By William W. Abbott Malibu Bay Company ("MDC") owns the last undeveloped beach front parcel in Malibu, a 2.08 acre, 200 foot wide parcel. In order to accommodate its proposed division into four parcels, MDC proposed an amendment to the Local Implementation Plan of Malibu's local coastal plan in order to create a new zoning district which would allow for lot widths of 45', a decrease from the then existing standard of 80'. As the application advanced to the City Council, staff ultimately recommended that the required width for all parcels in same district as MDC's property was located in, be reduced to the 45' standard. Altogether, this would impact 733 parcels, although as staff noted, a majority of the existing parcels were already substandard to the 80 width standard. Staff further determined that only 5 parcels (including MDC's) were capable of further division under the proposed 45' lot width standard. Two of the five were subject to additional legal limitations precluding further re-division, leaving only two parcels in addition to MDCs. Staff concluded that with respect to the two with potential for re-division, that any further re-division would require a coastal development permit and CEQA review. Concluding that there would be negligible direct and cumulative effects on aesthetics, biological resources and land use and planning, staff recommended acceptance of a negative declaration. Due to the presence of a dune environmentally sensitive area, and based further upon a dune study submitted by the applicant's biologist, mitigation for dune species was required. The City Council eventually approved a revised mitigated declaration, and conditionally granted the approvals, subject to Coastal Commission approval. Neighbors opposed the approval of the entitlements, and submitted a biologist study indicating potential impacts to sensitive species. Further review at the Commission resulted in conflicting recommendations from applicant, city and commission staff biologists as to the desired setback from the sensitive area. Commission staff eventually recommended a less aggressive setback then that proposed by its own consultant, based in part on a restoration requirement. The Commission staff also recommended a change to the view corridors as well. Neighbors continued to oppose the project at the Commission level. Immediately prior to the Commission hearing, Commission staff issued an addendum staff report, and recommended a further change to the LCP plan amendment. The Commission approved the amendment, the matter was remanded to the Town of Malibu who adopted concurring revisions, and Commission staff ultimately certified compliance with the Commission's approvals, and the approvals took effect. The neighbors filed suit. The trial court granted partial relief. On appeal, the appellate court reversed, ruling in favor of the Town and the Coastal Commission. In the published portion of the decision, the appellate court addressed a number of procedural and substantive issues. The first substantive issue dealt with the setback for the dunes, an environmentally sensitive area. The Town's general plan specified a 100' setback, whereas the local implementation plan of the local coastal plan allowed for a reduced setback. As there were reports in the record from the applicant's and Town biologists on this subject, the court found substantial evidence in the record to support the Commission's imposition of a 5' setback. As to the application of these two different standards, the court held that the Commission's interpretation was entitled to deference. The court then addressed the CEQA claims, in the context of a certified equivalent CEQA process as authorized by CEQA and the Coastal Act. The first matter for consideration was whether or not CEQA's review period for EIRs (30 days; Public Resources Code section 21091) applied, or in the alternative, the 13 day review period utilized by the Commission was sufficient. The appellate court held that the Commission's certified regulatory program was exempt on the basis that the Secretary of the Resources Agency had certified the Coastal Commission's regulations which included the shorter (seven day) time period. It was too late to challenge the validity of the shorter review periods under the Coastal Act. The Commission also successfully argued to the appellate court that under CEQA procedures, it acted as a responsible agency, and therefore the many requirements and steps necessary for preparation of the appropriate CEQA document did not apply. The appellate court also upheld the sufficiency to the responses to the general public comments by the Commission. The opponents also challenged the trial court decision regarding the underlying analysis to the cumulative impact analysis, which analysis concluded that only two other lots were capable of additional division. In the face of the argument that owners of other lots may in the future combine them and seek re-division, the court, as had the court in Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, concluded that the agency was not required to speculate as to what might happen in the future and in any event, such development would be subject to regulation under the local coastal plan. The final CEQA issue pertained to the trial court decision requiring that CEQA required a concurrent examination of the two existing lots which were capable of further division. Reversing, the appellate court observed "It is unreasonable to require the commission, city or developer to conduct a biological assessment on developed property they do not own and for which there is no reason to expect will be subdivided. Should these two developed lots be subdivided in the future, their owners will need to obtain a coastal development permit…" Deane Earl Ross v. California Coastal Commission (September 9, 2011, B225796) ___Cal.App.4th ___. William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.
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