for future interpretations of its LCP; and, (e) whether the appeal raises only local issues, or those of regional or statewide significance.
4 A-1-MEN-14-0003 (Miller)
Notice for the development (Exhibit No. 6), the appellant’s claims (Exhibit No. 7), and the relevant requirements of the Coastal Act and certified LCP (Appendices C and D) and is recommending that the Commission find that the appeal raises no substantial issue with respect to the grounds on which the appeal has been filed.
In this case, because the staff is recommending that the appeal raises no substantial issue, the Commission will hear arguments and vote on the substantial issue question. Proponents and opponents will have three minutes per side to address whether the appeal raises a substantial issue. The only persons qualified to testify before the Commission on the substantial issue question are the applicant, the appellant and persons who made their views known before the local government (or their representatives), and the local government. Testimony from other persons regarding substantial issue must be submitted in writing. It takes a majority of Commissioners present to find that no substantial issue is raised.
If the Commission determines that the appeal does raise a substantial issue, the Commission would continue the de novo portion of the appeal hearing to a subsequent meeting.
B. LOCAL GOVERNMENT ACTION AND FILING OF APPEALThe Mendocino County Coastal Permit Administrator approved the proposed project with special conditions at its hearing held on November 22, 2013. The North Coast District Office received the Notice of Final Local Action on December 23, 2013 (Exhibit 6). One appeal was timely filed with the Commission’s North Coast District Office on January 7, 2014, within 10 working days of receipt by the Commission of the County’s Notice of Final Action. The appeal was filed by the applicant, Harry W. Miller (Exhibit No. 7).
C. SITE DESCRIPTIONThe County-approved project is located west of Highway One, on a relatively-flat, mostlywooded blufftop parcel situated between the town of Gualala and the small resort village known as Anchor Bay. The parcel land use and zoning designation is Rural Residential, 5 acre minimum (RR-5). Existing development on the approximately 5-acre parcel includes a 2,175-square-foot single family residence, a 640-square-foot guest cottage, paved driveway, and ancillary development. General Plan and zoning classification on lands surrounding the subject property include Rural Residential 5- and 10-acre minimum parcel sizes, and visitor-serving facilities.
D. PROJECT DESCRIPTIONOn November 22, 2013, the Mendocino Coastal Permit Administrator authorized conditional approval CDP 10-2013 to temporarily convert the existing guest cottage on Parcel 1 into a Family Care Unit (FCU). The County staff report (page 8 of Exhibit 6) describes that the FCU would rely on existing infrastructure, including the driveway and parking areas, water, and septic system. In its conditional findings for approval, the County described that the requirement for the access easement was a condition of approval for the subdivision that created the subject parcel, and as such, “must be met before any additional development may proceed on these parcels in
order to support Finding #7 2.” The County staff report additionally states the following:
The subdivision which created the subject parcel included a condition of approval for public access which was not adequately complied with (See discussion above
under the heading title Other Related Applications). The recorded public access easement is deficient as described above, and does not provide and ensure adequate access to the public.
…In order to be consistent with the policies, procedures, and requirements of the Coastal Act, the County’s LCP, the underlying permit that created the subject parcel, and Finding # 7, staff recommends Special Condition Number 2 in order to rectify the deficient public access easement OTD and parcel map depiction….This action must be completed in order to consider the parcel legally created.
E. ANALYSIS OF APPELLANTS’ APPEAL CONTENTIONSThe appeal filed by Harry Miller is attached as Exhibit 7. The appeal raises two contentions: (1) there is no nexus and no proportionality to the imposition of the public access condition required by Special Condition No. 2; and (2) approval of a Family Care Unit should have been processed ministerially pursuant to Mendocino County Coastal Zoning Code Section 20.460.040.
As set forth in Section 30603 of the Coastal Act, after certification of its local coastal program, an appeal of a local government-issued coastal development permit is limited to allegations made on the grounds that the approved development does not conform to the standards set forth in the certified local coastal program or the public access policies of the Coastal Act. The contentions raised in the appeal regarding public access presents potentially valid grounds for appeal in that the contentions allege the approved development’s inconsistency with the policies of the certified LCP and the public access policies of the Coastal Act. As discussed below, the Commission finds that the appeal raises no substantial issue of conformance of the approved development with the policies of the certified LCP or the public access policies of the Coastal Act.
1. Public Access The appellant objects to the imposition of County Special Condition No. 2, which requires the applicant to submit an easement deed for public access for review and approval by the County and the Coastal Commission, and to record the approved easement deed prior to permit issuance.