COUNTY OF SAN MATEO

Inter-Departmental Correspondence

Planning and Building Department

DATE:

November 16, 2009

BOARD MEETING DATE:

December 1, 2009

SPECIAL NOTICE/HEARING:

None

VOTE REQUIRED:

Majority

TO:

Honorable Board of Supervisors and Interested Parties

FROM:

Lisa Grote, Director of Community Development

SUBJECT:

Final Recommendations on the Midcoast Update Local Coastal Program Amendments

RECOMMENDATION

1.

Receive staff’s presentation and public comments regarding the Coastal Commission staff’s revised recommendations on the Midcoast Update Local Coastal Program amendments.

2.

Provide guidance to staff about presenting the County’s position on the revised recommendations to the California Coastal Commission at the public hearing scheduled for December 10, 2009 in San Francisco.

BACKGROUND

The upcoming California Coastal Commission (CCC) hearing on the Midcoast Local Coastal Program (LCP) Update is one of the final and most important steps in obtaining CCC certification of the amendments. It is the culmination of a ten-year effort to improve the policies and standards for development in the urban areas of El Granada, Princeton, Moss Beach, and Montara. If approved by the CCC, the County would, in most likelihood, need to accept changes determined by the CCC to be necessary to achieve Coastal Act consistency in order for the amendments to take effect.

For the past three years, the County has been working with CCC staff and other interested parties to resolve as many outstanding issues as possible. In February of this year, CCC staff released an initial recommendation that prompted a request by the County to postpone a March 2009 CCC hearing on the Update, and was followed by Board of Supervisors hearings on June 16 and July 7 to consider the significant revisions contained in the CCC staff’s recommendation. At the conclusion of the July 7 hearing, the Board of Supervisors authorized the Community Development Director to send a letter to the California Coastal Commission staff that identified the County’s concerns about CCC staff’s recommendation and requested a number of revisions (Attachment 1).

In accordance with the direction received from the Board, Planning and Building staff has continued to meet with the CCC staff and many issues have been resolved as a result of this collaborative effort. Although CCC staff’s final recommendation is not available at the time of this report, Planning and Building staff has been informed about much of what it will contain, and where the major points of disagreement remain. The CCC staff report will be published prior to the December 1, 2009 Board of Supervisors meeting, and an update on the status of unresolved issues will be provided at that time.

DISCUSSION

The following sections of this report identify the issues of concern that have been resolved by anticipated revisions to the CCC staff’s recommendation, and describe the issues that remain unresolved, including a new issue raised by CCC staff regarding the “grandfather” provisions of the amendment. The table included as Attachment 2 provides a summary of these issues.

Staff of the Planning and Building Department will coordinate with the District 3 Supervisor’s Office to present the County’s position on the unresolved issues to the CCC at the December 10, 2009 hearing in San Francisco. This presentation will identify the concerns and requested changes described in Section 2 of this report, as they may be refined and supplemented based on the feedback provided by the Board at its December 1, 2009 meeting. The County’s participation in the CCC hearing on the Midcoast Update will help avoid changes by the CCC that run counter to the County’s 2025 Shared Vision for a livable community, such as changes recommended by CCC staff that limit growth near transit and create impediments for projects that will result in more livable and connected communities.

1.

Resolved Issues

Of the nineteen major issues identified by the County in response to the CCC staff’s initial recommendation, thirteen have been resolved to the point that CCC and County staff are in general agreement. This is a result of the revisions to the CCC staff’s prior recommendation, as well as County staff’s recommended acceptance of certain changes that were previously identified as issues of concern, as detailed below.

a.

Stormwater Treatment and Control

As originally drafted, the CCC staff’s suggested modifications replaced the County’s proposed use of Countywide stormwater standards with seven new policies that would apply in the Coastal Zone only. This raised concerns about maintaining a consistent approach for protecting all watersheds in the County, and introduced policy language that was ambiguous, redundant, and out of place. As requested by the County, the CCC will be revising its recommendation to maintain the single policy and appendix approach proposed by the County, and will insert some additional language to ensure that it will effectively address Coastal Act requirements. Planning and Building staff has identified the need for some minor clarifications to the revised language, and anticipates that these changes will be included in the CCC staff’s final recommendation.

b.

Conflict Resolution

CCC staff has declined to accept the County’s request to delete the modification that removes a new policy allowing the County to resolve LCP policy conflicts in a manner that is most protective of significant resources. This is based on their interpretation that the Coastal Act limits the use of such a conflict resolution policy to Coastal Commission decisions. Although Planning and Building staff does not agree with this interpretation, we recommend that the Board of Supervisors accept the modification in the interest of moving the amendment forward, and because deleting this policy will not interfere with LCP implementation. Deletion of this policy maintains the status quo, under which the County retains the ability to balance policy conflicts in specific instances, including those related to the application of visual resource policies.

c.

Roadway Capacity

In an effort to carry out Coastal Act policies that require limited public service capacities to be reserved for priority land uses, the Commission staff previously proposed new policy language that would require the reservation of roadway capacities. CCC staff has agreed to delete this policy in response to County concerns about the method and feasibility of implementing such a policy.

d.

Formation and Expansion of Special Districts

CCC staff has agreed to either revise or delete the suggested modification that would allow the formation and expansion of special districts only if public service capacity issues such as water, sewer, and transportation are resolved. If retained, the suggested modification will be revised to match the Coastal Act policy language regarding special districts and avoid redundancy with existing LCP Policy 2.15.

e.

Use of Recycled Water

In the interest of increasing opportunities to conserve water resources, CCC staff has agreed to revise its recommendation in a manner that allows any type of development, rather than just existing and Coastal Act priority uses, to be provided with recycled water for irrigation purposes, in the event such water becomes available in the future. CCC staff’s concern about the possibility that the use of recycle water may be growth inducing will be addressed through the standards for the development of a water recycling project, including the method for allocating recycled water.

f.

Replacement of Private Wells with Municipal Services

As requested by the County, CCC staff will revise its recommendation to allow new water supply projects that serve properties currently on private wells irrespective of traffic volumes. (CCC staff’s previous recommendation prohibited any new water supply project until levels of service along Highways 1 and 92 improve to Level D or better during peak commuter times, and to Level E or better during peak recreation times.) CCC staff has agreed to this change based on an understanding that a water supply project to replace wells with municipal water supplies will facilitate better monitoring and management of groundwater resources, and that the potential growth inducing impacts can be addressed during the review and approval of the water supply project.

g.

Desalination

CCC staff has proposed new standards for desalination plants, including the requirement that they must provide a public source of water. The County has expressed concern that the proposed policy language is not clear about the type of facility that constitutes a “desalination plant” and therefore must conform to the new standards. For example, it is unclear whether private reverse osmosis systems would need to comply with the proposed requirements. The CCC staff has agreed to revise this modification to identify the type and size of desalination facilities that would trigger the new requirements so that they do not unnecessarily burden appropriate individual systems.

h.

Traffic Monitoring and Reporting

CCC staff has agreed to delete a suggested modification that would have required the County to submit annual traffic monitoring reports. This change recognizes the fact that the County does not currently conduct traffic monitoring, and that information regarding traffic volumes and levels of service along Highways One and Ninety Two are available through the California Department of Transportation.

i.

Public Access Along Highway 1

The CCC staff’s recommendation prepared for the March 2009 CCC hearing included two policy changes regarding public access improvements along Highway 1 that raised two concerns for the County and CalTrans. The first was a new policy requiring the County to open and operate a public access trail 365 days a year along the section of Highway 1 that will be abandoned once the Devil’s Slide tunnel is completed, if there is no other plan for accepting and managing this section of the California Trail. Although the policy was based on conditions of the Coastal Development Permit for the tunnel, it did not address the potential need for temporary closures due to habitat or safety concerns. The CCC staff will revise their recommendation to address this concern by referencing the fact that access along this trail is to be managed in accordance with the operations plan developed by the County and CalTrans in coordination with the Devil’s Slide Access Task Force.

The second concern had to do with revisions to LCP policies proposed by CCC staff that would require CalTrans to provide a recreation trail parallel to Highway 1, as well as Highway 1 pedestrian crossings, as part of any new or improved roadway project. CalTrans objected to this policy language because it was unclear how it would be applied to repair, maintenance, and minor improvement projects. CCC staff will address this concern by revising their proposed policy language in a manner that clarifies these requirements do not apply to repair and maintenance projects, and that the size and scope of the trail and crossing improvements shall be commensurate with that of the proposed roadway project.

j.

Transportation Management Plan

The Planning and Building Department agrees with the CCC staff’s recommendation to develop a comprehensive transportation management plan that addresses the impacts on transportation from buildout of the LCP. The Department has been concerned, however, about policy language proposed by CCC staff that requires the plan to be based on a study commissioned by the County that identifies the cumulative traffic impacts at buildout. These concerns are twofold. First, the Department would like to ensure that the focus of the plan be solution oriented, and that the required study will not detract from the limited resources available to identify and implement solutions. Second, to the degree that an updated evaluation of the traffic impacts at buildout is needed to develop appropriate solutions, that the County retain the ability to complete the analysis itself rather than having to commission a private entity to complete such a study. CCC staff has indicated its intention to revise the language of this suggested modification accordingly.

k.

Coastal Trail Planning

The policy modifications originally suggested by CCC staff included a new policy that would require the County to pursue a grant or other funding to conduct a coastal trail alignment study within two years from the date on which the amendment is certified. This mandate raised concerns about the County’s ability to independently allocate its limited resources in accordance with local needs and priorities. The CCC has agreed to revise this recommendation so that the County will not need to independently address the costs of planning and building the California Coastal Trail. The revised recommendation will retain the CCC staff’s suggested standards for coastal trail design and implementation, with which the County is in general agreement.

l.

Park Overlay for Burnham Strip

The CCC staff is continuing to recommend that the County revise its planning maps to include a “park overlay” for the Burnham Strip. Such an overlay has no direct relevance to the review of proposed development within this area because its only purpose is to identify areas where the acquisition of land for the development of park facilities should be considered. Nevertheless, the CCC staff is correct that the Montara, Moss Beach, and El Granada Community Plan established this overlay. Planning and Building staff therefore recommends that the County accept this modification.

m.

Permitted Uses on the Burnham Strip

CCC staff has agreed to revise its previously proposed modification that deleted roadside stands as permitted uses on the Burnham Strip and that allow outdoor art centers on a temporary basis only. Instead, the CCC will recommend that temporary roadside stands be permitted, and will delete the modification that allowed outdoor art centers on a temporary basis only.

2.

Unresolved Issues

a.

Growth Rate

CCC staff continues to recommend a reduction in the County’s proposed 75 residential units per year maximum growth rate to 40 units per year. This limit would apply to all forms of residential development except affordable housing units. CCC staff has agreed to the County’s request to exempt secondary dwelling units, but only if they have a contract rent or price affordable by low and moderate income households.

Another concern about this recommendation is that the relationship between the growth rate and CCC staff’s proposed new policies regarding adequate public services remains unclear. According to this new policy, no new development except single-family residences and visitor-serving uses may be permitted until levels of service along roads and highways exceed LOS D during peak commuter hours and LOS E during peak recreation periods. This would establish a moratorium on multi-family residential development (including affordable housing), office and neighborhood commercial uses, manufacturing or industrial uses, and coastal dependent uses until the flow of traffic improves on Highways 1 and 92.

In considering how to respond to this recommendation, it is useful to keep in mind that over the past five years (2004-2008), an average of 38 units have been approved annually. During this period, the maximum number of new units developed in one year was 50 in 2004, and the lowest number was 24 in 2008. The CCC staff’s proposed reduction in the growth rate should not, therefore, have a significant impact on the current rate of development.

It could, however, become a significant restriction on new development if economic conditions improve. While the County will always have the right to request an amendment to the growth rate, it is clear that such an effort would take significant resources. For example, pursuant to new policies recommended by CCC staff, the County will need to complete a comprehensive traffic management plan and document the adequacy of wastewater collection infrastructure in conjunction with such an amendment. It is therefore appropriate to assume that the growth rate determined by this amendment will remain in effect for many years to come.

Based on the current rate of development, and in acknowledgement of the significant infrastructure improvements needed to accommodate growth, the numerical limit may not be as important as the method in which it is applied. In this regard, Planning and Building staff has requested CCC staff to delete or clarify the new public service capacity as it relates to the growth rate. Planning and Building staff has also requested deletion of the requirement that second units document an affordable sale or rental price in order to be exempt from the growth limit. This is because second units can be assumed to be affordable due to limits on their size, and because documenting and monitoring the affordability of second units places unnecessary administrative demands and challenges on limited staff resources.

b.

Private Wells

CCC staff continues to recommend the prohibition of private wells in the urban area until a groundwater management plan is developed and incorporated into the LCP via future amendment, but has preliminarily agreed to remove the prohibition on septic systems that are built in accordance with County and Basin Plan standards. CCC staff has expanded their recommended policy regarding wells to require existing development served by wells to connect to a public water system, and abandon their well, once public water connections are available.

This recommendation remains problematic for a number of reasons, one of which is its application to the entire urban area. Staff from the County Department of Environmental Health has carefully reviewed the scientific data and analyses available to date, including the recent Kleinfelder report on Phase 2 of the Midcoast Groundwater Study, and concluded that it does not provide a basis for a temporary area-wide prohibition.

Another problem is the format in which the restriction on wells is imposed. The Government Code establishes procedures and requirements for enacting temporary moratoria, including findings, follow-up actions, and timelines. The LCP policy recommended by CCC staff does not address these requirements, and the process for amending this policy is not flexible or efficient enough to enable the County to effectively implement these requirements.

A third problem relates to the County’s ability to enforce the requirement to abandon a well and connect to a public water system. Some property owners may have a vested right to use well water. Others may not be able to afford the cost of the connection. Given the fact that the County adopted a resolution in 1989 that requires new well owners to connect to a public system when it becomes available, the policy recommended by CCC staff should be limited to wells constructed after the date on which this resolution was adopted. It should also be accompanied by language that identifies a trigger for enforcing this requirement (e.g., remodels of 50% or greater value than the existing structure).

Despite these problems, County staff is in general agreement that there should be a temporary restriction of new private wells in basins that have been documented to be at risk. Such a restriction should be implemented in accordance with the Government Code requirements referenced above and be accompanied by a plan for addressing the constraints that create the basis for the temporary moratorium. Phase 3 of the Midcoast Groundwater Study currently underway will provide valuable information in this regard.

In light of these circumstances, the Office of the County Counsel has drafted an ordinance amending the County’s well regulations in a manner that will temporarily prohibit new wells within specified areas of Midcoast groundwater basins. In addition to addressing the requirements of the Government Code, this approach is superior to the CCC staff’s proposed policy because it would apply in areas where development is excluded from coastal development permit requirements, which constitutes a significant portion of the urban area. Adoption of the ordinance, to be considered by the Board of Supervisors at its December 1, 2009 meeting, will render the CCC staff’s proposed policy unnecessary and provide a sound basis for its deletion.

c.

Public Works Capacities

The policy changes recommended by CCC staff continue to restrict the capacity of public works projects to that which can be supported by the existing or reasonably foreseeable capacity of other infrastructure. A new water supply project, for example, could not be designed to accommodate any growth until a level of service of D or better during peak commute hours, and a level of service of E or better during peak recreation periods, is reasonably foreseeable on Highways 1 or 92. Similarly, no roadway project that adds capacity for growth would be allowed until it is reasonably foreseeable that there are public water supplies available to accommodate such growth.

Planning and Building staff remains concerned about the challenges such a policy poses to the design, financing, permitting, and construction of major public works projects. We are particularly concerned about the potential impediments it would create for needed roadway improvements, and about restricting water supply projects needed to meet local needs based on recreational traffic problems generated outside of the region that may not be possible to resolve. The need to ensure that public works projects do not generate growth that will result in significant adverse impacts or that conflicts with the County’s land use plans can be effectively addressed through the environmental review and permitting process. The policy recommended by CCC staff unnecessarily complicates this issue and should be deleted.

d.

Prioritizing Service Capacities for Affordable Housing

CCC staff continues to be concerned about the LCP table established in the 1980s to determine how limited public service capacities would be reserved for priority land uses. This table assumed that there would be two distinct phases to buildout, and that service capacity would be reserved for priority land uses in conjunction with the public works projects needed to accommodate a second phase of buildout.

The reality of the current situation is that the only public water supplies available to serve new development in the urban Midcoast are in the Coastside County Water District service area. This supply must be allocated in accordance with the coastal development permit approved by the CCC for the Crystal Springs pipeline project, which accounts for land use priorities. The remainder of the urban area is in the Montara Water and Sanitary District service area, where there are no service connections available to serve new residences.

As a result, the only application of the LCP policy and table that reserve water service capacity for priority land uses will be to the review of new water supply projects. As currently certified, the table requires such projects to set aside water for Coastal Act priorities as well as for affordable housing at three designated sites. The amendments proposed by the County would increase the amount of water that must be set aside for affordable housing by an additional 40 units. Planning and Building staff maintains that CCC staff changes which delete this additional set aside, and that revise the table to give existing priorities for affordable housing lower standing than Coastal Act priorities, are neither necessary nor appropriate.

e.

Lot Retirement

CCC staff has agreed to modify their recommended policy on land divisions to exempt affordable housing projects from the requirement to retire an equivalent number of developable lots. They have not, however, made any revisions to address the County’s concern about how this would apply to subdivisions that may be required to legalize an existing lot of record in light of the precedence set by the recent court decisions that limit the Subdivision Map Act grandfather provisions to subdivisions created after 1929.

Planning and Building staff is concerned that the CCC staff’s proposed policy will place an unfair burden on property owners who must legalize existing holdings of land, and create significant new processing demands that exceed staffing resources. Existing County procedures for lot legalization include provisions that require such holdings to be brought into compliance with existing standards to the greatest extent feasible. Adding on an additional requirement to purchase land with an equivalent amount of development potential, and to record legal documents that set it aside as open space, is not warranted. It will also require the Planning and Building Department to process complicated legal documents on a more frequent basis.

Due to these concerns, the County requested that CCC staff revise the lot retirement requirement so that it will only apply to land divisions that create five or more new parcels. Planning and Building staff has requested the Commission staff to reconsider their rejection of this suggestion, or develop an alternative form of exempting subdivisions that legalize existing holdings of land from the lot retirement requirement.

f.

Rezoning of Bypass Lands

It is the County’s stated intent to maximize open space and recreation uses on land acquired and no longer needed by the State as a bypass to Devil’s Slide. However, neither the County nor CalTrans believes it is appropriate to rezone this land in a manner that limits development to those uses until certain issues are resolved. These include determining the rights-of-way that need to be reserved to provide access to private property, delineating areas needed by CalTrans for staging and maintenance purposes, and differentiating between areas that provide good opportunities for recreation and open space preservation and those that make sense for infill development.

State procedures for the disposal of excess lands provide the appropriate process for balancing these interests, and will be followed by the zoning changes that carry out these decisions. Nevertheless, CCC staff continues to recommend that these lands be rezoned for open space and recreation uses now. Planning and Building staff is currently working with CalTrans to refine the process and timeframe for the disposal and reuse plan in order to provide CCC staff with further assurance that rezoning at this point in time is not necessary or in our mutual best interests.

3.

New Issue Regarding “Grandfather Provision”

As is typical with new County regulations, the resolutions and ordinances that comprise the Midcoast Update would only apply to applications received after the County adopted the new standards. CCC staff has recently identified their concerns regarding this “grandfather provision,” which includes the extent and nature of project applications that were filed prior to the County’s approval of the amendments, and a conflict with the CCC’s policy that all coastal development permit applications should be held to the standard of review in effect at the time that a decision on the application is rendered.

It is unclear whether this concern will result in a recommendation from CCC staff that requires the County to adjust its grandfather policy. Planning and Building staff is working with CCC staff in an effort to avoid such a recommended modification because it raises issues of fairness and represents a departure from standard County procedures.

REVIEWING AGENCIES

County Counsel

Environmental Health

Parks Department

Public Works

FISCAL IMPACT

The County has committed significant staff and financial resources towards developing the Midcoast Update and completing the Coastal Commission certification process. A timely and successful resolution of the issues identified by this report, as necessary to obtain certification of the amendments, is needed to realize the objectives of this investment and avoid further strains on limited County staffing and financial resources.

ATTACHMENTS

1.

July 17, 2009 letter from the San Mateo County Community Development Director to CCC Deputy Director Charles Lester

2.

Summary Table