A Tale of Two Projects: Lessons Learned From Recent Commission Approvals. Presented by: John P. Erskine, Esq. and John J. Flynn III, Esq.

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1 A Tale of Two Projects: Lessons Learned From Recent Commission Approvals Presented by: John P. Erskine, Esq. and John J. Flynn III, Esq.

2 Introduction to panel concept Practice before the California Coastal Commission involves continued focus on recurring issues Coastal access Project consistency with LCP/LUP and/or Coastal Act Resources issues (ESHA, Marine Resources, Land Resources) Location of and type of development (coastal-dependent and coastal-related) View Protection However, on specific projects, coastal permit applicants have one overarching question: What do I have to do to get my Coastal Development Permit? 2

3 Well-funded environmental groups focus year-in and yearout on coastal protection; such a group may see denial as the optimum end result of your client s CDP application.... High profile, controversial projects (Bolsa Chica, desalination facilities, etc.) will have a grueling entitlement gauntlet! 3

4 Property Owner/Applicants prefer these 4

5 Tale No. 1 Boca del Canon (Alvarez) Project in the La Ladera Community in San Clemente, CA.: Staff Report recommending denial issued in November 2006; Commission hearing and unanimous approval in November 2007; Post-approval Condition Compliance (Jan May 2009); numerous real estate title issues, etc. Coastal Development Permit issued in June

6 Boca del Canon Project Located just south of San Clemente Pier in private, gated La Ladera Community on ocean bluff. 6

7 Boca del Canon Site Map 7

8 Boca del Canon Issues: Public access to beach sought by Commission across adjoining lot for which no CDP application filed; Alleged public prescriptive easement across clients lot; Impact on visual resources identified by Coastal Commission staff 8

9 General Land Use Entitlement Strategic Approach (Applies with some variation to most development approvals before Coastal Commission) Public Resources Code section et seq and 14 California Code of Regulations section et seq.; Applicable case law must be reviewed, including pending cases on appeal; Certified or partially certified Local Coastal Program ( LCP ) Land Use Plan and Implementation Plan or Land Use Plan only; Negotiations/Compromise: Timing and extent of; Address opposition issues & identify/mobilize support Ex parte communications and use of coastal lobbyists and other project advocates to address project history, staff issues and establish compliance with LCP and Coastal Act 9

10 Coastal Act (Public Resources Code) Provisions Governing Public Access to the Shoreline and Coast: In carrying out the requirement of Section 4 of Article X of the California Constitution maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, right of private property owners, and natural resource areas from overuse Development shall not interfere with the public s right of access to the sea where acquired through use or legislative authorization, including, but not limited to, the use of dry sand and rocky coastal beaches to the first line of terrestrial vegetation Public access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects except where: (1) it is inconsistent with public safety, military security needs, or the protection of fragile coastal resources, (2) adequate access exists nearby, or, (3) agriculture would be adversely affected. Dedicated accessway shall not be required to be opened to public use until a public agency or private association agrees to accept responsibility for maintenance and liability of the accessway. 10

11 City of San Clemente Land Use Plan Section 3.3B (Coastal Access Policies), Policy IX. 15, states, in part: New developments lying between the first public roadway and the shoreline shall provide both physical and visual access to the coastline. a. Any new development proposed by the private communities listed below shall be required to provide an irrevocable offer of dedication of an easement to allow public vertical access to the mean high tide line... The access easement shall measure at least 10 feet wide. Development permits will require public vertical access for new development at the following private communities:...la Ladera (La Boca del Canon). 11

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13 Lessons Learned: Get the Facts Straight At Outset of Engagement: Address accuracy of facts/evidence that Commission staff and/or members of the public are submitting for the Record Asserted public prescriptive rights not may be just that an assertion by staff or project opponents Factual evidence may be weak or facts may support an alternative finding Prescriptive right requiring judicial determination (See LT-WR v. Coastal Comm.) Who is presenting such evidence and what s the motivation (e.g., preservation of private views, establishment of private park)? 13

14 Lessons Learned: Get the Law Straight Apply statutes, regulations and, in particular, relevant case law What s the applicable case law? Prepare and transmit to the Commission a letter clearly summarizing applicant s legal and factual position relative to Coastal Commission staff position. The Commission needs a legal basis to agree with the applicant, grounded in the policies set forth in the Coastal Act and LCP Nossaman letter on alleged public prescriptive rights submitted early in process on Lot #2 Boca del Canon LT-WR, LLC v. California Coastal Commission (2007) 152 Cal.App.4 th decided just prior to hearing The Commission is not vested with the authority to adjudicate the existence of prescriptive rights for public use of privately owned property

15 Lessons Learned: Reality Check Address issue and encourage applicant to negotiate rather than litigate way to a solution; However, willingness to negotiate and address a key issue does not mean Commisson is entitled to a patently ridiculous Condition of Approval Commission staff proposal would have resulted in infeasible house designs with no real net improvement in coastal access... Commission processing delays Consider appeal of Incomplete Application Determination to full Commission pursuant to 14 CCR 13056(d) 15

16 Irrevocable Offer of Dedication of sidewalk easement to beach access Accessway to public viewpoint Public viewpoint Result Complicated but workable combination of access and view opportunities: Beach access across adjoining Lot 11 Non-Applicants enter into recorded Memorandum of Understanding ( MOU ) applied to all lots in 7 lot enclave 16

17 Lesson no one needs to learn... An oceanfront home in the Coastal Zone is worth fighting for

18 Tale No. 2 Pacific City in Huntington Beach DTSP portion of City s Certified Local Coastal Program Area re appealability Dispute resolution Bixby v. Coastal Commission CDP s issued in 2008 Both resolved in favor of Applicant 18

Pacific City Appeal Dispute Resolution Pacific City is a 31-acre mixed use development on Pacific Coast Highway in the Downtown Specific Plan Area of the City of Huntington Beach Coastal Zone.

19 Pacific City Appeal Dispute Resolution Pacific City is a 31-acre mixed use development on Pacific Coast Highway in the Downtown Specific Plan Area of the City of Huntington Beach Coastal Zone. The City Council approved administrative permits, including a CUP, Tentative Tract Map and CDP for the project in June 2004 Council made finding that the project conformed to development standards contained in the 2001 certified LCP for the project area (District 7 and 8a) 19

20 The City, with concurrence of the Commission staff and City Attorney, had stated in all public notices that the project was located outside the Commission s appeal jurisdiction ; Allegations raised by local activists and the Mayer Corporation (adjacent hotel operators) relative to alleged wetlands on the property, led to staff determination that CDP approvals were appealable to the Coastal Commission and a dispute resolution hearing on the City s determination was scheduled before the Commission on July 16, 2004; 20

21 Coastal Act Section provides the basis for appeal of locally issued CDPs... Section (a) After certification of its local coastal program, an action taken by a local government on a coastal development permit application may be appealed to the commission for only the following types of developments: (1) Developments approved by the local government between the sea and the first public road paralleling the sea or within 300 feet of the inland extent of any beach or of the mean high tide line of the sea where there is no beach, whichever is the greater distance. (2) Developments approved by the local government not included within paragraph (1) that are located on tidelands, submerged lands, public trust lands, within 100 feet of any wetland, estuary, or stream, within 300 feet of the top of the seaward face of any coastal bluff. (3) Developments approved by the local government not included within paragraph (1) or (2) that are located in a sensitive coastal resource area. (4) Any development approved by a coastal county that... (5) Any development which constitutes a major public works project or a major energy facility. 21

22 (2004) Coastal Zone Status: (excerpted from June 2004 City Staff Report) Non-appealable jurisdiction of the coastal zone. The City s post-lcp Certification Commission Jurisdiction Map adopted May 24, 1985 indicated that the project site is not appealable to the Coastal Commission and Coastal Commission staff confirmed this in July 2003 based upon their written communication with Coastal Commission Mapping Division. 22

23 Lessons Learned Unlike Boca del Canon, the Pacific City project was within a fully certified LCP area determined by the City in consultation with the Commission to be nonappealable. All three types of arguments were ultimately necessary Procedural: 23

24 (1) The appeal was untimely under CCR (also set forth in the City s certified LCP); 2) Even if the Commission asserted jurisdiction, potential appellant issues had been resolved in the certified LCP. Widening of PCH on the inland side of the road could not reasonably be argued to constitute a development between the sea and the first public road paralleling the sea The PCH widening was calculated to be less than $100,000, why that was important vis a vis Section 30603(a)(5). 24

25 If the Commission may be split on the issue (and it was in this case), it is important to remember Marshall McLuhan s famous quote: The medium is the message. 25

26 This should not be thought of as an analysis PowerPoint vs. letters or vs. Twitter, but a review of the best person to present the key argument; Ex parte communication may be less powerful than a presentation by the right project advocate (the right medium ) at the hearing; Why you probably need both (ex parte and presentations by 3 rd parties at the hearing); The two-issue rule for Commissioner communications. 26

27 Lawyers, Lobbyists, Local Agency Staff or Elected Officials Former Coastal Commissioners Current Ex Parte Rules and Regulations Coastal Commission Culture 27

28 Questions and Answers John P. Erskine Nossaman LLP John J. Flynn III Nossaman LLP 28

The Critical Paths to Coastal Development

The Critical Paths to Coastal Development Presented by: John P. Erskine Nossaman Guthner Knox & Elliott LLP 18101 Von Karman Ave., Suite 1800 Irvine, CA 92612 Direct Phone: (949) 477-7633 E-mail: jerskine@nossaman.com