«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 ...»
COMMISSION’S APPEAL JURISDICTION OVER THE PROJECTOn November 22, 2013, the County of Mendocino Coastal Permit Administrator approved Coastal Development Permit (CDP) No. 10-2013 that authorized the temporary use and conversion of an existing guest cottage into a Family Care Unit. The project site is located west of Highway One on a blufftop parcel.
After certification of Local Coastal Programs (LCPs), the Coastal Act provides for limited appeals to the Coastal Commission of certain local government actions on coastal development permits (Coastal Act Section 30603). Section 30603 states that an action taken by a local government on a coastal development permit application may be appealed to the Commission for certain kinds of developments, including developments located within certain geographic appeal areas, such as those located between the sea and the first public road paralleling the sea, or within 300 feet of the inland extent of any beach, or of the mean high tide line of the sea where there is no beach, or within 100 feet of any wetland or stream, or within 300 feet of the top of the seaward face of any coastal bluff, or those located in a sensitive coastal resource area.
Furthermore, developments approved by counties may be appealed if they are not designated the “principal permitted use” under the certified LCP. Finally, developments which constitute major public works or major energy facilities may be appealed, whether approved or denied by the city or county. The grounds for an appeal are limited to an allegation that the development does not conform to the standards set forth in the certified local coastal program and, if the development is located between the first public road and the sea, the public access policies set forth in the Coastal Act.
The subject development is appealable to the Commission pursuant to Section 30603 of the Coastal Act because it 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.
1. Between the First Public Road and the Sea The subject property is located between Highway One and the Pacific Ocean. The Post LCP Certification Permit and Appeal Jurisdiction Map for the area adopted by the Commission in May of 1992, designates Highway One as the first public road paralleling the sea. Therefore, as the approved development is located between the first public road paralleling the sea and the sea, the subject development is appealable to the Commission pursuant to Section 30603(a)(1) of the Coastal Act.
2. Within 300 Feet of the Top of the Seaward Face of a Coastal Bluff The project site is a bluff-top parcel, and the approved development is located more than 125 feet but less than 300 feet from the bluff edge. Therefore, the subject development is appealable to the Commission pursuant to Section 30603(a)(2) of the Coastal Act.
The decision of the Coastal Permit Administrator was not appealed at the local level to the County Board of Supervisors. The County then issued a Notice of Final Action, which was received at the Commission’s North Coast District Office on December 23, 2013 (Exhibit No.
6). Section 13573 of the Commission’s regulations allows for appeals of local approvals to be made directly to the Commission without first having exhausted all local appeals when, as here, the local jurisdiction charges an appeal fee for the filing and processing of local appeals.
One appeal was filed with the Commission’s North Coast District Office on January 7, 2014 from the applicant, Harry W. Miller (Exhibit No. 7). The appeal was filed in a timely manner, within 10 working days of receipt by the Commission of the County’s Notice of Final Action.
October 27, 2011. Letter submitted to Mr. Harry and Susan Miller from Mendocino County Planning and Building Department.
October 27, 2011. Letter submitted to Marilyn Haines from Mendocino County Planning and Building Department.
June 17, 2013. Letter submitted to Mr. Harry and Susan Miller from Coastal Commission Enforcement Program.
November 5, 2012. Letter submitted to Mendocino County from Coastal Commission Enforcement Program.
Mendocino County Coastal Development Minor Subdivision No. CDMS 24-2004 Mendocino County Coastal Development Permit CDP 69-04 Mendocino County Coastal Development Permit Modification No. CDPM 69-2004(2006) Mendocino County Local Coastal Program Offer to Dedicate Easement, Record No. 2009-05004, Recorded April 10, 2009, Mendocino County Recorder’s Office.
Mendocino County Land Use Plan (LUP) Policy 3.9-1 states:
An intent of the Land Use Plan is to apply the requirement of Section 30250(a) of the Act that new development be in or in close proximity to existing areas able to accommodate it, taking into consideration a variety of incomes, lifestyles, and location preferences. Consideration in allocating residential sites has been given
• each community's desired amount and rate of growth.
• providing maximum variety of housing opportunity by including large and small sites, rural and village settings, and shoreline and inland locations.
In addition to the considerations pertaining to the allocation of residential sites listed above, all development proposals shall be regulated to prevent any significant adverse effects, either individually or cumulatively, on coastal resources.
One housing unit shall be authorized on every legal parcel existing on the date of adoption of this plan, provided that adequate access, water, and sewage disposal capacity exists and proposed development is consistent with all applicable policies of this Coastal Element and is in compliance with existing codes and health standards. Determination of service capacity shall be made prior to the issuance of a coastal development permit.
CZC Section Sec. 20.376.025 “Maximum Dwelling Density for RR Districts” states in part:
(A) RR: One (1) unit per forty thousand (40,000) square feet except as provided pursuant to Section 20.456.015 (Accessory Uses), Section 20.460.035 (Use of a Trailer Coach) and Section 20.460.040 (Family Care Unit).
CZC Section 20.456.010 “Sec. 20.456.010 “Accessory Uses Encompassed by Principal
Permitted Use” states:
(A) In addition to the principal permitted uses expressly included in the zoning districts such use types shall be deemed to include such accessory uses which are specifically identified by these Accessory Use Regulations; and such other accessory uses which are necessarily and customarily associated with, and are appropriate, incidental, and subordinate to, such principal permitted uses. When provided by these regulations, it shall be the responsibility of the Director to determine if a proposed accessory use is necessarily and customarily associated with, and is appropriate, incidental, and subordinate to the principal permitted use, based on the Director's evaluation of the resemblance of the proposed accessory use to those uses specifically identified as accessory to the principal permitted uses and the relationship between the proposed accessory use and the principal use. Accessory uses shall not include manufacturing, processing or transportation of flammable, explosive, toxic or other hazardous materials.
14 A-1-MEN-14-0003 (Miller) Such determinations which are made by the Director may be appealed pursuant to the administrative appeal procedure commencing at Chapter 20.544.
(B) An accessory structure may be constructed prior to the construction of a dwelling on the premises. An accessory structure shall not be used for temporary or permanent occupancy as a residence, without compliance with Section 20.460.025 (Construction Support). Accessory uses and structures shall be subject to the provisions of Chapter 20.532 (Permit Regulations) and where applicable Chapter 20.504 (Visual Resource and Special Treatment Areas).
(Ord. No. 3785 (part), adopted 1991)
CZC Section 20.456.015 “Residential and Agricultural Use Types” states in part the following:
Subject to the restrictions and limitations of this Chapter, including the granting of a Coastal Development Permit, where applicable, the following accessory buildings and
uses shall be permitted in all zoning districts which allow a single-family residence:
(B) Children's playhouse, patios, porches, gazebos, etc.
(G) Accessory Living Unit Not more than one accessory living unit for each legal parcel.
(H) Room and Board. The renting of not more than one (1) room for occupancy by transient guests for compensation or profit.
(N) Public Access. The offer to dedicate and acceptance of a dedication for an accessway except that the construction of a public access trail and/or construction of a staircase accessway on a bluff face (as determined by the Department of Planning and Building Services) will require a Coastal Development Use Permit.
(O) Other Necessary and Customary Uses. Accessory non-residential uses and nonresidential structures, in addition to those identified above, which are necessarily and customarily associated with, and are appropriate, incidental, and subordinate to a principal permitted use, as determined by the Director of Planning and Building Services.
(Ord. No. 3785 (part), adopted 1991)
CZC Section 20.308.020 defines “Accessory Living Unit” as follows:
…a detached bedroom as defined in Section 20.308.035(B) or a guest cottage as defined in Section 20.308.050(I).
CZC Section 20.308.050(I) defines “Guest Cottage” as follows:
…a detached building (not exceeding six hundred forty (640) square feet of gross floor area), of permanent construction, without kitchen, clearly subordinate and incidental to the primary dwelling on the same lot, and intended for use without compensation by guests of the occupants of the primary dwelling.
CZC Section 20.460.040 outlines temporary use regulations associated with a Family Care Unit
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.
(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) Coastal Zoning Code (CZC) Section 20.532.010 describes the applicability of coastal
development permit regulations as follows:
Any person, partnership, corporation, state or local agency or special district proposing to undertake any development as defined in Section 20.308.035(D) shall obtain a coastal development permit in accordance with the provisions of this Chapter, in addition to any other permit or discretionary approval required by any local agency or special district or any State or Federal agency as authorized by law or ordinance. If a coastal development permit is required pursuant to this section, no building permit, water well permit, septic permit, business license, grading permit, transient occupancy registration certificate, encroachment permit, occupancy permit or other entitlement for use shall be issued prior to the issuance of a coastal development permit.
CZC Section Sec. 20.532.015 “Permit Requirements” states:
Permits required by this Chapter must be secured prior to any development in the Mendocino County Coastal Zone.
(A) Coastal Development Administrative Permit. The purpose of Coastal Development Administrative Permits is to provide for the administrative issuance of coastal development permits. The coastal permit administrator may process as an administrative permit any coastal development permit application for the types of projects specified below, and emergency projects specified in Section 20.536.055. Development projects which are appealable to the Coastal Commission, including any division of land, shall not be processed as an administrative permit.
(1)Any single-family residence that is a principal permitted use within the zoning district in which the development site is located;
(2)Any other development specifically authorized as a principal permitted use within the zoning district in which the development site is located;
(3)Improvements to an existing structure;
(4)Any other developments not in excess of one hundred thousand dollars ($100,000) other than any division of land;