Inter-Departmental Correspondence

Planning and Building Department



November 12, 2010


November 30, 2010


10-Day Notice





Honorable Board of Supervisors



Jim Eggemeyer, Community Development Director



Adoption of a resolution and ordinances amending the Local Coastal Program Land Use Plan and Zoning Regulations for resubmittal of the Midcoast Update to the California Coastal Commission for certification.




Adopt a resolution directing staff to submit the proposed Local Coastal Program (LCP) Land Use Plan amendments for Coastal Commission review and certification, without modification.



Adopt the ordinances amending the affected portions of the County Zoning Regulations for Coastal Commission review and certification, without modification.



On December 10, 2009, the California Coastal Commission (CCC) denied certification of the Midcoast Update Local Coastal Program (LCP) amendments proposed by the County, then voted to conditionally approve the amendments if County accepted 72 changes recommended by the CCC staff. In April and May of 2010, the Board of Supervisors conducted two public hearings regarding the County’s response. On May 11, 2010, the Board of Supervisors adopted a resolution directing County staff to utilize the resubmittal process, which allows the County to accept the CCC’s modifications it agrees with, and to propose alternative ways of addressing the CCC’s policy changes it finds problematic.



The County’s primary concerns with the CCC’s modifications involve those regarding lot retirement, water wells, growth restrictions, infrastructure capacity, priority uses, and the effect of the amendments on currently-pending applications. The recommended resubmittal, addresses these issues by:


Establishing an in-lieu fee program that can be administered by a third party that would implement the CCC’s suggested lot retirement requirement, and narrow its application to delete from its scope Conditional Certificates of Compliance that legalize existing vacant parcels that comply with minimum lot size standards.


Postponing the effective date of the CCC-recommended private well prohibition until five years from the date on which the amendments become effective. During this time, the County will continue its efforts to develop a groundwater management plan that addresses the future role of private residential wells play in meeting water needs. In addition, the resubmittal establishes a more rigorous CDP review process for wells that are proposed during this 5-year period.


Exempting public works projects and non-residential development within neighborhood-serving commercial districts from the CCC’s suggested growth restriction that, if adopted, without this exemption, would prohibit any development other than Coastal Act priority uses and 40 residential units per year until existing peak traffic levels are reduced on Highways 1 and 92.


Retaining “grandfathering” provisions that exempt from amendments in the update do not apply to coastal development permit applications deemed complete prior to the effective date of the resubmitted amendments.


Revising CCC’s suggested Public Works Policies in manner that removes the CCC’s proposed prohibition against the expansion of public works capacities until existing peak traffic levels are reduced on Highways 1 and 92. Rather than using roadway Levels of Service as a threshold for infrastructure capacity increases, the resubmittal requires that the amount of new or expanded capacity be determined by considering, among other things, the information contained in the Transportation Management Plan required by new Policy 2.57.2.


Accepting CCC’s modifications that give coastal-dependent and coastal-related uses higher priority than affordable housing for limited public service capacities, and that rezone lands designated for the former Highway 1 bypass from Residential and Resource Management to Community Open Space and establish a “Linear Park” overlay designation.


In conjunction with the adoption of the recommended resolution and ordinances, the Board of Supervisors must determine the procedural method by which the associated LCP amendments will be submitted to the Coastal Commission. Staff recommends that the amendments be submitted for approval without modification, which prevents the Coastal Commission from suggesting additional changes, but results in denial of the amendments if the CCC finds them inconsistent with the Coastal Act.


Accordingly, the following discussion is organized into two sections. The first section of this report addresses the specific CCC’s modifications of concern to the County, and describes the way in which the resubmittal seeks to resolve these issues. The second section of this report describes the options the County has for resubmitting the revised amendments to the CCC, and explains the reasons why Planning and Building staff recommends that it be submitted for CCC consideration without modification.



Proposed Response to the CCC’s Suggested Modifications of Concern



Lot Retirement Requirement


The CCC’s proposed modifications include a new policy that would require 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. As crafted by the CCC, this requirement would also apply to applications for Conditional Certificates of Compliance (CCOC), which are used to establish lot legality.1


During prior Board of Supervisors hearings regarding the CCC’s modifications, concerns were raised regarding potential legal challenges if the County agrees to apply this requirement. Additional concerns were raised regarding the potential patchwork of retired lots and the need to maintain such lots, as well as the significant amount of new work that would be required to administer the program.


In an effort to mitigate these concerns, Planning and Building staff met with Coastal Commission staff on April 30, 2010, and discussed an alternative approach that narrows the application of the lot retirement requirement for CCOCs to those that legalize substandard lots (i.e., lots that are smaller than the minimum size required by current zoning). Establishing an in-lieu fee program that allows applicants for projects that are subject to the lot retirement requirement to deposit a specified amount into a dedicated account to be used by the County, or an acceptable third-party organization such as a land trust, to purchase vacant developable lots was also discussed. In addition to freeing applicants from having to independently locate and purchase vacant developable parcels, it provides an opportunity for the County, or a selected third-party organization, to prioritize areas for lot retirement that provide maximum benefit for resource protection recreational enhancements.


The recommended resubmittal incorporates these compromises, and allows the details of the in-lieu fee program to be worked out at the staff level. These details:


The method for establishing the amount of the fee, which must account for costs associated with program administration as well as property acquisition and maintenance; and


The specific criteria for measuring the development potential of lots proposed for retirement and for prioritizing the acquisition of these lots.


The resubmittal does not, however, resolve concerns regarding potential legal challenges to the lot retirement requirement. The legal risks associated with the adoption of this requirement will need to be addressed on a case-by-case basis, which may subsequently affect the way in which this requirement can be applied and enforced.



Temporary Well Prohibition


The CCC’s proposed modifications would 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. County concerns regarding this modification include whether there is an adequate scientific basis to deny a property owner’s application to drill a well that meets Environmental Health standards, and the impact that the temporary prohibition will have on infill development opportunities, particularly within the boundaries of the Montara Water and Sanitary District, where no new water connections are currently or expected to become available.


The County is in agreement with the CCC’s suggested development of a Groundwater Management Plan, and the Planning and Building Department has partnered with the Resource Conservation District in pursuing the development of such a plan. The point of disagreement is the way in which applications for new wells will be addressed while this plan is being developed and approved, which is estimated to take five years. Rather than prohibiting new wells during this period, the Planning and Building Department recommends that the temporary prohibition take effect five years from the effective date of the resubmitted amendments, and only if the suggested Groundwater Management Plan has not been incorporated into the LCP.


As described below, this proposal does not limit the authority of the County to prohibit private wells during the time that the Groundwater Management Plan is under development. Grounds for the denial of a well application include, but are not limited to, instances where a municipal connection is available, Environmental Health standards are not met, or other environmental risks or conditions exist.


Given existing well standards and the low rate of growth, the allowance of a limited number of wells over a 5-year period is not expected to have adverse impacts on coastal resources. The resubmittal incorporates the CCC’s suggested modifications that limit the number of residential units allowed per year to 40. Of the allowed residential units, only a small percentage of them will need to rely on wells for water. Over the past 10 years, the number of new single-family residences constructed within the project area has averaged 28 per year. Within the Montara and Moss Beach area, where water connections for new development are not available, the average over the past 10 years has been 11 new residences per year, and the average over the past five years has been eight new residences. Thus, based on the actual rate of growth, the potential expansion of wells over the next five years is estimated to be a maximum of about 10 per year. With the application of existing Environmental Health regulations, this will not result in adverse impacts to coastal resources or local water supplies.


Finally, with regard to existing development that relies on private wells, the resubmittal includes new policy language to implement the requirement that such development connect to public water systems. The requirement for such a connection was established on September 12, 1989, pursuant to Resolution 53059 (Attachment C), but has lacked an effective enforcement mechanism. To address this need, the resubmittal allows remodels and additions to residences that rely on private wells constructed after September 12, 1989, only if the project includes a connection to the public water system and abandonment of the existing well.



Growth Limits


The recommended resubmittal incorporates the CCC’s reduction in the maximum annual growth rate within the Midcoast urban area from 75 to 40 residential units per year, and proposes an alternative to the CCC’s proposed limits on non-residential development other than Coastal Act priority uses.2 As suggested by the CCC, such development may not be approved if the levels of service (LOS) on roads and highways exceed LOS D during commuter peak periods and LOS E during recreation peak periods.


According to the 2009 Congestion Management Plan Monitoring Report, existing LOS on Highways 1 and 92 are at LOS D and E during peak commute periods. As a result, accepting the CCC’s suggested modification would have the effect of prohibiting any development other than Coastal Act priority and residential uses until existing traffic levels improve. The County’s concern is that this will prevent neighborhood commercial development that serves the community, creates local jobs, and thereby reduces commuter traffic.


In response to this concern, CCC staff indicated its willingness to consider an exception to this restriction for “smart-growth” development that will help alleviate circulation problems. While there may be some merit to this approach, the difficulty lies within the definition of, and standards for, “smart growth.” Standards that prevent any generation of vehicle use during peak periods are not only difficult to create and enforce, but can create a disincentive for investments in new development that is local serving but unable to guarantee circulation benefits.


Rather than expanding regulations over development that will provide local jobs and services, the resubmittal proposes to exempt non-residential development in the small areas of the Midcoast designated for neighborhood commercial development from the CCC’s proposed traffic based growth limit. There are five small nodes within the urban Midcoast designated for such development: three along Avenue Alhambra in El Granada, one along Highway 1 in Moss Beach, and one along Highway 1 in Montara. The limited type, intensity, and geographic distribution of non-residential development that can occur in these areas will not have a substantial effect on regional traffic volumes, and provides an opportunity to reduce the number of local vehicle trips taken between Midcoast neighborhoods.


Another change to the CCC’s LOS related growth restrictions contained in the resubmittal eliminates the use of LOS D and E during peak commute and recreation periods as a regulatory threshold for Public Works capacity increases, as discussed in Section E, below.





The Coastal Commission’s modifications delete provisions that apply the amendments only to projects submitted with complete application after the date on which the amendments take effect. If accepted, this change would apply the new policies and regulations contained in the update to project applications that were submitted and complete before the new standards existed. This runs counter to the County’s interest in, long-standing practice of, avoiding mid-stream rule changes to projects where a significant investment has been made towards complying with the rules in place at the time the application was submitted.


In accordance with the potential compromise recently discussed with CCC staff, the proposed resubmittal narrows the originally proposed grandfathering provisions so that the amendments do not apply to any applications that have been “deemed complete” as of the effective date of the amendments. What this means is that the amendments would not apply to coastal development permit applications that contained all the information required by the LCP prior to the amendments effectiveness, as confirmed by the Planning and Building staff and relevant decision makers. Applications that were incomplete as of the


date of the update’s effectiveness must conform to the provisions of the amendment.



Public Works Capacities


The CCC’s suggested policy changes that restrict the capacity of public works projects to those that can be supported by the existing or foreseeable capacity of other infrastructure. While the Planning and Building Department supports the concept of well-coordinated public works projects, the policy language adopted by the CCC prohibits any individual infrastructure project that accommodates growth from moving forward until existing traffic conditions improve. This new policy presents a potentially unsolvable problem with respect to needed water supply and wastewater collection improvements.


In an effort to resolve this concern, the resubmittal removes the CCC’s proposed prohibition against the expansion of public works capacities until existing peak traffic levels are reduced on Highways 1 and 92. This change does not eliminate the County’s commitment to considering roadway capacity issues when reviewing projects that expand water and wastewater collection services. For example, rather than using roadway Levels of Service as a threshold for infrastructure capacity increases, the resubmittal requires that the amount of new or expanded capacity be determined by considering, among other things, the information contained in the Transportation Management Plan required by CCC’s suggested Policy 2.57.2, which is included in the resubmittal.



Public Service Priorities


The CCC’s suggested modifications change 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.


The County has expressed its opposition to these changes due to their potential impact on affordable housing projects, and because they are inconsistent with sections of the Coastal Act that encourages the provision of affordable housing. Additionally, the changes affect sections of the LCP that were not a part of the County’s proposed amendments, and undo policies previously certified by the Commission that gave affordable housing the same priority as Coastal Act priority uses.


Despite these objections, the CCC staff has indicated its inability to support deletion of this modification based on an interpretation that it is necessary to achieve Coastal Act consistency. Given the CCC staff’s position and the limited practical effects of the changes discussed below, these modifications have been reluctantly incorporated into the proposed resubmittal.


As modified by the CCC, LCP Table 2.17 has been clarified to state that the prescribed amount of water reserved for state and local priority land uses “shall be reserved … when [the] service provider develops new supplies to serve new connections on vacant land.” Accordingly, policies regarding the types of uses that get first priority for water will be applied at the time that any new water supply project that will provide new connections is proposed. This means that CCC’s modifications which prioritize Coastal Act uses over affordable housing will only impact affordable housing development if the proposed capacity of new water supply projects are limited to what is needed to accommodate reasonably foreseeable Coastal Act priority uses. Any available capacity above this amount can and should be prioritized for affordable housing.



Rezoning of Highway One Bypass Lands


LCP modifications suggested by the CCC regarding the land formerly designated for the Highway 1 bypass call for the rezoning of this area from Residential and Resource Management to Community Open Space with a Linear Park overlay. The County shares the CCC’s objectives of protecting the scenic and natural resources of this area, and providing public access and recreation opportunities that are compatible with these resources. The issue associated with the CCC’s proposed rezoning of this area is a matter of timing, as the County has indicated its preference to process such a zoning amendment after questions related to trail locations, paper streets, and other factors related to the California Department of Transportation’s (CalTrans) disposition of this land are resolved.


The County’s interest in resolving these issues prior to rezoning the bypass lands has been largely based on the input that has been received from CalTrans staff. CalTrans representatives were present at the December 10, 2009 CCC meeting where the CCC adopted the suggested modifications that call for the rezoning to occur now. At that meeting, CalTrans staff worked with the CCC staff on changes to the modifications that were incorporated into the CCC’s final action. Thus, it appears as if CalTrans’ concerns regarding the rezoning have been effectively resolved.


With CalTrans’ apparent agreement with the suggested modifications adopted by the CCC, Planning and Building staff see no reason not to include these changes in the resubmittal. We continue to believe that processing the rezoning at a later date, in coordination with the development of a detailed plan regarding future use and ownership of these lands, makes the best sense from a planning perspective. However, in the interest of making the compromises needed to result in a successful conclusion to this update effort, and in light of CalTrans input to the CCC on this matter, the suggested rezoning is included in the recommended resubmittal.



Procedural Considerations


As discussed in the Background Section of this report, the County must decide whether to submit the amendments in a manner that allows the CCC to suggest further modifications that it asserts are necessary to achieve consistency with the Coastal Act. The alternative is to submit the amendments for CCC approval without modification, which would mean that any Coastal Act inconsistency that may be identified by the CCC would result in the denial of the resubmitted update.


The method of submittal was a matter of discussion at Board of Supervisors hearings regarding the original amendments in 2006. In order to maintain opportunities to work with the CCC to resolve any problems, while seeking to preserve the integrity of carefully crafted and negotiated changes, the amendments were submitted subject to modification, with a request that such changes be kept to the absolute minimum.


The County’s commitment to working cooperatively with the CCC toward effective implementation of the Coastal Act is represented by, among other things, the Planning and Building Department’s effort to reach agreement with CCC staff on the contents of the update. This has been a 10-year process that has involved CCC input at numerous points. Most recently, the dialogue has focused on very specific policy language and approaches. Of the 72 changes suggested by the CCC, five issues remain.


Notwithstanding the benefits of this exchange, staff believes that the project should be concluded so that both agencies can begin implementing the beneficial improvements contained in the update and move on to other important long-range planning needs. Although the CCC staff has not yet reviewed the few policy changes contained in this report, prior discussions have given them a clear understanding of the approach that would be taken, and the content of the resubmittal is generally consistent with these discussions.


The Planning and Building Department is confident that the policies and ordinances contained in the resubmittal are consistent with the Chapter 3 Policies of the Coastal Act, and will be seeking CCC staff’s concurrence during the period between the publication of this report and the November 9, 2010 Board of Supervisors meeting. In the event that CCC staff identifies the need for additional change, those changes can be identified and considered prior to the Board’s action. Submitting the amendments for CCC approval without modifications will provide a clear and specific conclusion to the extensive collaboration that has taken place to date.


Resubmittal of the Midcoast Update Local Coastal Program amendments to the California Coastal Commission for certification contributes to the 2025 Shared Vision outcome of a Livable Community by promoting a livable, healthy, and prosperous Midcoast community.


County Counsel has reviewed and approved the resolution and ordinances as to form and content.



CCC’s certification of the policy and ordinance changes contained in the resubmittal will commit portions of the Planning and Building Department’s constrained fiscal and staffing resources to developing Transportation and Groundwater Management Plans for the Midcoast. It will also commit Department resources to implementing the lot retirement requirement and transferring its administration to an appropriate third-party.

1 Regular Certificates of Compliance are issued for lots that were established in accordance with the rules in place at the time they were created. Conditional Certificates of Compliance are required for lots that were created in a manner that was not in conformance with the rules at that time.

2 As established by Table 2.17 of the LCP, Coastal Act Priority Uses consist of Marine-Related Industrial, Commercial Recreation, Public Recreation, Floriculture, and Essential Public Services.