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«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 ...»

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The required lateral easement shall be 25 feet wide as measured from the daily bluff edge, and traverse the parcel from north to south along the trail of the western portion of the subject property. The appellant contends that “none of any of this has anything to do with my FCU conversion application. There is no nexus and no proportionality.” The appellant also questions the meaning of “daily bluff edge” contained within the requirements of Special Condition No. 2.

As stated above, 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 3.” The County staff report additionally states the following:

…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.

Further, the County’s condition requiring the grant easement for public access is consistent with

LUP Policy 3.6-5. This policy states in part:

If other methods of obtaining access as specified above have not occurred, developers obtaining coastal development permits shall be required prior to the issuance of the coastal development permit to record an offer to dedicate an easement for public access purposes (e.g. vertical, lateral, parking areas, etc.) where it is delineated in the land use plan as a condition of permit approval. The offer shall be in a form and content approved by the Commission and shall be recorded in a manner approved by the Commission before the coastal development permit is issued.

The County’s findings for approval of the subject Family Care Unit development authorized by CDP 10-2013 reference LUP Policy 3.6-5 and the requirement for developers to record an offer to dedicate a public access easement where it is delineated in the land use plan. The County staff

report documents that:

The County Land Use Map #31 identifies proposed shoreline access from Highway 1 and along the bluff on the subject property. Policy 3.6-9 of the Coastal

Element states in part:

Offers to dedicate an easement shall be required for all areas designated on the land use plan maps.

Therefore, the requirement imposed by Special Condition No. 2 of CDP 10-2013 to measure the lateral access easement from the daily bluff edge is consistent with the public access policies of the certified LCP and the Coastal Act, including but not limited to LUP Policy 3.6-8 and CZC Section 20.528.015(E) which require in part that bluff retreat (erosion) shall be considered and provided for the life of the development when planning lateral accessways. Measurement of the lateral access easement from the “daily bluff edge” functions, in essence, as a “floating” easement in that as the bluff edge retreats landward over time, the 25-foot-wide easement moves landward accordingly.

Public Resources Code Section 30625(b) states that the Commission shall hear an appeal unless

it determines:

With respect to appeals to the commission after certification of a local coastal program, that no substantial issue exists with respect to the grounds on which an appeal has been filed pursuant to Section 30603.

As discussed above, the grounds for an appeal identified in Section 30603 concern whether the challenged development conforms to the standards in the LCP and the public access policies of the Coastal Act. As described in Finding A above, 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 7 A-1-MEN-14-0003 (Miller) raises only local issues, or those of regional or statewide significance. In the absence of more detailed standards in the Coastal Act or the accompanying regulations for determining whether an appeal raises a substantial issue, there is good reason to determine the Coastal Act affords the Commission considerable discretion to determine when to exercise its appellate jurisdiction over local coastal permit decisions.

First, the Commission’s broad discretion to accept appeals is inherent in the structure of an LCP process that depends for its success on a cooperative sharing of authority between the Commission and local governments. After the adoption of their local coastal programs, local governments become the chief permitting authority. The Commission’s appellate authority is restricted to certain types of developments and certain geographical areas. Even in these situations, Section 30603 of the Coastal Act makes the Commission’s exercise of appellate authority discretionary and not mandatory. As discussed above, if 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.

Moreover, it also is significant that the Coastal Act sets out “minimum” standards and policies with which local governments must comply (Yost v. Thomas (1984) 36 Cal. 3d 561, 572). Local governments also have the discretion to adopt LCP provisions of local interest that are more restrictive than, but not in conflict with, the Act (Ibid.). Where these local interest provisions are the only ones implicated by an appeal there is no compelling reason for the Commission to exercise its appellate authority. In this case, the Commission exercises its discretion and determines that the development as approved by the County presents no substantial issue.

The new owner is subject to both the benefits and liabilities of the underlying subdivision that that bind the land. Coastal public access is a coastal resource of great significance and ensuring maximum feasible public access is an issue of statewide significance. The requirements of the County to satisfy the permit requirements for the underlying development prior to authorizing new development on the subject site are not unreasonable. The Commission further finds that the County’s findings provide a high degree of factual evidence to demonstrate the necessity of its conditional approval of the family care unit to ensure conformity with the public access policies of the certified LCP and the Coastal Act and the underlying CDP that authorized the subdivision and established the subject parcel. Therefore, the Commission finds that the appeal raises no substantial issue of conformance with the public access policies and standards of the certified LCP and the Coastal Act.

2. Family Care Unit The appellant contends that the project should have been processed ministerially by the County pursuant to the temporary use policies of the Mendocino County certified LCP, including but not limited to Mendocino County Coastal Zoning Code (CZC) Section 20.460.040. The appellant asserts that “I qualify in all respects (age, medical, family, etc.) for this to be properly and legally processed ministerially as required by law.” The appellant does not expand on what he means by the phrase “processed ministerially as required by law.” It is not clear whether the applicant/ appellant is suggesting (a) that the conversion of the guest cottage to a family care unit does not require a coastal development permit, (b) the coastal development permit application should not have been subject automatically to a public hearing process and instead processed as an administrative permit, or (c) something else.

8 A-1-MEN-14-0003 (Miller)

Regardless of what the /appellant intended in using the phrase “processed ministerially as required by law,” the contention that the County did not process the applicant’s application for the family care unit ministerially does not allege an inconsistency of the project as approved with the certified LCP. Rather, the appellants allege that the application was not processed in the appropriate manner. This concern is not valid grounds for appeal, as the concern does not relate to conformance of the approved project with the certified LCP and the public access policies of the Coastal Act. The Commission therefore finds that this contention is not a valid ground for appeal pursuant to Section 30603(b)(1) of the Coastal Act.

Further, though this contention is not a valid ground for appeal, the County did, in fact, process the application according to the procedures set forth in the certified LCP.

Mendocino County CZC Section 20.532.010 requires that a coastal development permit be obtained prior to undertaking development in accordance with the provisions of the certified LCP. CZC Section 20.308.035(D) defines “Development” in part as any “change in the density or intensity of use of land...” The proposed temporary use of the existing guest cottage as a family care unit constitutes a change in the intensity of use of the guest cottage that requires a coastal development permit. With respect to conformance with CZC Section 20.460.040(A), the County findings indicate that the proposed FCU use “is being processed as a Standard CDP per

Sec. 20.460.040 of the Mendocino County Coastal Zoning Code,” which it references as follows:

Section 20.460.040 of the Mendocino County Coastal Zoning Code (MCCZC) outlines

temporary use regulations associated with a Family Care Unit as follows:

The temporary use of a building, structure or trailer coach, not to exceed one thousand (1,000) square feet in size, will be allowed, upon issuance of a Coastal Development Standard Permit, to provide housing for (a) not more than two (2) adult persons who are sixty (60) years of age or older, or (b) an immediate family member or members who requires daily supervision and care, or (c) a person or persons providing necessary daily supervision and care for the person or persons

residing in the main residence subject to the following provisions:

(A) Standard Permit. The temporary unit shall be allowed only after securing a Coastal Development Standard Permit.(emphasis added) (B) Statement. Prior to the granting of the permit and yearly renewal:

(1) A statement must be submitted by the owner of the property and signed under penalty of perjury that the use of the "family care unit" is to provide housing for (a) not more than two (2) adult persons who are sixty (60) years of age or older, or (b) an immediate family member or members who requires daily supervision and care, or (c) a person or persons providing necessary daily supervision and care for the person or persons residing in the main residence.

(C) Termination. Should the use or necessity of the temporary family care unit cease, it must be removed from the premises or converted to an accessory structure as provided in Chapter 20.456. Should the occupants of the family care unit or the main residence move to another off-site residence, the permit for the family care unit shall become null and void. (Ord. No. 3785 (part), adopted 1991) As described in the County staff report, the County correctly processed the application for the proposed temporary change in intensity of use of the guest cottage as a coastal development standard permit consistent with CZC Section 20.532.010.

9A-1-MEN-14-0003 (Miller)

Regarding whether the proposed project could have been processed without a public hearing, the subject permit application for the family care unit does not qualify for processing as an administrative permit and requires a public hearing for at least two reasons. First, as noted above, Section 20.460.040(A) requires that permits for family care units be processed as a standard permit, not an administrative permit. Second, Section 20.532.015(A) specifically states that development projects which are appealable to the Coastal Commission shall not be processed as an administrative permit and Section 20.536.010(B) of the Coastal Zoning Code provides that the approving authority shall hold at least one public hearing on each coastal development application for a development that is appealable. As the applicant’s development project is appealable to the Commission as described above, the coastal development permit application for the applicant’s project cannot be processed as an administrative permit and must be subject to a public hearing.

The County approval also contains findings that the approved coastal development permit is consistent with the other provisions of Section CZC Section 20.460.040. In its findings for approval of the guest cottage previously authorized by CDPM 69-2004(2006), Mendocino County imposed Special Condition No. 12 to ensure that the guest cottage would not have kitchen or cooking facilities, and that its use would be clearly subordinate and incidental to the primary dwelling on the same lot. As conditioned, the County found its approval of the guest cottage would be consistent with the certified LCP policies that limit permitted accessory uses, including but not limited to CZC Sections 20.456, 20.308.035(B), and 20.308.050(I).

Given the factual evidence set forth by the County as the basis by which the FCU could be granted pursuant to CZC Section 20.460.040, the Commission finds that the requisite findings consistent with CZC Section 20. 460.040 were made.

F. CONCLUSION For the reasons stated above, the Commission finds that there is factual and legal evidence in the record to support the County’s approval of a CDP for this project when it found that the project is consistent with the relevant LCP policies and the Coastal Act public access policies. The Commission therefore finds that the appeal raises no substantial issue with respect to the grounds on which it was filed.

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