Planning Issues In Depth

Update on CCC vs. Santa Barbara County the New Coastal Act Interpretations

Opinion

by Jay Higgins, AICP, and Eva Turenchalk, AICP

The Open Space reported in April of this year that the California Coastal Commission Staff was attempting to expand its regulatory authority in Santa Barbara County under the guise of a Local Coastal Plan Update initiated by the County.  What the County and its residents thought would be a reformatting exercise that took its antiquated codes (collapsing the geographic ‘Articles’) into a more user friendly County-wide Land Use & Development Code) turned sour when, after 2 years after being submitted to the Coastal Commission, Coastal staff responded with a slew of their own changes to the text.

The below changes were initially presented to County staff in December of 2009 and heard by the County Board of Supervisors the following April.  The decision on whether to accept Coastal Staff’s changes was continued to July 13 and further continued to July 27.  At this time however, it appears as though the County Board of Supervisors is going to entertain a number of Coastal Staff’s amendments.  However, the public comment on this matter has been extensive and come from both ends of the development spectrum.   A review of public comment on the matter though suggests that most find these changes to be unacceptable, even from the environmental community.  Some of the public comment is summarized deeper in this article.

Limiting allowable uses in each zone district to one.  All others would either be disallowed or allowable with the approval of the Coastal Commission.   For example, churches, parks, schools and day care would be prohibited in agricultural zones.  As is typical in many pyramid type zoning ordinances, other less intensive uses or mixed uses, would be controlled by the Coastal Commission.

• Private stairways to the beach would become non-conforming and could not ever be repaired.

• Residences in agricultural zones require a CDP with a hearing if over 3000 SF (and the property would be required to be in ‘active’ farming status).

• Agricultural operations could not be ‘intensified’ without an appealable CDP.  There currently is no definitive definition of what qualifies as ‘intensification.’

• Subdivisions, lot-line adjustments and voluntary mergers of properties would all require CPD’s with public hearings.

• ‘Coastal Hazards Analysis’ for projects in the near shore to mitigate for sea level rise.

• Require a CDP with a public hearing on beneficial restoration habitat restoration projects.

• Require a CDP with a public hearing to sell any locally grown produce from the residentially zoned (including 5-acre rural-ranchette) properties.

A Decision to Make

Should the County decline Coastal Staff’s amendments to the LUDC, the County’s coastal regulations would fall back under Article II, the outdated and administratively difficult code.  However, this may be more preferable than to accept the changes by Coastal Staff.

Disallowing land uses in agricultural zones may increase transportation impacts to those few left non-conforming uses (i.e. busing children greater distances to schools).  Disallowing maintenance of private stairways to the beach will diminish emergency access, and would also exacerbate the use and construction of illegal access, and eventually burden public access ways/areas with increased traffic and parking (perhaps making it more difficult for the general public to utilize the beach).  Limiting land uses to a single use per zone district may have detrimental effects on affordable housing through bonus density allowances, particularly in Isla Vista, where many consider the housing conditions to be substandard, if not unaffordable and under supplied.  The limitation on allowable uses also has potential ‘takings’ issues, as outlined by several land use attorneys, and the elimination of churches poses obvious conflicts with RILUPA.

Should the Board of Supervisors decline to cede land use controls to the Coastal Commission and live with Article II, several planning recent efforts will be scuttled, although they would simply need to be resubmitted to Coastal Staff in compliance with Article II provisions, rather than under the recently adopted LUDC.  This may be the superior way to proceed, according to Supervisor Farr (Third District – discussed below).

We Are Not Alone

As a result of this intrusion into local government regulations, other ‘horror’ stories from various local agencies have bubbled to the surface as they have recently attempted to deal with Coastal Staff on their own LCP amendments.

• In San Luis Obispo County, Coastal Staff have declared that Certificates of Compliance constitute ‘development.’

• In a Santa Cruz County municipality, Coastal Staff is proposing a ‘lot retirement program’ where approvals for development are conditioned on an equal amount of open space being retired of development rights.  Applicants who do not own enough property for this program are being advised to purchase property off-site.

• In Santa Barbara County, a development project was appealed with the signature of a Coastal Commissioner without that Commissioner’s knowledge.  This is apparently common practice.

• In an Orange County municipality, Coastal Staff is declaring that the restriping of a parking lot, goats clearing brush in a hire fire zone, and curfews for sleeping on the beach constitute development.

• ESHA determinations are being routinely and arbitrarily made when farmers apply for a CDP and staff determines that the use is an ‘intensification.’  Such applications are routinely denied because of the Coastal Dependent Use clause.

• A northern California farmer was required to start farming his property before Coastal Staff would approve a residential structure on his property.

• Coastal Staff is now arguing that their actions are statutorily exempt from CEQA, since they are ‘implementing’ another state statute.

• A northern California city that applied to convert a hospital to a youth hostel was told by Coastal Staff their approval would be contingent on an update to that city’s zoning ordinance, coastal polices and resource maps.

Actions and stories like this have prompted the formation of the Coastal Cities Issues Group through the League of Cities.  More information on this working group can be obtained through Mary Creasey at (916) 658-8243.

Public Display of Un-Affection

It has become apparent that Coastal Staff, either due to budgetary reason or ambivalence, have carried this conversation on in front of a mirror.

First, there was silence for two years after the County’s submittal of the LUDC reformatting project, and then, there was but a blip on the radar as to why Coastal Staff went decided it was time to “reinterpret the Coastal Act.”  No workshops, no public notices and certainly no mailed notices to affected property owners.  Coastal Staff is apparently keen to have the County public hearing process count as public input.  And if that’s what counts, the community dialogue has been more about government agency leverage and infighting than substantive environmental protection or regional planning.

In a letter by the California Farm Bureau to the Coastal Commission dated August 9 of last year, the author, John Weech, summarizes Coastal Staff’s legislative requirements for a more open public process:

“Section 30500(c) of the Coastal Act expressly states that ‘[t]he precise content of each local coastal program shall be determined by the local government.’ Of course, consultation with and approval by your Commission are required. But the Commission’s role is strictly limited to ensuring that an LCP is consistent with the Coastal Act. Section 30512.2(a) of the Act clearly states: ‘[T]he commission is not authorized by any provision of this division to diminish or abridge the authority of a local government to adopt and establish, by ordinance, the precise content of its land use plan.’

He continues, “…the reasoning behind the language in the statute is clear. Local elected officials understand far better than the Coastal Commission or its staff the needs of its own constituents – and, more importantly, their rights. Local elected officials, with the input of its constituents, are charged with making those policy choices that best suit the needs of their communities, while at the same time respecting the fundamental rights of their landowning constituents. However, in an effort to formulate a Local Coastal Program, local agencies rely heavily on the input from the Coastal Commission even when that input may not be entirely helpful. For example, Marin County, with a rich and significant agriculture industry, has been encouraged by Coastal Commission staff to adopt policies from the recently updated Malibu Local Coastal Program. This is problematic for several reasons, least of all because commercial agriculture within the City of Malibu is practically nonexistent. Each California County is unique and not often amenable to a “one-size-fits-all” approach to coastal zone planning. Please consider reducing this practice in the future.”

Effect on Farming and Ranching

In a more recent letter to the County by the Santa Barbara County Cattlemen’s Association, the author and President, Paul McEnroe describe the potential affect on farmers:

“This proposal deprives retired family ranchers from continuing to live on the ranch after they cease to be the operators and places a 3,000-square foot cap on home size, regardless of its lack of visibility from public viewing areas or the size of the ranch. It also requires us to record on our land title an agreement that we must vacate our residence if we aren’t in complete compliance with the ordinance specifications (Page 84). If we want to deviate from these requirements in any way, it requires that we apply for a permit that is appealable all the way to the Coastal Commission.

This proposal not only controls the number, type and manner that we keep animals, but it eliminates the existing exemption from permitting for animal keeping in an ESH overlay area of the Coastal Zone (Page 84). Our members keep a wide range of animals who roam across vast acreage, including ESH areas, and they confine them for short and long time periods as necessary to meet the needs of their operations. They cannot be prohibited from these uses or required to apply for permits to run their livestock simply because the animals could enter an ESH, nor can they be prohibited from confining animals in a manner not expressly exempted by an ordinance drafted by people who know nothing about agriculture.”

He continues to describe the requirement of a CDP for intensification of agricultural operations as a ‘death knell’ for ranchers:

“… ranching operations, which generally include some element of farming, would not survive if they were not free to change their type of agricultural operation to survive. New and expanded agriculture is essential to survival of the operation. If market demand ceases for one commodity, our members must nimbly switch to another commodity. Intensification of agriculture is the sole reason that agriculture continues to exist in coastal California. Old farming and ranching techniques and crops have been replaced by new practices and new and innovative crops. Nonetheless, under Modification #9 (Page 94), new or expanded areas of agricultural activities are not exempt and require a Coastal Development Permit.  Furthermore, any exempted agricultural structure or activity must be part of an on-going agricultural operation so if a rancher starts operating on land that previously hasn’t been in active agriculture, even if that land has agricultural zoning and land use designation, an otherwise exempt structure or activity isn’t exempt.”

The opposition to changes to agricultural permitting also comes from the environmental camp.  In a letter form the Gaviota Coast Conservancy, and the Law Offices of Mark Chytillo, staff attorney Ana Citrin attests to the following:

“Changes the CCC recommends include … new or expanded areas of agricultural activities are not exempt and require the issuance of a Coastal Development Permit”. (CCC Staff Report, p. 94). The effect of this recommended change would be that any cultivated agriculture, orchard, or vineyard outside the existing footprint of cultivated agriculture, orchard or vineyard, would require the landowner to secure a CDP.  Additionally, any grazing outside the existing footprint, or increase in “intensity of use” would require a CDP (see CCC Staff Report, p. 95). GCC believes that this suggested modification will stifle agriculture including sustainable agriculture, which should be encouraged on the Gaviota Coast and elsewhere in the County.”

Now What?

During the July 13 public hearing before the Board of Supervisors, Supervisor Farr (Third District) appeared willing to compromise, but also indicated that that the time for these negotiations needs to be in the context of future community plan approvals by the Coastal Commission.  She also indicated a level of discomfort with unintended uses on the Agricultural community as related to the issue of principally permitted uses; she was not in favor of CPD’s for ‘intensifications’ of ag uses and was in favor of ‘grandfathering private stairways so that they could be maintained;’ she appeared hopeful that Coastal Staff would bend on the acceptable definitions of accessory uses, and an increase to 5000 square-feet on single family homes (in ag zones).

Supervisor Wolf (Second District) on the other hand appeared frustrated with public accusations that she had not ‘listened’ to her constituent’s concerns and also indicated a willingness to ‘move forward’ to the Coastal Commission with a collaborative approach and that the County should not ‘fight’ Coastal Staff.

Supervisor Carbajal (First District) was overall interested in a request to take more time with staff and the public to understand and work with Coastal staff through workshops and was interested in creating some continuity between the uses provided for under Williamson Act contracts and principally permitted uses.

County planning staff appropriately offered little hope that Coastal Staff would continue to negotiate and at one point described further discussions with staff as ‘past the point of diminishing returns.’

The item was left to be continued with Supervisor Farr making a motion to reopen public comment and to give staff the time to consider the Supervisors’ comments and to generate a letter that would go to the Coastal Commission in preparation of the pending Coastal Commission hearing in mid-August, and to designate two Supervisors who would travel to the hearing and provide testimony as to the County’s areas of compromise.

The Open Space will continue to follow this issue especially as it relates to how Coastal Staff is emboldened by Santa Barbara County’s complicity or the County’s interest in preserving local control over coastal land use decisions.

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This entry was posted on Wednesday, July 21st, 2010 at 11:51 pm and is filed under: Economics, Openspace, People.