«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 ...»
An application for a Coastal Development Minor Subdivision (#CDMS 24-2004) to create three 5-acre parcels was being processed concurrently with the subject CDP. The project discussed herein is based on the parcel configuration for Parcel 1 as proposed on the tentative map (the southernmost 5-acre parcel). Staff originally processed the two cases together, however it became apparent that processing of the minor subdivision would delay the hearing for the CDP. The applicant wishes to begin construction as soon as possible in order to complete the project before the rains begin. Therefore, staff is processing the two applications separately.
CDMS 24-2004: Minor Subdivision As described above, owners Leonard and Marilyn Haines had applied to subdivide their 15.6acre parcel into three 4 parcels concurrent with their CDP application for construction of a residence. The County staff report for CDMS 24-2004 indicated that “Chapter 4 of the Coastal Element identifies potential development of a bluff top trail and beach access trail to access the wooded headlands and small beach at this (Getchell Gulch) access.” The County additionally documented public comment received from the Gualala Municipal Advisory Council which
stated the following:
According to policy 4.12-12 of the Coastal Element, the Getchell Gulch Access (located on this parcel) requires the obtaining of an offer to dedicate for vertical beach access and bluff top lateral access consistent with policy 3.6-5. Obtaining these offers to dedicate is key to the future establishment of the California Coastal Trail. Mr. Haines, who was present at our meeting, agreed to dedicate the access ways and have them recognized on the new Parcel Maps.” Consistent with the applicant’s proposal to dedicate vertical and lateral public access easements along defined portions of the to-be divided parcels, Mendocino County Board of Supervisors conditionally approved the subdivision of the 15.6-acre parcel into three parcels on June 19, 4 The General Plan and zoning classification of the undivided parcel was Rural Residential, 5-acre minimum with a *1C designation. The land division proposed assigning the *1C designation to Parcel 3 (remainder parcel).
23 A-1-MEN-14-0003 (Miller)
2007 5. The final findings and conditions of approval included Special Condition No. 2 which
states (Emphasis added):
Prior to issuance of the coastal development permit, the landowner shall execute and record a document, in a form and content acceptable to Mendocino County Planning Division and the California Coastal Commission, irrevocably offering to dedicate to a public agency or private association approved by Mendocino County and the Coastal Commission, an easement for (1) a 25-foot lateral and (2) 10-foot vertical public access easement for passive recreational use. The lateral offer of dedication shall be 25 feet wide as measured from the daily bluff edge, and traverse the parcel from north to south along the trail on the western portion of the subject property (as designated on LUP Map 18). The vertical offer of dedication shall be 10 feet wide and extend from Highway One to mean high tide along the northern property line. This condition is based on the pattern of use evidenced by the County's prescriptive rights investigation. See Exhibit E for the approximate location of these OTDs.
The document shall provide that the offer of dedication shall not be used or construed to allow anyone, prior to the acceptance of the offer, to interfere with any rights of public access acquired through use which may exist on the property. The recorded document shall include legal descriptions of both the entire project site and the area of dedication.
The document shall be recorded free of prior liens and any other encumbrances which Mendocino County and/or the Coastal Commission determines may affect the interest being conveyed. The offer shall run with the land in favor of the People of the State of California, binding all successors and assignees, and shall be irrevocable for a period of 21 years, such period running from the date of recording.
Any future development that is proposed to be located either in whole or in part within the area described in the recorded offer of dedication shall require an amendment to this coastal development permit, pursuant to the provisions of 14 CCR Section 13166. This requirement shall be reflected in the provisions of the recorded offer.
CDPM 69-2004(2006): Guest Cottage On June 28, 2007 (one week following the approval of minor subdivision CDMS 24-2004), the Mendocino County Coastal Permit Administrator conditionally approved the construction of a 640-square-foot guest cottage on Parcel 1 as a modification to the originally-approved CDPfor the single-family residence. To ensure consistency with Mendocino County certified LCP policies that limit allowable uses of guest cottages, the approval included Special Condition No.
12 limiting the use of the guest cottage to be subordinate and incidental to the primary dwelling and without kitchen or cooking facilities.
5 The original hearing was scheduled for October 19, 2006, and the staff recommended Special Condition No. 2 that reflected the applicant’s proposal to dedicate a 10-foot-wide vertical access easement and a 25-foot-wide lateral access easement. The hearing was continued to February 15, 2007, in order to address issues raised during the hearing, including the matter of trail width and location. The project was approved with a modified trail width requirement (increasing the vertical access width to 25 feet), and adding a second vertical access easement requirement on the southerly parcel (Parcel 1). The applicant appealed the approval to the Board of Supervisors, requesting to revert to the original Special Condition No. 2, which the Board approved at their June 19, 2007, meeting.
24 A-1-MEN-14-0003 (Miller) Deviations from Requirements of CDMS 24-2004 On March 27, 2008, the permittee executed an Offer-to-Dedicate public access (OTD) in an attempt to satisfy Special Condition No. 2 of CDMS 24-2004. However, the recorded document had not been approved by either Mendocino County or the Executive Director of the Coastal Commission. Section 13574 of the Commission’s Administrative Regulations and Mendocino County certified LCP policies including but not limited to LUP Policy 3.6-5 and Coastal Zoning Code (CZC) Section 20.528.040 require the local government to submit copies of the OTD documents to the Executive Director of the Coastal Commission for review and approval prior to permit issuance.
Mendocino County later submitted a new draft OTD for Commission review, Commission staff responded to Mendocino County’s submittal stating that the document was inadequate both in form and content. Commission staff provided the County with revisions required prior to recordation of the OTD. On November 17, 2008, Commission staff received a revised OTD from the County; however, Commission staff informed the County that the OTD did not contain the Final Findings and Conditions of Approval from the June 19, 2007 Board of Supervisors hearing, and indicated that the OTD must be updated accordingly prior to its recordation.
Although the Final Findings and Conditions of Approval from the June 19, 2007 Board of Supervisors hearing were ultimately included with the new OTD that was recorded, the applicant recorded the version of the OTD that had previously been rejected by the Coastal Commission.
The County staff report for the subject approved family care unit (page 7 of Exhibit 6) describes
the deviations and the measures to rectify the situation as follows:
Unfortunately, the parcel map and OTD were recorded (April 10, 2009, # 2009-05004) with language and depiction of the public access easements that do not meet the requirements of Special Condition #2, nor were these documents approved and accepted by the Coastal Commission. Rather, the OTD that was recorded was a version of the document that was reviewed and rejected by the Coastal Commission on October 23,
2008. The depiction and description of the easements are defective in the following ways:
1. The vertical access easement on the northern parcel boundary is 85 feet from Highway 1, and therefore does not connect with the highway.
2. The vertical access easement ends 58 ft from the mean high tide, and
The incorrect OTD was accepted by the Redwood Coast Land Conservancy (RCLC) and in a letter dated August 4, 2011 from the CA Coastal Conservancy; the County was made aware of the error in the recorded documents. In addition, the properties created by the subdivision were subsequently sold.
On October 27, 2011 a letter from PBS was sent to Mr. Harry and Susan Miller alerting the new property owners of the issue with the public access easement description and depiction.
On November 5, 2012, the Coastal Commission sent a letter to the County and all the property owners describing the permit history, the issue with the recorded documents, and concludes that the subdivision was not authorized. The intent of the letter is to obtain compliance with the conditions of approval of the subdivision permit, and have the property owners record a corrected parcel map and Irrevocable Offers to Dedicate easements. If property owners are unwilling to correct the deficient documents, then formal code enforcement action would be pursued.
On June 17, 2013, the Coastal Commission sent a letter to Mr. Harry and Susan Miller explaining the violation that the improperly recorded documents created and proposed a resolution of recording an easement deed that meets the conditions of approval for the subdivision.
Staff is continuing to work with Coastal Commission staff in resolving this matter.
CDP 10-2013: Family Care Unit On November 22, 2013, the Coastal Permit Administrator authorized conditional approval 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 6.” 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.
During the processing of the subject permit, staff received a letter from Redwood Coast Land Conservancy, the holder of the public access easements, requesting the county not advance the permit until a resolution or ruling on the easement matter has been attained. 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.
Accordingly, the County attached Special Condition No. 2 to CDP 10-2013 which requires the
Prior to issuance of the Coastal Development Permit, the owner shall submit for review and approval by the County and the California Coastal Commission and then record an easement deed for public access to Redwood Coast Land Conservancy which satisfies the Special Condition #2 of the underlying permit that created the subject parcel. This action must be completed in order to consider the parcel legally created.
The execution of an irrevocable easement deed for public access shall consist of one 25 ft later [sic] public access easement for passive recreational use. The lateral easement shall be 25 ft 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.
This easement would overlie the existing public access easement already dedicated to the Redwood Coast Land Conservancy.
EXHIBIT NO. 3 Appeal No.
CDP Extension Request A-1-MEN-14-0003 No. 1-83-158-E25 (Miller) ) (Savoca
COASTAL RECORDSPARCEL MAP
PROJECT AERIAL IMAGEGuest Cottage/ Temporary Family Care Unit
PROJEPage 2 of 2IMAGE CDP Extension Request Image source: California Coastal Records Project, Image 201303879 Copyright (C) 2013 Kenneth & Gabrielle Adelman, California Coastal Records Project, www.Californiacoastline.org Signature on File Signature on File Signature on File Signature on File Signature on File Signature on File Signature on File