Chapter 17.56
Shoreline Access
Sections:
17.56.030 Access Location Requirements
17.56.040 Access Design Standards
17.56.050 Protection of Historic Public Use
17.56.060 Access Title and Guarantee
17.56.070 Required Findings and Supporting Analysis for Public Access Dedications
17.56.080 Review of Recorded Access Documents
17.56.090 CDP Permitting and Application
17.56.010 - Purpose
This Section provides requirements for the dedication and improvement of public access to, and along the coast, in conjunction with proposed development and new land uses. The intent of this Section is to ensure that public rights of access to and along the coast are protected as guaranteed by the California Constitution. Coastal access standards are also established by this Section in compliance with the California Coastal Act.
17.56.020 - Definitions
A. Definitions of terms used in this Chapter:
1. Development. “Development” means, on land, in or under water, the placement or erection of a solid material or structure; discharge or disposal of any dredged material or of any gaseous, liquid, solid, or thermal waste; change in density or intensity of use of land, including but not limited to, subdivision pursuant to the Subdivision Map Act (commencing with Section 66410 of the Government Code), and any other division of land, including lot splits, except where the land division is brought about in connection with the purchase of such land by a public agency for public recreational use; change in the intensity of use of water; or access thereto; construction, reconstruction, demolition, or alteration of the size of any structure, including any facility of any private or public or municipal utility; and the removal or harvesting of major vegetation other than for agricultural purposes; kelp harvesting, and timber operations which are in accordance with a timber harvesting plan submitted pursuant to the provisions of the Z’berg-Nejedly Forest Practice Act of 1973 (commencing with Section 4511).
As used in this section structure includes, but is not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line.
2. New Development. For purposes of implementing the public access requirements of Public Resources Code Section 30212 and of this Section, “new development” includes “development” as defined above except for the following:
a. Structures destroyed by natural disaster: The replacement of any structure, other than a public works facility, destroyed by a disaster; provided that the replacement structure conforms to applicable existing zoning requirements, is for the same use as the destroyed structure, does not exceed either the floor area, height, or bulk of the destroyed structure by more than 10%, is sited in the same location on the affected property as the destroyed structure and does not extend the replacement structure seaward on a sandy beach or beach fronting bluff lot. As used in this section, “disaster” means any situation in which the force or forces which destroyed the structure to be replaced were beyond the control of the owners.
b. Demolition and reconstruction: The demolition and reconstruction of a single-family residence; provided that the reconstructed residence shall not exceed either the floor area, height or bulk of the former structure by more than 10 percent, that the reconstructed residence shall be sited in the same location on the affected property as the former structure, that the reconstructed residence does not block or impede public access, that the reconstructed residence does not extend seaward of the demolished residence on a sandy beach or beach fronting bluff lot and that the reconstructed residence does not include or necessitate a shoreline protective device.
c. Improvements: Improvements to any structure which do not change the intensity of its use, which do not increase either the floor area, height or bulk of the structure by more than 10 percent, which do not block or impede access, which do not result in a seaward encroachment by the structure and which do not include or necessitate a new or enlarged shoreline protective device.
d. Repair and maintenance: Repair or maintenance activity which, pursuant to Public Resources Code Section 30610(d) and California Code of Regulations Section 13252, requires no permit unless the activity will have an adverse impact on lateral public access along the beach.
e. Reconstruction and/or repair of a seawall, revetment, retaining wall or other shoreline protective device: The reconstruction or repair of any shoreline protective device; provided that the reconstructed or repaired shoreline protective device does not substantially alter the foundation of the protective device, does not result in the replacement of 20 percent or more of the materials of the existing structure with materials of a different kind, does not extend the protective device seaward of the location of the former structure. As used in this section, “reconstruction or repair” of a seawall shall not include replacement by a different type of structure or other modification in design or construction which results in different or greater impacts to public access or other shoreline resources than those of the existing structure.
3. Sea. “Sea” means the Pacific Ocean and all harbors, bays, channels, estuaries, salt marshes, sloughs, and other areas subject to tidal action through any connection with the Pacific Ocean, excluding non-estuarine rivers, streams, tributaries, creeks and flood control and drainage channels.
B. Types of Public Access.
1. Vertical access: Provides public access from the first public road, trail, or public use area nearest the sea to the publicly owned shoreline, tidelands, or established lateral access perpendicular to the shore.
2. Lateral access: Provides for public access and use along or parallel to the shoreline.
3. Blufftop access: Provides access and coastal viewing along blufftops that run parallel to the shoreline, and in some cases provide the only opportunity for public access along the shoreline above a rocky intertidal zone with no sandy beach.
4. Trail access: Provides public access (i.e. hiking and equestrian) along a coastal or mountain recreational path, including to and along canyons, rivers, streams, wetlands, lagoons, freshwater marshes, significant habitat and open space areas or similar resource areas, and which also may link inland trails or recreational facilities to the shoreline.
5. Recreational access: Provides public access to coastal recreational resources through means other than those listed above, including but not limited to, parking facilities, viewing platforms, and blufftop parks.
C. Character of Accessway Use.
1. Pass and repass refers to the right of the public to walk and run along an accessway. Because this use limitation can substantially restrict the public’s ability to enjoy adjacent publicly owned tidelands by restricting the potential use of lateral accessways, it will be applied only in connection with vertical access or other types of access where the findings required by Section 17.56.070 of this Development Code establish that the limitation is necessary to protect natural habitat values, topographic features (such as eroding bluffs), or privacy of the landowner.
2. Passive recreational use refers to those recreational activities typically associated with coastal open space that generally are non-structured and require minimal or no developed facilities or improvements to land. Such activities include, but are not limited to, walking, biking, jogging, hiking, dog walking, bird watching, tide-pooling, beach combing, informal sports activities such as Frisbee or ball throwing and kite-flying, nature viewing, and picnicking. Passive recreation includes ancillary facilities necessary to support visitor access to the coastal open space, including but not limited to parking lots, interpretive signage, visitor kiosks, restrooms, etc. Passive recreation activities do not include activities such as: playgrounds, community gardens, ball-fields, skate parks, etc.
3. Active recreational use refers to the right of the public to conduct the full range of beach-oriented activities, not including horseback riding and use of motorized vehicles unless specifically authorized.
17.56.030 - Access Location Requirements
Vertical, lateral, and/or blufftop access shall be required by the review authority in compliance with this Chapter, in the locations specified by the Open Space, Conservation, and Parks Element of the Coastal General Plan.
A. Access Required. As a condition of approval and prior to issuance of a permit or other authorization for any new development identified in 1 - 4 of this section, except as provided in Section 17.56.020 of this Development Code, a 25 foot wide easement for one or more of the types of access identified in Section 17.56.020(B) of this Development Code shall be required and shall be supported by findings required by Section 17.56.070 of this Development Code; provided that no such condition of approval shall be imposed if the analysis required by Section 17.56.070 of this Development Code establishes that the development will not adversely affect, either individually or cumulatively, the ability of the public to reach and use public tidelands and coastal resources or that the access dedication requirement will not alleviate the access burdens identified. For any project where such mitigation is required, the preferred implementation should be through a recorded grant of easement to the Executive Director of the Coastal Commission or to a designated private nonprofit association acceptable to the City who is willing to accept the easement and willing to operate and maintain the public accessway or trail. Where grants of easement are not feasible because neither the City nor private nonprofit association is willing to accept, maintain and operate the accessway, implementation of required access mitigation shall be implemented through a recorded Offer to Dedicate (OTD) an easement to a public agency or a designated private nonprofit association acceptable to the Executive Director of the Coastal Commission.
1. New Development on any parcel or location specifically identified in the Land Use Plan or in the LCP zoning districts as appropriate for or containing an historically used or suitable public access trail or pathway.
2. New development between the nearest public roadway and the sea.
3. New development on any site where there is substantial evidence of a public right of access to or along the sea or public tidelands, a blufftop trail or an inland trail acquired through use or a public right of access through legislative authorization.
4. New development on any site where a trail, bluff top access or other recreational access is necessary to mitigate impacts of the development on public access where there is no feasible, less environmentally damaging, project alternative that would avoid impacts to public access.
B. Protection of existing coastal access. Development shall not interfere with public rights of access to the sea where the rights were acquired through use or legislative authorization. Public access rights may include but are not limited to the use of dry sand and rocky beaches to the first line of terrestrial vegetation.
C. Exceptions to access requirements. Coastal access requirements may be waived by the review authority based upon specific findings that the provision of public access would be inappropriate because:
1. It would be inconsistent with public safety, military security needs, or the protection of fragile coastal resources;
2. Adequate access exists within 500 feet of the site;
3. Access at the site would be inconsistent with policies of the Coastal General Plan other than those requiring access; or
4. Requiring or providing the access would be inconsistent with Federal or State law;
5. Project is excepted from the definition of “new development” contained in Section 17.56.020.
17.56.040 - Access Design Standards
The standards of this Section are intended to provide guidance to the review authority in determining the appropriate design of accessways to be required by Coastal Development Permit conditions of approval, in compliance with this Chapter.
A. Design objectives. The following are general guidelines as to the size and nature of all public access facilities in the City.
1. Design and siting. Accessways and trails should be sited and designed:
a. To minimize alteration of natural landforms, conform to the existing contours of the land, and to subordinate to the character of their setting;
b. To prevent unwarranted hazards to the land and public safety;
c. To provide for the privacy of adjoining residences and to minimize conflicts with adjacent or nearby established uses; and
d. To prevent damage to sensitive coastal resource areas.
2. Correction of existing damage/alternative routes. Where appropriate, coastal accessways should be designed to correct damage resulting from past and existing use. Shoreline and blufftop trail segments that may not be passable at all times shall provide inland alternative routes.
3. Accessway specifications.
a. Width. Each public access easement offered for dedication for public use shall be a minimum of 25 feet wide. The area where public access is allowed within an easement may be reduced to the minimum necessary for pedestrian traffic to avoid:
i) Adverse impacts on sensitive environmental areas;
ii) Encroachment closer than 20 feet to an existing residence; and/or
iii) Hazardous topographic conditions.
b. Slope. The preferred slope gradient for the walking surface of an accessway is zero to 20 percent, and in no case should exceed 70 percent.
c. Overhead clearance. The minimum overheard clearance for an accessway shall be seven feet.
4. Access for disabled persons. Wherever possible, wheelchair access to the ocean should be provided. Ramps should have dimensions and gradients consistent with current ADA requirements. Where beach access for disabled persons is provided, one out of five parking spaces should be provided for disabled persons, with the spaces marked clearly for handicapped use only.
5. Residential privacy. The design and placement of access trails should provide for the privacy of adjacent residences. Accessways may be wide enough to allow the placement of a trail, fencing and a landscape buffer. A vertical accessway abutting a residential area may be fenced at the property line and have its use restricted to daylight hours.
6. Parking. Where access sites are required, parking should be provided where feasible. Where handicapped beach access is provided, one out of five parking spaces should be provided for disabled persons. These spaces should be marked clearly for handicapped use only.
7. Signs. Directional signing advising the public of vertical, lateral, and blufftop accessways and parking should be placed in prominent locations along access routes, at appropriate places in the downtown and at major visitor destinations. Signs designating handicapped access points and parking should be conspicuous. Potential hazards along accessways such as steep cliffs, steps or slopes should be signed, and fenced when necessary.
B. Standards for Application of Access Conditions.
The public access required pursuant to Section 17.56.030(A) of this Development Code shall conform to the standards and requirements set forth in Sections 17.56.040(A) through (C) of this Development Code.
1. Vertical access. A vertical accessway shall comply with the following standards, in addition to the other applicable requirements of this Section.
a. Minimum requirements. A condition to require vertical public access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 17.56.030(A) of this Development Code shall provide the public with the permanent right of access, (1) located in specific locations identified in the certified Local Coastal Program for future vertical access, or (2) located in a site for which the City has reviewed an application for a development permit and has determined a vertical accessway is required pursuant to the access and recreation policies of the Coastal Act or the applicable provisions of the Fort Bragg Local Coastal Program.
b. A condition to require vertical access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 17.56.030(A) of this Development Code shall provide the public with the permanent right of vertical access and be limited to the public right of passive recreational use unless another character of use is specified as a condition of the development. In determining whether another character of use is appropriate, findings shall be made on the specific factors identified in Section 17.56.070(B) of this Development Code.
c. Each vertical accessway shall extend from the public road to the shoreline (or bluff edge) and shall be legally described as required in Section 17.56.060(D) of this Development Code. The access easement shall be a minimum of 25-feet-wide wherever feasible. If a residential structure is proposed, the accessway should be sited along the border or side property line of the project site or away from existing or proposed development and should not be sited closer than 10 feet to the structure wherever feasible. Exceptions to siting a vertical accessway along a border or side property line or not closer than 10 feet to a structure may be required where topographical, physical or other constraints exist on the site.
2. Lateral access. A lateral accessway shall comply with the following standards, in addition to the other applicable requirements of this Section.
a. Minimum requirements. [Also to be used for blufftop access or trail access, as applicable.] A condition to require lateral access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 17.56.030(A) of this Development Code shall provide the public with the permanent right of lateral public access and passive recreational use along the shoreline (or public recreational area, bikeway, or blufftop area, as applicable); provided that in some cases controls on the time, place and manner of uses, such as limiting access to pass and repass or restricting hours of use, may be justified by site characteristics including sensitive habitat values or fragile topographic features or by the need to protect the privacy of residential development. Active recreational use may be appropriate in many cases where the development is determined to be especially burdensome on public access. Examples include cases where the burdens of the proposed project would severely impact public recreational use of the shoreline, where the proposed development is not one of the priority uses specified in Public Resources Code Section 30222, where active recreational uses reflect the historic public use of the site, where active recreational uses would be consistent with the use of the proposed project, and where such uses would not significantly interfere with the privacy of the landowner. In determining the appropriate character of public use, findings shall be made on the specific factors enumerated in Section 17.56.070(B) of this Development Code. Lateral access shall be legally described as required in Section 17.56.060(D).
3. Blufftop access.
a. Minimum requirements. A condition to require public access to or along a blufftop as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 17.56.030(A) of this Development Code shall provide the public with the permanent right of scenic and visual access from the bluff top to the public tidelands.
b. The blufftop access shall be limited to passive recreational use and coastal viewing purposes unless another character of use is specified as a condition of development. In determining the appropriate character of use findings shall be made on the specific factors identified in Section 17.56.070(B) of this Development Code.
c. Each blufftop accessway shall be described in the conditions of approval of the coastal development permit as an area beginning at the current bluff edge extending 25 feet inland or [greater or lesser] as determined to be necessary for public safety or geologic stability. However, wherever feasible, the accessway should not extend any closer than 10 feet from an occupied residential structure. Due to the potential for erosion of the bluff edge, the condition shall include a mechanism that will cause the accessway to be adjusted inland as the edge recedes. Any permanent improvements should be set back from the accessway by a distance derived by multiplying the annual rate of blufftop retreat by the 100-year life expectancy of the improvements plus an added geologic stability factor of 1.5.
d. The accessway shall be legally described as required in Section 17.56.060(D) of this Development Code, with the furthest inland extent of the area possible referenced as a distance from a fixed monument in the following manner:
“Such easement shall be a minimum of 25 feet wide located along the blufftop as measured inland from the daily bluff edge. As the daily bluff top edge may vary and move inland, the location of this right of way will change over time with the then current bluff edge.”
4. Trail Access.
a. Minimum requirements. A condition to require public access as a condition of approval of a coastal development permit (or other authorization to proceed with development) required pursuant to Section 17.56.030(A) of this Development Code shall provide the public with the permanent right of access and active recreational use, (1) along a designated alignment of a coastal recreational path or trail in specific locations identified in the LCP for implementation of trail access, or (2) in locations where it has been determined that a trail access is required to link recreational areas to the shoreline or provide alternative recreation and access opportunities pursuant to the access and recreation policies of the LCP and Coastal Act, consistent with other provisions of this chapter. In determining if another character of use is appropriate, findings shall be made on the specific factors enumerated in Section 17.56.070(B) of this Development Code. The trail access shall be legally described as required by Section 17.56.060(D) of this Development Code.
5. Recreational Access.
a. Minimum requirements. A condition to require public recreational access as a condition of approval of a coastal development permit (or some other authorization to proceed with development) required pursuant to Section 17.56.030(A) of this Development Code shall provide the public with the permanent right of access and use within a designated recreational access area. Conditions required pursuant to this section shall specify the location and extent of the public access area. The form and content should take the form of requirements in Section 17.56.040(B)(1)-(4) of this Development Code as applicable. The accessway shall be legally described as required in Section 17.56.060(D) of this Development Code.
17.56.050 - Protection of Historic Public Use
A. Substantial evidence determination. Substantial evidence that the area used by the public has been impliedly dedicated shall be determined based on evidence of all of the following:
1. The public must have used the land for a period of five years or more as if it were public land.
2. Without asking for or receiving permission from the owner.
3. With the actual or presumed knowledge of the owner.
4. Without significant objection or bona fide attempts by the owner to prevent or halt the use.
5. The use must be substantial, rather than minimal.
6. The applicant must not have demonstrated that the law has prevented the property from being impliedly dedicated.
B. Findings. Where an issue as to the existence of public prescriptive rights has been raised during the course of reviewing a coastal development permit application, one of the following findings shall be made:
1. Substantial evidence does not warrant the conclusion that public prescriptive rights exist.
2. There is substantial evidence of the existence of public prescriptive rights, but development will not interfere with those rights.
3. There is substantial evidence of the existence of public prescriptive rights which requires denial of a coastal development permit because of interference with those rights.
4. There is substantial evidence of the existence of public prescriptive rights, but a condition requiring dedication of public access protects the rights of the public and is equivalent in time, place and manner to any prescriptive rights which may exist.
5. There is substantial evidence of the existence of public prescriptive rights, but a condition requiring siting development away from the area used by the public protects the rights of the public.
C. Siting and Design Requirements.
1. Development shall be sited and designed in a manner that does not interfere with or diminish any public right of access which may exist based on the potential public rights based on substantial evidence of historic public use. Only when site constraints are so severe that siting of the accessway or recreational use area in its historic location would significantly impair the proposed development and alternative development siting is not feasible, development may be sited in the area of public right of access based on historic use provided that the applicant provides an equivalent area of public access or recreation to and along the same destination and including the same type and intensity of public use as previously existed on the site. Mechanisms for guaranteeing the continued public use of the area or equivalent area shall be required in accordance with Section 17.56.060 of this Development Code. Gates, guardhouses, barriers or other structures designed to regulate or restrict access shall not be permitted within private street easements where they have the potential to limit, deter, or prevent public access to the shoreline, inland trails, or parklands where there is substantial evidence that prescriptive rights exist.
2. An access condition shall not serve to extinguish, adjudicate or waive potential prescriptive rights. The following language shall be added to the access condition in a permit with possible prescriptive rights:
“Nothing in this condition shall be construed to constitute a waiver of any sort or a determination on any issue of prescriptive rights which may exist on the parcel itself or on the designated easement.”
17.56.060 - Access Title and Guarantee
Where public coastal accessways are required by this Chapter, approval of a Coastal Development Permit for new development shall require guarantee of the access through deed restriction, or dedication of right-of-way or easement. Before the approval of a Coastal Development Permit, the method and form of the access guarantee shall be approved by City Attorney, and shall be recorded in the office of the County Recorder, identifying the precise location and area to be set aside for public access. The method of access guarantee shall be chosen according to the following criteria:
A. Deed restriction. Shall be used only where an owner, association or corporation agrees to assume responsibility for maintenance of and liability for the public access area, subject to approval by the Director.
B. Grant of fee interest or easement. Shall be used when a public agency or private organization approved by the Director is willing to assume ownership, maintenance and liability for the access.
C. Offer of dedication. Shall be used when no public agency, private organization or individual is willing to accept fee interest or easement for accessway maintenance and liability. These offers shall not be accepted until maintenance responsibility and liability is established.
D. Legal Description of an Accessway. Recordation
1. An access dedication (offer to dedicate or grant of easement) required pursuant to Section 17.56.030(A) of this Development Code shall be described, in the condition of approval of the permit or other authorization for development in a manner that provides the public, the property owner, and the accepting agency with the maximum amount of certainty as to the location of the accessway. As part of the condition of approval, easements shall be described as follows:
a. for lateral access: along the entire width of the property from the mean high tide line landward to a point fixed at the most seaward extent of development (as applicable): the toe of the bluff, the intersection of sand with toe of revetment, the vertical face of seawall, or other appropriate boundary such as stringline or dripline. On beachfront property containing dune ESHA the required easement for lateral public access shall be located along the entire width of the property from the mean high tide line landward to the ambulatory seawardmost limit of dune vegetation;
b. for blufftop access or trail access: extending inland from the bluff edge or along the alignment of a recreational trail;
c. for vertical access: extending from the road to the mean high tide line (or bluff edge). A privacy buffer provided pursuant to Section 17.56.060(E) shall be described as applicable.
2. Prior to the issuance of the coastal development permit or other authorization for development, the landowner shall execute and record a document in a form and content acceptable to the Coastal Commission [or local agency authorized pursuant to 14 Cal. Code of Regulations Section 13574(b)], consistent with provisions of Section 17.56.030(A) of this Development Code, irrevocably offering to dedicate (or grant an easement) to a public agency or private nonprofit association approved by the Coastal Commission [or local agency authorized by the Commission pursuant to 14 Cal. Admin. Code Section 13574(b)] an easement for a specific type of access as described in Section 17.56.030(B) and a specific character of use as described in Section 17.56.020(C) of this Development Code, as applicable to the particular condition.
3. The recorded document shall provide that: (1) the terms and conditions of the permit do not authorize any interference with prescriptive rights in the area subject to the easement prior to acceptance of the offer and, (2) development or obstruction in the accessway prior to acceptance of the offer is prohibited.
4. The recorded document shall include legal descriptions and a map drawn to scale of both the applicant’s entire parcel and the easement area. The offer or grant shall be recorded free of prior liens and any other encumbrances which the Coastal Commission [or local agency authorized by the Commission pursuant to 14 Cal. Admin. Code Section 13574(b)] determines may affect the interest being conveyed. The grant of easement or offer to dedicate shall run with the land in favor of the People of the State of California, binding all successors and assignees, and the offer shall be irrevocable for a period of 21 years, such period running from the date of recording.
E. Privacy buffers.
1. Minimum requirements. Separation between a public accessway and adjacent residential use may be provided when necessary to protect the landowner’s privacy or security as well as the public’s right to use of the accessway. Any such buffer shall be provided within the development area. Access should not be sited closer to any residential structure than the distance specified in the certified LUP, or where there is no distance specified, no closer than 10 feet. The buffer can be reduced where separation is achieved through landscaping, fences or grade separation.
F. Implementation.
1. For any project where a public access easement is required, the preferred implementation should be through a recorded grant of easement to the City or to a designated private nonprofit association acceptable to the Executive Director of the Coastal Commission who is willing to accept the easement and willing to operate and maintain the public accessway or trail. Where grants of easement are not feasible because neither the City nor private nonprofit association is willing to accept, maintain and operate the accessway, implementation of required access mitigation shall be implemented through a recorded Offer to Dedicate (OTD) an easement to a public agency or a designated private nonprofit association acceptable to the Executive Director of the Coastal Commission.
2. For all grants of easement to the City, required as a condition of approval of a coastal development permit, the City shall open the easement to the public as soon as is feasible, and shall be responsible for operating and maintaining the accessway, or the City shall grant the easement to a private nonprofit association acceptable to the Executive Director of the Coastal Commission that is willing to accept, maintain and operate the accessway.
3. In the case of an Offer to Dedicate or where the City grants an easement to a private nonprofit association, an accessway shall not be required to be opened to public use until a public agency or private nonprofit association approved in accordance with Section 17.56.060(D) of this Development Code agrees to accept responsibility for maintenance and liability of the access, except in cases where immediate public access is implemented through a deed restriction. New offers to dedicate public beach or trail access easements shall include an interim deed restriction that 1) states that the terms and conditions of the permit do not authorize any interference with prescriptive rights, in the area subject to the easement prior to acceptance of the offer and, 2) prohibits any development or obstruction in the easement area prior to acceptance of the offer.
4. Access facilities constructed on access easements (e.g., walkways, paved paths, boardwalks, etc.) shall be as wide as necessary to accommodate the numbers and types of users that can reasonably be expected. Width of facilities can vary for ramps or paved walkways, depending on site factors.
5. Any government agency may accept an offer to dedicate or grant of an easement if the agency is willing to operate and maintain the easement. For all grants of an easement or offers to dedicate that are required as conditions of Coastal Development Permits approved by the City, the Executive Director of the Coastal Commission has the authority to approve a private non-profit association that seeks to accept the offer or the grant of easement. In order for the Executive Director to approve any private non-profit association, the non-profit association must submit a plan that indicates that the association will open, operate, and maintain the easement in accordance with terms of the recorded offer to dedicate or grant the easement.
6. The appropriate agency or organization to accept and develop trail dedication offers or grants of easement resulting from City issued CDPs shall be determined through coordination, where applicable, with the National Park Service, the State Department of Parks and Recreation, the State Coastal Conservancy, Mendocino County, and nonprofit land trusts or associations. Public agencies and private nonprofit associations which may be appropriate to accept offers to dedicate include, but shall not be limited to, the State Coastal Conservancy, the State Department of Parks and Recreation, the State Lands Commission, the County, the City, the Mendocino Land Trust, and other nongovernmental organizations.
7. Grants of public access easements or offers to dedicate shall be accepted for the express purpose of opening, operating, and maintaining the accessway for public use. Unless there are unusual circumstances, the accessway shall be opened within five (5) years of acceptance. If the accessway is not opened within this period, and if another public agency or qualified private nonprofit association expressly requests ownership of the easement in order to open it to the public, the easement holder shall transfer the easement to that entity within six (6) months of the written request. A Coastal Development Permit that includes a grant of easement or offer to dedicate for public access as a term or condition shall require the recorded offer to dedicate to include the requirement that the easement holder shall transfer the easement to another public agency or private nonprofit association that requests such transfer, if the easement holder has not opened the accessway to the public within five (5) years of accepting the offer.
8. Facilities to complement public access to and along the shoreline and trails shall be permitted where feasible and appropriate. This may include parking areas, restrooms, picnic tables, or other improvements. No facilities or amenities, including, but not limited to, those referenced above, shall be required as a prerequisite to the approval of any lateral or vertical accessway or trail OTD or grant of easement or as a precondition to the opening or construction of the accessway or trail. Where there is an existing, but unaccepted and/or unopened public access OTD, easement, or deed restriction for lateral, vertical, bluff or trail access or related support facilities, necessary access improvements shall be permitted to be constructed, opened and operated for the intended public use.
9. Any accessway which the managing agency or organization determines cannot be maintained or operated in a condition suitable for public use shall be offered to another public agency or qualified private nonprofit association that agrees to open and maintain the accessway in a condition suitable for public use.
10. All public access mitigation conditions or terms required by a CDP shall include, as a compliance component, a requirement that the permittee submit a detailed and surveyed map, drawn to scale, locating any proposed or required easements or deed restricted areas.
G. Timing of access implementation. The type and extent of access to be dedicated, and/or constructed and maintained, as well as the method by which its continuing availability for public use is to be guaranteed, shall be established at the time of land use permit approval, as provided by this Section.
1. Dedication: Shall occur before issuance of construction permits or the start of any construction activity not requiring a permit.
2. Construction of improvements: Shall occur at the same time as construction of the approved development, unless another time is established through conditions of land use permit approval.
3. Interference with public use prohibited. Following an offer to dedicate public access in compliance with this Section; the property owner shall not interfere with use by the public of the areas subject to the offer before and after acceptance by the responsible entity.
H. Title Information. As a requirement for any public access condition, prior to the issuance of the permit or other authorization for development, the applicant shall be required to furnish a title report and all necessary subordination agreements. All offers or grants shall be made free of all encumbrances which the approving authority pursuant to Section 17.56.060(D) of this Development Code determines may affect the interest being conveyed. If any such interest exists which could extinguish the access easement, it must be subordinated through a written and recorded agreement.
17.56.070 - Required Findings and Supporting Analysis for Public Access Dedications
A. Required Overall Findings. Written findings of fact, analysis and conclusions addressing public access must be included in support of all approvals, denials or conditional approvals of projects between the first public road and the sea. Written findings of fact, analysis and conclusions addressing public access must be included in support of all approvals or conditional approvals of where an access dedication is included in the project proposal or required as a condition of approval. Such findings shall address the applicable factors identified by Section 17.56.070(B) of this Development Code and shall reflect the specific level of detail specified, as applicable. Findings supporting all such decisions shall include:
1. A statement of the individual and cumulative burdens imposed on public access and recreation opportunities based on applicable factors identified pursuant to Section 17.56.070(B) of this Development Code. The type of affected public access and recreation opportunities shall be clearly described.
2. An analysis based on applicable factors identified in Section 17.56.070(B) of this Development Code of the necessity for requiring public access conditions to find the project consistent with the public access provisions of the Coastal Act.
3. A description of the legitimate governmental interest furthered by any access condition required.
4. An explanation of how imposition of an access dedication requirement alleviates the access burdens identified and is reasonably related to those burdens in both nature and extent.
B. Required Project-Specific Findings. In determining any requirement for public access, including the type of access and character of use, the City shall evaluate and document in written findings the factors identified in subsections (1) through (5), to the extent applicable. The findings shall explain the basis for the conclusions and decisions of the City and shall be supported by substantial evidence in the record. If an access dedication is required as a condition of approval, the findings shall explain how the dedication will alleviate or mitigate the adverse effects which have been identified and is reasonably related to those adverse effects in both nature and extent. As used in this section, “cumulative effect” means the effect of the individual project in combination with the effects of past projects, other current projects, and probable future projects, including development allowed under applicable planning and zoning requirements or regulations.
1. Project effects on demand for access and recreation including:
a. Identification of existing and open public access and coastal recreation areas and facilities in the regional and local vicinity of the development;
b. Analysis of the project’s effects upon existing public access and recreation opportunities;
c. Analysis of the project’s cumulative effects upon the use and capacity of the identified access and recreation opportunities, including public tidelands and beach resources, and upon the capacity of major coastal roads from subdivision, intensification or cumulative buildout;
d. Projection of the anticipated demand and need for increased coastal access and recreation opportunities for the public;
e. Analysis of the contribution of the project’s cumulative effects to any such projected increase;
f. Description of the physical characteristics of the site and its proximity to the sea, tideland viewing points, upland recreation areas, and trail linkages to tidelands or recreation areas;
g. Analysis of the importance and potential of the site, because of its location or other characteristics, for creating, preserving or enhancing public access to tidelands or public recreation opportunities.
2. Shoreline processes including:
a. Description of the existing shoreline conditions, including beach profile, accessibility and usability of the beach, history of erosion or accretion, character and sources of sand, wave and sand movement, presence of existing or proposed shoreline protective structures, location of the line of mean high tide during the season when the beach is at its narrowest (generally during the late winter) and the proximity of that line to existing structures, and any other factors which substantially characterize or affect the shoreline processes at the site;
b. Identification of anticipated changes to shoreline processes and beach profile unrelated to the proposed development;
c. Description and analysis of any reasonably likely changes, attributable to the primary and cumulative effects of the project, to: wave and sand movement affecting beaches in the vicinity of the project; the profile of the beach; the character, extent, accessibility and usability of the beach; and any other factors which characterize or affect beaches in the vicinity;
d. Analysis of the effect of any identified changes of the project -- alone or in combination with other anticipated changes -will have upon the ability of the public to use public tidelands and shoreline recreation areas.
3. Historic public use including:
a. Evidence of use of the site by members of the general public for a continuous five-year period (such use may be seasonal);
b. Evidence of the type and character of use made by the public (vertical, lateral, blufftop, etc. and for passive and/or active recreational use, etc. Identification of any agency (or person) who has maintained
c. and/or improved the area subject to historic public use and the nature of the maintenance performed and improvements made;
d. Identification of the record owner of the area historically used by the public and any attempts by the owner to prohibit public use of the area, including the success or failure of those attempts;
e. Description of the potential for adverse impact on public use of the area from the proposed development (including but not limited to, creation of physical or psychological impediments to public use).
4. Physical obstructions including:
a. Description of any physical aspects of the development which block or impede the ability of the public to get to or along the tidelands, public recreation areas, or other public coastal resources or to see the shoreline.
5. Other adverse impacts on access and recreation including:
a. Description of the development’s physical proximity and relationship to the shoreline and any public recreation area;
b. Analysis of the extent to which buildings, walls, signs, streets or other aspects of the development, individually or cumulatively, are likely to diminish the public’s use of tidelands or lands committed to public recreation;
c. Description of any alteration of the aesthetic, visual or recreational value of public use areas, and of any diminution of the quality or amount of recreational use of public lands which may be attributable to the individual or cumulative effects of the development.
C. Required Findings for Public Access Exceptions. Any determination that one of the exceptions of Section 17.56.030(C) of this Development Code applies to a development shall be supported by written findings of fact, analysis and conclusions which address all of the following:
1. The type of access potentially applicable to the site involved (vertical, lateral, blufftop, etc.) and its location in relation to the fragile coastal resource to be protected, the agricultural use, the public safety concern, or the military facility which is the basis for the exception, as applicable.
2. Unavailability of any mitigating measures to manage the type, character, intensity, hours, season or location of such use so that agricultural resources, fragile coastal resources, public safety, or military security, as applicable, are protected.
3. Ability of the public, through another reasonable means, to reach the same area of public tidelands as would be made accessible by an accessway on the subject land.
17.56.080 - Review of Recorded Access Documents
A. Standards and Procedures.
Upon final approval of a coastal development permit or other authorization for development, and where issuance of the permit or authorization is conditioned upon the applicant recording a legal document which restricts the use of real property or which offers to dedicate or grant an interest or easement in land for public use, a copy of the permit conditions, findings of approval and drafts of any legal documents proposed to implement the conditions shall be forwarded to the California Coastal Commission for review and approval prior to the issuance of the permit consistent with the following procedures and California Code of Regulations Section 13574:
All coastal development permits subject to conditions of approval pertaining to public access and open space or conservation easements shall be subject to the following procedures:
1. The Executive Director of the Coastal Commission shall review and approve all legal documents specified in the conditions of approval of a coastal development permit for public access and conservation/open space easements.
a. Upon completion of permit review by the City and prior to the issuance of the permit, the City shall forward a copy of the permit conditions and findings of approval and copies of the legal documents to the Executive Director of the Commission for review and approval of the legal adequacy and consistency with the requirements of potential accepting agencies;
b. The Executive Director of the Commission shall have fifteen (15) working days from receipt of the documents in which to complete the review and notify the applicant of recommended revisions if any;
c. The City may issue the permit upon expiration of the fifteen (15) working day period if notification of inadequacy has not been received by the City within that time period;
d. If the Executive Director has recommended revisions to the applicant, the permit shall not be issued until the deficiencies have been resolved to the satisfaction of the executive director; or
2. If the City requests, the Commission shall delegate the authority to process the recordation of the necessary legal documents to the City if the City identifies the City department that has the resources and authorization to accept, open and operate and maintain the accessways and open space/conservation areas required as a condition of approval of coastal development permits subject to the following: Upon completion of the recordation of the documents the City shall forward a copy of the permit conditions and findings of approval and copies of the legal documents pertaining to the public access and open space conditions to the Executive Director of the Commission.
17.56.090 - CDP Permitting and Application
In addition to permit and application submittal requirements established elsewhere in this LCP, new development pursuant to Section 17.56.020(A)(2) of this Development Code shall be subject to the following additional permit and/or application requirements:
A. In order to maximize public access and recreation opportunities at existing public beaches or parks, limitations on time of use or increases in use fees or parking fees, which affect the intensity of use, shall be subject to a Coastal Development Permit.
B. The City shall not close, abandon, or render unusable by the public any existing accessway which the City owns, operates, maintains, or is otherwise responsible for without first obtaining a Coastal Development Permit unless determined to be necessary for public safety.
C. Any limitation on existing public access to or along a beach, trail, or bluff located in a sensitive habitat area determined to be necessary for temporary protection of habitat, restoration, repair and/or maintenance shall be for the minimum period necessary but shall not exceed the nesting season for shorebird habitat or be greater than 90 days for habitat restoration or 30 days for repair and maintenance, and shall require a Coastal Development Permit. Any limitation for purposes of protecting or restoring habitat shall be subject to review and approval, where required, from the Department of Fish & Game and U.S. Fish and Wildlife. Access to or along public tidelands or areas subject to an accepted and opened Offer to Dedicate or grant of easement shall not be fully restricted.
D. No signs shall be posted on a beachfront or on public beach unless authorized by a Coastal Development Permit. Signs which purport to identify the boundary between State tidelands and private property or which indicate that public access to State tidelands or public lateral or vertical access easement areas is restricted shall not be permitted. Temporary signs posted by a public agency for environmental or public safety purposes may be authorized by the emergency permit provisions of Section 17.71.080 of this Development Code.
E. Improvements and/or opening of accessways already in public ownership or that are accepted pursuant to an offer to dedicate required by a Coastal Development Permit shall be permitted regardless of the distance from the nearest available vertical accessway.
F. All applications for new development located along the shoreline or fronting a beach shall include the submittal of a review and/or determination in writing from the State Lands Commission that addresses the proposed project relative to its location or proximity to, or impact upon, the boundary between public tidelands and private property. Any application for development on or along the shoreline filed without such determination shall be determined to be incomplete for filing.
G. Coastal Development Permit application filing requirements shall include the submittal of mapped documentation identifying the location of any existing recorded shoreline or inland trail OTDs, deed restrictions, or easements on the subject parcel(s).