Planning and Building Department
March 29, 2010
BOARD MEETING DATE:
April 13, 2010
Honorable Board of Supervisors
Jim Eggemeyer, Interim Director of Community Development
Consideration and Analysis of the California Coastal Commission’s Action on the County of San Mateo’s Midcoast Update Local Coastal Program Amendments
Receive staff’s presentation and public comments regarding the California Coastal Commission’s December 10, 2009 action on the Midcoast Update Local Coastal Program (LCP) amendments.
Identify any additional information or analysis needed by the Board to respond at its May 11, 2010 meeting to the California Coastal Commission’s action.
On December 10, 2009, the California Coastal Commission (CCC) denied certification of the Midcoast Update LCP amendments submitted by the County in January 2007. The CCC then voted to approve the amendments with 72 changes, as recommended by its staff (a copy of the CCC staff recommendation is available at http://documents.coastal.ca.gov/reports/2009/12/Th18a-12-2009.pdf). The CCC’s action did not include the revisions to the CCC staff’s recommendations requested by the County, which were formulated after three Board of Supervisors hearings on the CCC staff recommendation, conducted in June, July, and December of 2009.
The Board of Supervisors must now decide whether to accept the changes adopted by the CCC, and has six months from the date of the Commission’s action (i.e., until June 10, 2010) to do so. The Board has the following options in connection with this matter:
Adopt a resolution to accept the changes in their entirety. The amendments, as revised by the CCC, would take effect on the date that the CCC determines that the resolution is legally adequate;
Adopt a resolution to reject the changes, which would result in the County retaining the existing LCP as the standard of review for coastal development permit applications;
Direct staff to develop an alternative version of the update that would undergo local review approval and then be resubmitted for CCC certification; or
Request a one-year extension to the six-month statutory timeframe in which the County must act on the CCC’s proposed changes in order to have more time to evaluate the above options.
Staff recommends that the Board of Supervisors consider each of the above options, and identify any additional information it may need to make a final decision. Staff will apply the Board’s feedback to the development of a recommended course of action, which will be presented to the Board at its meeting of May 11, 2010.
The County’s response to the CCC’s action will determine whether the policy changes requested by the County, as modified and supplemented by the CCC, will take effect. The factors to consider therefore include the consequences of accepting the CCC’s modification, and of losing the beneficial changes included in the County’s proposal. The following discussion is organized accordingly - the first section describes and analyzes the impact of accepting the CCC’s modifications, and the second section addresses the County’s proposed amendments that will be lost if the modifications are rejected.
Description and Impact of Coastal Commission Changes
On December 1, 2009, the Board of Supervisors considered the CCC staff’s proposed changes to the update, and grouped its concerns into the seven issue areas discussed below. The Planning and Building Department presented these concerns to the CCC at its December 10, 2009 hearing, along with a request that the CCC modify certain of the changes proposed by its staff. Notwithstanding these efforts, the CCC adopted its staff’s recommendation without change.
Issue 1: Lot Retirement
Description: The Coastal Commission’s modifications include a new policy requiring all land divisions in the Midcoast, other than those that are for the purpose of developing an affordable housing project, to retire development rights on a number of existing legal lots in the Midcoast equal to the number of lots to be developed.
Analysis: Existing parcel configurations, infrastructure constraints, and subdivision regulations strictly limit the number of new lots that can be created in the urban Midcoast. The few areas where subdivisions may be allowed offer opportunities for desirable infill development that provide streetscape and infrastructure enhancements, as well other contributions to public services and the local economy. The lot retirement program would add an onerous requirement to current subdivision review procedures, and present a significant financial and logistical obstacle to beneficial projects.
As devised by the Coastal Commission, the lot retirement requirement would apply to applications for Conditional Certificates of Compliance (CCOC), which are used to verify lot legality.1 The need for vacant landowners to obtain a CCOC in order to proceed with development applications has become a more significant matter as a result of recent court decisions regarding the status of subdivisions created prior to 1937, which includes many of the subdivisions in the Midcoast. If the County accepts the CCC’s modifications, the owners of property that must obtain a CCOC would need to purchase other vacant developable lot(s) in order to “legalize” their lot(s) and obtain development approvals. This may include urban lots that are currently surrounded by development and which all parties assumed were legal prior to these recent decisions.
Whether it is applied to subdivisions or CCOCs, the application of a lot retirement requirement would pose potential legal issues for the County. In order to justify such an exaction, it would be necessary to find a connection between the impact of the project and the mitigation being required. In other words, the requirement to retire lot(s) must be based on the actual effect of the subdivision or CCOC. The level of mitigation also needs to be proportional to project impacts. That is, the cost and benefit of lot retirement must be roughly equivalent to the degree of impact caused by a subdivision or CCOC. It is unknown whether the lot retirement program would meet these tests if legally challenged. If the County accepts and implements the lot retirement program, it will bear the burden of defending any legal challenges to this policy.
Such legal analyses, as well as other aspects of implementing a lot retirement program, would have a significant workload impact that exceeds current resources. Evaluating the development potential of lots proposed for retirement and reviewing the legal agreements necessary to permanently extinguish development rights are some examples of the complex procedures that would need to be established to carry out this program.
Further, preventing the program from resulting in a scattering of vacant lots that causes undesirable development patterns and long-term maintenance problems, such as illegal dumping and weed abatement, is another important consideration. It may be possible to work with CalTrans to focus lot retirement efforts in the Devil’s Slide bypass right-of-way, which could help preserve the open space value of this area and provide potential recreation benefits. This would not, however, resolve the issues of fairness, legal concerns, and resource constraints described above.
Regardless of how the County responds, the CCC may still require lot retirement through its appellate authority. The CCC and other interested parties have the ability to appeal County approvals of subdivisions and CCOCs, and may pursue lot retirement with or without the new policy. The County must therefore evaluate whether its concerns about the lot retirement requirement outweigh an interest in avoiding appeals.
Issue 2: Well Prohibition
Description: The CCC’s modifications prohibit new wells in the Midcoast urban area “unless authorized pursuant to a groundwater management plan incorporated into the LCP,” and require existing development served by wells to connect to the public water system once connections become available.
Analysis: The well prohibition proposed by the CCC would preclude the development on all vacant lots in Montara and Moss Beach that are outside of the coastal development permit Categorical Exclusion Area2 for an indeterminate amount of time. This is because no new water connections are available within the Montara Water and Sanitary District (MWSD) service area, and this is not expected to change in the near future, as the Coastal Commission recently conditioned MWSD’s Public Works Plan to prohibit new service connections. If the CCC’s LCP modifications are accepted, no new development will be able to occur within the urban portion of MWSD’s service area until MWSD is able to secure new public water supplies and amend their Public Works Plan, or the County develops a groundwater management plan that documents the long-term sustainability of wells to the CCC’s satisfaction. Either possibility is many years out and far from guaranteed.
The CCC’s proposed interim well prohibition would have slightly less of an effect in Miramar and El Granada, where a limited number of new water connections are available from the Coastside Community Water District (CCWD). The actual availability of water connections is difficult to determine because existing connections can be bought and resold at privately negotiated prices. As a result, the section of the proposed well policy that requires existing development to abandon wells and connect to the public water system presents some significant implementation challenges. For example, how will applicants and decision makers know if a water connection is for sale from a private party? At what point would the cost of purchasing such a connection become an unreasonable requirement?
Other aspects of the CCC’s proposed well policy that remain unclear include how it would be applied to vacant lots that have an existing well, and to redevelopment projects or additions that will result in increased withdrawals from an existing well. Planning and Building staff have requested CCC staff to identify their position on this matter, but have not received a definitive answer. As a result, the County needs to consider the possibility that the CCC will interpret the policy in a manner that could result in an interim prohibition on the expansion of any development that relies on a well.
Another factor to consider is that like the lot retirement requirement, the CCC’s proposed well policies present legal issues. Vacant lot owners who are unable to obtain water connections have asserted that a well prohibition would unfairly deprive them of their property rights. Acceptance and application of these policies therefore presents some legal concerns.
Also like the lot retirement requirement, the CCC may attempt to enforce a well prohibition through its appellate authority, with or without certification of the LCP modifications. (Existing LCP Policy 2.32 establishes the authority to limit wells that exceed the safe yield of groundwater basins.3) However, in contrast to the lot retirement policy that applies to subdivisions, projects that involve wells are not always appealable, either by the CCC or interested parties.
The crux of the issue is whether a blanket prohibition on wells is necessary or appropriate. The Phase 3 Midcoast Groundwater Study will provide important information in this regard.4 Completion of the report is a significant step forward in the County’s effort to develop a groundwater management plan for the area. The County continues to study these basins, and applies a rigorous review of all new well proposals. Accepting the CCC’s modification will remove the County’s discretionary authority to apply a more specific subbasin approach if well restrictions become necessary.
Issue 3: Growth Limits
Description: The CCC’s modifications reduce the maximum annual growth rate from 75 to 40 residential units per year and prohibit any other type of development, other than Coastal Act priority uses (those that require a coastal location or support coastal industries and recreation), if levels of service (LOS) along local roadways are worse than D/E during peak commute/recreation times.5
Analysis: Acceptance of the suggested policies would lower the maximum growth rate from 75 to 40 residential units per year and preclude the development of new neighborhood commercial, office, manufacturing, and industrial uses until current traffic on Highways 1 and 92 improve. Restricting such development will limit the creation of new opportunities for local employment that could alleviate commuter traffic. The duration of this restriction is unknown because it depends when and if the CCC’s proposed service level minimums are achieved. Documenting that these minimums are being achieved also presents monitoring issues, as levels of service are not currently being recorded during peak recreation periods.
The actual impact of these policies is partly dependent on the rate and extent to which non-residential development is being proposed. There are currently three pending projects that include non-residential non-Coastal Act uses that are not priority uses: the Big Wave project, and two proposals for warehouse and office uses in the Princeton area.
Issue 4: Grandfathering
Description: The Coastal Commission’s modifications delete provisions that limit the application of the amendments to projects proposed after the date of its effectiveness, and add new language that applies the new policies and ordinances to pending projects.
Analysis: It has been a longstanding County policy to apply the development standards in place at the time an application is submitted, and to limit the application of new standards to applications submitted after the new standards are adopted. The intent of this policy is to avoid changing the rules on applicants that have made an investment to design their projects to comply with the rules in place at the time of their application submittal.
It is estimated that the CCC’s modification to this policy will impact between eight and fifteen pending projects, including the three projects mentioned above, and two pending subdivisions that would become subject to the lot retirement requirement. The remainder of the projects that would be impacted by this change are those that are outside of the Categorical Exclusion Area and rely on a well for water supply.
Issue 5: Public Works
Description: The CCC policy changes restrict the capacity of public works projects to that which can be supported by the existing or foreseeable capacity of other infrastructure, and establish a minimum roadway level of service of D/E during peak commute/recreation times.
Analysis: The Planning and Building Department supports the concept of well-coordinated public works projects. However, the restrictive policy language adopted by the CCC prohibits any infrastructure project that accommodates growth from moving forward until existing traffic conditions improve, wet-weather sewer overflow problems are solved, and water supplies for current and future development are secured. Requiring the solution for every component of the public works infrastructure to be known and implemented in coordination with each other is not realistic and will pose a potentially unsolvable problem for needed roadway and water supply improvements.
Regardless of the County’s opinion of this policy language, it has already been applied by the CCC as conditions of approval in the permit for Coastside Community Water District’s (CCWD’s) Crystal Springs pipeline, as well as in the Montara Water and Sanitary District’s (MWSD’s) Public Works Plan. Since all public works projects are appealable, the CCC has the ability to apply this policy language to roadway and other infrastructure projects irrespective of the way in which the County responds to the modifications.
Issue 6: Land Use Priorities
Description: The CCC’s suggested modifications include change to LCP policies and tables that set priorities for the allocation of limited water supplies. These changes require that adequate public service capacities be reserved for Coastal Act priority uses before any can be set aside for local priorities such as affordable housing.
Analysis: Water supply is a major constraint for new development in the urban Midcoast, as new connections are either not available, or for the most part already spoken for. As a result, the primary impact of the policy change is on new water supply projects.
Issue 7: Rezoning of Bypass Lands
Description: The CCC’s action requires the County to rezone the Devil’s Slide bypass alignment from Resource Management and Low Density Residential to Community Open Space.
Analysis: The County shares the CCC’s objective to maximize recreational opportunities that are consistent with resource protection along the former highway bypass lands that may no longer be needed by CalTrans once the tunnel is completed. The concern is with the timing of the rezoning, and whether it should occur in conjunction with the creation of an access plan for the area.
Analysis of Beneficial Amendments at Stake
Another important factor to consider in determining how the County should respond to the CCC’s action is the importance of the amendments adopted by the County, which will be rendered moot if the CCC’s modifications are rejected. The following sections of this report identify the most significant changes that were included in the County approved amendments, and analyze how the County’s response to the CCC’s action may impact the County’s ability to implement these changes.
Issue 1: Updated Buildout, Water, and Sewer Generation Estimates
Description: The amendment package submitted by the County revises the LCP to provide a more accurate estimate of the amount of water and wastewater treatment capacity required to serve the maximum level of development allowed by the LCP.
Analysis: Estimates of infrastructure capacity needs are important to apply to the creation of land use policy and the regulation of public works projects. Once the LCP is adopted, these estimates essentially become background information that explains some of the basis for LCP policies, as well as guidelines for infrastructure expansion projects. They do not provide a regulatory standard for the density or intensity of development allowed, or for the design of public works projects, which are subject to detailed case specific reviews. While it would be unfortunate to lose the accuracy improvements contained in the submittal, the County’s response to the CCC’s action will not have any substantial impact on the planning and development process.
Issue 2: Growth Rate and Buildout Reductions
Description: If the County rejects the CCC’s changes, the existing growth rate of 125 residential units per year will remain in effect, rather than the 75 units per year proposed by the County’s amendment. Proposed new policies that provide incentives for lot mergers will also be lost.
Analysis: Current development trends are having a much more significant impact on the rate of development in the urban Midcoast than the growth rate. The level of development anticipated in the next few years is expected to be much less than 75 units per year. The County’s response to the CCC’s action will therefore not have any impact on the rate of development in the near future. With respect to mergers, the loss of incentives will reduce voluntary participation by landowners, but the County will retain the authority to require merger in conjunction with new development as necessary to maximize compliance with existing standards.
Issue 3: Enhanced Open Space Protection and Recreation Opportunities
Description: Policy changes included in the County’s submittal would benefit open space preservation and public access and recreation opportunities among other ways by creating the El Granada Gateway District for the Burnham Strip, reducing floor area and height limits in the RM-CZ and PAD Districts, and requiring pedestrian improvements for Highway 1 projects.
Analysis: Rejection of the CCC’s action will maintain residential development as a permitted use, subject to the issuance of a use permit, on the Burnham Strip, and thereby hamper efforts to retain the open space and potential public recreational value of this area. It will also eliminate new standards intended to improve residential development standards in the RM and PAD zoning districts. Despite the loss of these standards, other existing policies related to view protection and design compatibility could be used to achieve the same objectives of the new standards. Similarly, the loss of proposed policies to require pedestrian enhancements in conjunction with roadway development will not prevent the County from pursuing pedestrian improvements as part of its review of roadway projects.
Issue 4: Improved Housing and Infrastructure Policies
Description: The amendments included in the County’s submittal contain new incentives for affordable housing units, as well as new standards to reduce traffic congestion on Highway 1. Affordable housing incentives include greater flexibility regarding parking standards for affordable units. Improvements to traffic standards include a policy that lowers the existing threshold for a Traffic Demand Management Report from projects that generate more than 100 average daily trips to those that generate 50 daily trips.
Analysis: Rejection of the CCC’s action will result in the continued application of parking standards for development, which can create a hardship for development of smaller lots that provide good opportunities for infill development. Nevertheless, the County will retain some flexibility in applying these standards through the parking exception and variance process. With regard to traffic policies, the loss of the amendments will not eliminate the County’s ability to apply a reasonable level of mitigation during project specific review.
Issue 5: Requirements for Water Quality Protection
Description: The amendments submitted by the County include new policies and ordinances that limit new impervious surfaces and establish new winter grading controls.
Analysis: The County has the ability to require sufficient and appropriate methods of water quality controls pursuant to existing LCP policies and the Stormwater Pollution Prevention Program. If the County rejects the CCC’s modification, the loss of the County’s proposed new policies would be unfortunate because project designers and reviewers will not be provided with quantifiable and specific standards that help implement water quality protection objectives.
Shared Vision 2025: Acceptance or rejection of the CCC’s action will impact the County’s ability to carry out Shared Vision 2025. Acceptance of the modifications will introduce new standards that will reduce opportunities for infill development that promotes livable, healthy, and prosperous communities. Rejection of the modifications will result in the loss of County policies designed to advance these objectives.
This report was reviewed by County Counsel and determined to be acceptable in form and content.
Acceptance of the CCC’s action will place additional workload demands on limited staff resources, among other ways by introducing development standards that necessitate new monitoring and processing procedures. Resubmitting the County proposed policy changes as part of future LCP amendments would require the dedication of additional Department funds.
1 Regular or Type A Certificates of Compliance are issued for lots that were established in accordance with the rules in place at the time they were created. Conditional or Type B Certificates of Compliance are required for lots that were created in a manner that was not in conformance with the rules in effect at the time the division occurred.
2 A significant portion of the urban Midcoast is within a “Categorical Exclusion Area,” where the development of a single-family residence and associated utilities (e.g., water well) is exempt from coastal development permit requirements. The well prohibition proposed by the Coastal Commission would not apply within the Categorical Exclusion Area, unless the Exclusion Area is amended or rescinded by a future Coastal Commission action.
3 Policy 2.32 states, in part:
Require, if new or increased well production is proposed to increase supply, that … [t]he amount pumped be limited to a safe yield factor …
4 The Phase 3 report is due to be submitted by the consultant to staff by early April 2010. A summary of the report’s data and conclusion will be included in staff’s April 13, 2010 presentation.
5 Level of service is a qualitative description of roadway operations ranging from LOS A, or free flow conditions, to LOS F, or completely jammed conditions.