Chapter 17.44
COASTAL OVERLAY ZONE
Sections:
17.44.020 Local coastal program components.
17.44.040 Relationship to base zoning districts.
17.44.060 Development standards.
17.44.090 De minimis waiver of CDP.
17.44.100 Challenges to city determination of a CDP.
17.44.110 Application submittal.
17.44.120 Public notice and hearings.
17.44.130 Findings for approval.
17.44.140 Notice of final action.
17.44.010 Purpose.
A. The purpose of this chapter is to establish review and permit procedures for the implementation of Capitola’s local coastal program (LCP). This chapter ensures that all private and public development within the city’s coastal zone (as depicted by the -CZ overlay zone) is consistent with the city’s certified LCP land use plan and implementation program, which together constitute the city’s certified LCP including:
1. To achieve the basic state goals of maximizing public access to the coast and public recreational opportunities, as set forth in the California Coastal Act and codified in Sections 30000 through 30900 of the California Public Resources Code. Section 30001.5(c) states that public access both to and along the shoreline shall be maximized consistent with sound resource conservation principles and constitutionally protected rights of private property owners; and
2. To implement the public access and recreational policies of Chapter 3 of the Coastal Act (Sections 30210 through 30224).
B. In achieving these purposes, this chapter shall be consistent with the goals, objectives and policies of the California Coastal Act and Article X, Section 4, of the California Constitution. This chapter shall be interpreted and applied in a manner that:
1. Protects, maintains, and, where feasible, enhances and restores the overall quality of the coastal zone environment and its natural and artificial resources;
2. Allows the city to adopt and enforce additional regulations, not in conflict with the Coastal Act or otherwise limited by state law, imposing further conditions, restrictions, or limitations with respect to any land or water use or other activity which might adversely affect the resources of the coastal zone; and
3. Resolves conflicting provisions in a manner which balances the utilization and conservation of coastal zone resources, taking into account the social and economic needs of the people of Capitola and the state. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.020 Local coastal program components.
The city of Capitola LCP consists of the land use plan (LUP) and implementation plan (IP) as described below.
A. Land Use Plan. The LCP land use plan (LUP) generally consists of descriptive text and policies as well as the adopted land use, resource, constraint, and shoreline access maps, graphics, and charts. The city’s LUP (originally certified in June 1981) is divided into six components as follows:
1. Locating and planning new or intensified development and public works facilities component.
2. Public access component.
3. Visual resources and special communities component.
4. Recreation and visitor serving facilities component.
5. Natural systems component.
6. Natural hazards component.
B. Implementation Plan. The implementation plan (IP) (first certified in January 1990), consists of the zoning code (Title 17) chapters and municipal code chapters as identified in Section 17.04.040 (Relationship to the local coastal program) as well as the zoning districts and maps. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.030 Definitions.
See also Chapter 17.160, Glossary. Specialized terms as used in this chapter are defined as follows:
A. “Aggrieved person” means any person who, in person or through a representative, appeared at a city public hearing in connection with the decision or action on a coastal development permit (CDP) that is appealed, or who, by other appropriate means prior to a hearing informed the city of the nature of their concerns, or who for good cause was unable to do either. “Aggrieved person” includes the applicant for a CDP.
B. Coastal Bluff.
1. A landform that includes a scarp or steep face of rock adjacent to the bay or ocean and meeting one of the following two parameters:
a. The toe is now or was historically (generally within the last two hundred years) subject to marine erosion.
b. The toe of which lies within an area otherwise identified in Public Resources Code Section 30603(a)(1) or (a)(2).
2. “Bluff line or edge” is defined as the upper termination of a bluff, cliff, or sea cliff. In cases where the top edge of the cliff is rounded away from the face of the cliff as a result of erosional processes related to the presence of the steep cliff face, the bluff line or edge is defined as that point nearest the cliff beyond which the downward gradient of the surface increases more or less continuously until it reaches the general gradient of the cliff. In a case where there is a step-like feature at the top of the cliff face, the landward edge of the topmost riser is taken to be the cliff edge. The termini of the bluff line, or edge along the seaward face of the bluff, is defined as a point reached by bisecting the angle formed by a line coinciding with the general trend of the bluff line along the seaward face of the bluff, and a line coinciding with the general trend of the bluff line along the inland facing portion of the bluff. Five hundred feet is the minimum length of bluff line or edge to be used in making these determinations.
C. “Coastal-dependent development or use” means any development or use which requires a site on, or adjacent to, the sea to be able to function at all.
D. “Coastal-related development” means any use that is dependent on a coastal-dependent development or use.
E. “Coastal emergency” means a sudden, unexpected occurrence demanding immediate action to prevent or mitigate loss or damage to life, health, property, or essential public services.
F. “Coastal hazards” include, but are not limited to, episodic and long-term shoreline retreat and coastal erosion, high seas, ocean waves, storms, tsunami, tidal scour, coastal flooding, liquefaction, sea level rise, and the interaction of same.
G. “Coastal resources” include, but are not limited to, public access and public access facilities and opportunities, recreation areas and recreational facilities and opportunities (including for recreational water-oriented activities), public views, natural landforms, marine resources, watercourses (e.g., rivers, streams, creeks, etc.) and their related corridors, water bodies (e.g., wetlands, estuaries, lakes, etc.) and their related uplands, ground water resources, biological resources, environmentally sensitive habitat areas, agricultural lands, and archaeological and paleontological resources.
H. “Development” means any of the following, whether on land or in or under water:
1. The placement or erection of any solid material or structure.
2. Discharge or disposal of any dredged material or of any gaseous, liquid, solid or thermal waste.
3. Grading, removing, dredging, mining or extraction of any materials.
4. Change in the density or intensity of use of land, including, but not limited to, subdivisions, 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.
5. Change in the intensity of use of water, or access thereto.
6. Construction, reconstruction, demolition or alteration in the size of any structure, including any facility of any private, public or municipal utility.
7. 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.
I. “Energy facility” means any public or private processing, producing, generating, storing, transmitting, or receiving facility for electricity, natural gas, petroleum, coal, or other source of energy. A “major energy facility” means any of the previously listed facilities that costs more than two hundred eighty-three thousand five hundred two dollars as of 2019 with an automatic annual increase in accordance with the Engineering News-Record Construction Cost Index except for those governed by the provisions of Public Resources Code Section 30610, 30610.5, 30611, or 30624.
J. “Environmentally sensitive habitat areas (ESHA)” means any areas in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments. ESHA includes wetlands, coastal streams and riparian vegetation, and terrestrial ESHA, including habitats of plant and animal species listed under the federal or California Endangered Species Act. In addition, the following areas are categorically ESHA as identified in Capitola’s LCP:
1. Soquel Creek, Lagoon, and Riparian Corridor.
2. Noble Gulch Riparian Corridor.
3. Tannery Gulch Riparian Corridor.
4. Monarch Butterfly Habitat – Rispin-Soquel Creek and Escalona Gulch.
K. “Feasible” means that which is capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.
L. “Local coastal program (LCP)” means the city’s land use plan and implementation plan (including land use and zoning maps) certified by the Coastal Commission as meeting the requirements of the California Coastal Act of 1976.
M. Public Works Facility.
1. Any of the following:
a. All production, storage, transmission, and recovery facilities for water, sewerage, telephone, and other similar utilities owned or operated by any public agency or by any utility subject to the jurisdiction of the Public Utilities Commission, except for energy facilities.
b. All public transportation facilities, including streets, roads, highways, public parking lots and structures, ports, harbors, airports, railroads, and mass transit facilities and stations, bridges, trolley wires, and other related facilities.
c. All publicly financed recreational facilities, all projects of the State Coastal Conservancy, and any development by a special district.
d. All community college facilities.
2. A “major public works facility” means any of the above listed facilities that costs more than two hundred eighty-three thousand five hundred two dollars as of 2019, with an automatic annual increase in accordance with the Engineering News-Record Construction Cost Index except for those governed by the provisions of Public Resources Code Section 30610, 30610.5, 30611, or 30624. Notwithstanding the above criteria, a “major public works facility” also means publicly financed recreational facilities that serve, affect, or otherwise impact regional or statewide use of the coast by increasing or decreasing public recreational opportunities or facilities.
N. “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 nonestuarine rivers, streams, tributaries, creeks, and flood control and drainage channels.
O. “Shoreline protective device” means any structure (including but not limited to a seawall, revetment, riprap, bulkhead, deep piers/caissons, bluff retaining walls, groins, swales, lagoons, etc.) designed as protection against coastal hazards or resulting in impacts to shoreline processes.
P. “Stream” means streams in the coastal zone, perennial or intermittent, which are mapped by the United States Geological Survey (USGS) in the National Hydrographic Dataset.
Q. “Structure” means any improvement permanently attached to the ground, including, but not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line.
R. “Wetland” means lands within the coastal zone which may be covered periodically or permanently with shallow water and include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, and fens. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.040 Relationship to base zoning districts.
The -CZ overlay zone applies to property in conjunction with the base zoning districts. In case of a conflict between regulations, the regulations in this chapter shall take precedence over those of the base zoning district. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.050 Allowed land uses.
Allowed land uses in the -CZ overlay zone are the same as in the underlying base zoning district. Permits required for these uses (e.g., conditional use permit, administrative permit) are the same as in the underlying base zoning district, and are required in addition to any required CDP. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.060 Development standards.
Development standards (e.g., structure height, setbacks) that apply to property in the -CZ overlay zone are the same as in the underlying base zoning district. These standards are maximums (or minimums as applicable) and are not an entitlement or guaranteed allowance. Where the zoning code allows for discretion in the application of development standards, the decision-making body may impose more stringent requirements to the extent permitted by state law to protect and enhance coastal resources. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.070 CDP requirements.
A. Permit Required. Notwithstanding any other exemptions for other permits or authorizations, all activities that constitute development, as defined in Section 17.44.030(H), within the -CZ overlay zone require a CDP except as specified in Section 17.44.080 (CDP exemptions).
B. Review Authority.
1. The community development director shall take action on all CDP applications for projects that are not appealable to the Coastal Commission and do not require other discretionary approval by the planning commission or city council.
2. The community development director shall, in a properly noticed public hearing, take action on all CDP applications for projects that are appealable to the Coastal Commission and do not require other discretionary approval by the planning commission or city council.
3. The planning commission shall, in a properly noticed public hearing, take action on all CDP applications that are appealable and/or require other discretionary approval by the city.
4. The planning commission or the city council shall, in a properly noticed public hearing, take action on CDP applications for public works projects that require no other discretionary permit approvals from the city other than funding approval.
5. Development already authorized by a Coastal Commission-issued CDP, amendment, or waiver remains under the jurisdiction of the Coastal Commission for the purposes of condition compliance, amendment, and revocation. Any additional development proposed on a parcel with a Coastal Commission-issued CDP, amendment, or waiver shall be reviewed by the city as a new CDP application; provided, that:
a. The Coastal Commission determines that the development is not contrary to any terms or conditions of the Commission-issued CDP, amendment, or waiver; or
b. The development is not located within a location where the Coastal Commission is required to retain jurisdiction under the Coastal Act.
C. Additional Permits. The review of a CDP application shall be processed concurrently with any other discretionary permit application required by the city. The city may not grant any other discretionary approvals for a proposed project that conflict with this chapter. Other discretionary approvals become effective only after a CDP is approved and becomes effective as required by this chapter.
D. Legal Development and Permitting Processes. Development that was legally established prior to the effective date of Proposition 20 (i.e., February 1, 1973) for property within one thousand yards of the mean high tide or the Coastal Act of 1976 (i.e., January 1, 1977) for all coastal zone property, whichever is applicable, is considered lawfully established development that does not require a CDP in order to continue as it legally existed prior to those dates. Any additional development since those dates (including improvements, repair, modification, and/or additions) requires a CDP or a determination that such development is excluded from CDP requirements in accordance with the provisions of this chapter.
E. Illegal Development and Permitting Processes.
1. See Section 17.44.180 (CDP violations) for enforcement provisions that apply to development activity that violates a CDP or the LCP.
2. Development that was not legally established (i.e., with a CDP) after the effective date of Proposition 20 (i.e., February 1, 1973) for property within one thousand yards of the mean high tide, or the Coastal Act of 1976 (i.e., January 1, 1977) for all coastal zone property, whichever is applicable, constitutes “unpermitted development” for purposes of this chapter. In addition, development undertaken inconsistent with the terms and conditions of an approved CDP (or an approved waiver or amendment) is also not lawfully established or authorized development (i.e., it constitutes unpermitted development). Both categories of unpermitted development may be subject to enforcement action by the city of Capitola and/or the Coastal Commission.
3. If development is proposed on a site with unpermitted development, then such application may only be approved if it resolves all permitting and coastal resource issues associated with the unpermitted development, including through removal of all or part of the unpermitted development or retention of such development if it can be found consistent with the policies and standards of the LCP and the public access and recreation policies of the Coastal Act, if applicable. If the unpermitted development cannot be found consistent, the unpermitted development must be abated and any affected areas restored to the condition before the unpermitted development was undertaken or pursuant to the terms of a valid restoration order. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.080 CDP exemptions.
The following projects are exempt from the requirement to obtain a CDP unless any one of the criteria listed in subsections (A)(1) through (6), (B)(1) through (8), (C)(1) through (3), or (F)(1) through (4) of this section are met, in which case a CDP is required.
A. Improvements to Existing Single-Family Residences. In accordance with Public Resources Code Section 30610(a) and 14 CCR Section 13250, where there is an existing single-family residential structure, the following shall be considered as part of that structure: fixtures and structures directly attached to a residence; landscaping; and structures normally associated with a single-family residence, such as garages, swimming pools, fences and storage sheds, but not including guest houses or self-contained residential units. This exemption also applies to replacement of a mobile home with one which is not more than ten percent larger in floor area, or equipping a mobile home with removable fixtures such as a porch, the total area of which does not exceed ten percent of the square footage of the mobile home itself. Improvements to existing single-family residences do not require a CDP except for the following classes of development, which require a CDP because they involve a risk of adverse environmental effects:
1. Improvements to a single-family residence if the residence and/or improvement is located on a beach, in a wetland, seaward of the mean high tide line, within an environmentally sensitive habitat area, in an area designated highly scenic in the LCP, or within fifty feet of the edge of a coastal bluff.
2. Any significant alteration of land forms including removal or placement of vegetation on a beach, wetland, or sand dune, within fifty feet of the edge of a coastal bluff, or within an environmentally sensitive habitat area.
3. The expansion or construction of water wells or septic systems.
4. On property not included in subsection (A)(1) of this section that is located between the sea and the first public road paralleling the sea, or within three hundred feet of the inland extent of any beach or of the mean high tide of the sea where there is no beach, whichever is the greater distance, or in significant scenic resources areas as designated within the land use plan, when one of the following circumstances apply:
a. Improvement that would result in an increase of ten percent or more of internal floor area of an existing structure.
b. An additional improvement of ten percent or less where an improvement to the structure has previously been undertaken pursuant to this section.
c. An increase in height by more than ten percent of an existing structure and/or any significant non-attached structure such as garages, shoreline protective works, or docks.
5. In areas which the Coastal Commission has previously declared by resolution, after public hearing, as having a critically short water supply that must be maintained for the protection of coastal resources or public recreational use, the construction of any specified major water-using development not essential to residential use including, but not limited to, swimming pools or the construction or extension of landscape irrigation systems.
6. Any improvement to a single-family residence where the CDP issued for the original structure by the Coastal Commission or city indicated that any future improvements would require a CDP.
B. Improvements to Other Existing Structures. In accordance with Public Resources Code Section 30610(b) and 14 CCR Section 13253, where there is an existing structure, other than a single-family residence or public works facility, the following shall be considered part of the structure: all fixtures and other structures directly attached to the structure; landscaping on the lot. Improvements to other existing structures do not require a CDP except for the following classes of development, which require a CDP because they involve a risk of adverse environmental effect, adversely affect public access, or involve a change in use:
1. Improvements to a structure if the structure and/or improvement is located on a beach, in a wetland or stream, seaward of the mean high tide line, in an area designated highly scenic in the land use plan, or within fifty feet of the edge of a coastal bluff.
2. Any significant alteration of land forms including removal or placement of vegetation on a beach or sand dune, in a wetland or stream, within one hundred feet of the edge of a coastal bluff, in a highly scenic area, or in an environmentally sensitive habitat area.
3. The expansion or construction of water wells or septic systems.
4. On property not included in subsection (B)(1) of this section that is located between the sea and the first public road paralleling the sea or within three hundred feet of the inland extent of any beach or of the mean high tide of the sea where there is no beach, whichever is the greater distance, or in significant scenic resources areas as designated in the land use plan, when one of the following circumstances apply:
a. Improvement that would result in an increase of ten percent or more of internal floor area of an existing structure;
b. An additional improvement of ten percent or less where an improvement to the structure has previously been undertaken pursuant to this section; or
c. An increase in height of an existing structure of more than ten percent.
5. In areas which the Coastal Commission has previously declared by resolution, after public hearing, as having a critically short water supply that must be maintained for the protection of coastal recreation or public recreational use, the construction of any specified major water-using development including, but not limited to, swimming pools or the construction or extension of any landscape irrigation system.
6. Any improvement to a structure where the CDP issued for the original structure by the Coastal Commission or city indicated that any future improvements would require a CDP.
7. Any improvement to a structure which changes the intensity of use of the structure.
8. Any improvement made pursuant to a conversion of an existing structure from a multiple-unit rental use or visitor serving commercial use to a use involving a fee ownership or long-term leasehold including, but not limited to, a condominium conversion, stock cooperative conversion, or motel/hotel timesharing conversion.
C. Repair and Maintenance Activities.
1. Repair and maintenance of existing public roads, including resurfacing and other comparable development necessary to maintain the existing public road facility as it was constructed; provided, that:
a. There is no excavation or disposal of fill outside the existing roadway prism; and
b. There is no addition to and no enlargement or expansion of the existing public road.
2. Routine maintenance of existing public parks, including repair or modification of existing public facilities and landscaping where the level or type of public use or the size of structures will not be altered.
3. Repair, maintenance, replacement, and minor alterations of existing public water, sewer, natural gas, electrical, telephone, television, and flood control infrastructure.
4. No CDP shall be required for repair and maintenance activities that do not result in an addition to, or enlargement or expansion of, the object of those repair or maintenance activities, except that (in accordance with Public Resources Code Section 30610(d) and 14 CCR Section 13252) the following extraordinary methods of repair or maintenance shall require a CDP because they involve a risk of substantial adverse environmental impact:
a. Any method of repair or maintenance of a seawall revetment, bluff retaining wall, breakwater, groin, culvert, outfall, or similar shoreline work that involves:
i. Repair or maintenance involving substantial alteration of the foundation of the protective work including pilings and other surface or subsurface structures;
ii. The placement, whether temporary or permanent, of riprap, artificial berms of sand or other beach materials, or any other forms of solid materials, on a beach or in coastal waters, streams, wetlands, estuaries and lakes or on a shoreline protective work except for agricultural dikes within enclosed bays or estuaries;
iii. The replacement of twenty percent or more of the materials of an existing structure with materials of a different kind; or
iv. The presence, whether temporary or permanent, of mechanized construction equipment or construction materials on any sand area, bluff, or environmentally sensitive habitat area, or within twenty feet of coastal waters or streams.
b. Any repair or maintenance to facilities or structures or work located in an environmentally sensitive habitat area, any sand area, within fifty feet of the edge of a coastal bluff or environmentally sensitive habitat area, or within twenty feet of coastal waters or streams that include:
i. The placement or removal, whether temporary or permanent, of riprap, rocks, sand, or other beach materials or any other forms of solid materials; or
ii. The presence, whether temporary or permanent, of mechanized equipment or construction materials.
c. Unless destroyed by natural disaster, the replacement of fifty percent or more of a single-family residence, seawall, revetment, bluff retaining wall, breakwater, groin or any other structure is not repair and maintenance under Public Resources Code Section 30610(d) but instead constitutes a replacement structure requiring a CDP.
d. The provisions of this section shall not be applicable to those activities specifically described in the document entitled “Repair, Maintenance and Utility Hookups,” adopted by the Coastal Commission on September 5, 1978, unless the community development director determines that a proposed activity will have a risk of substantial adverse impact on public access, an environmentally sensitive habitat area, wetlands, or public views to the ocean.
D. Replacement of Destroyed Structures. No CDP shall be required for the replacement of any structure, other than a public works facility, destroyed by a disaster that meets the following criteria: The replacement structure shall conform to applicable existing zoning requirements, shall be for the same use as the destroyed structure, shall not exceed either the floor area, height, or bulk of the destroyed structure by more than ten percent, and shall be sited in the same location on the affected property as the destroyed structure. 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 its owner; “bulk” means total interior cubic volume as measured from the exterior surface of the structure.
E. Conversion of Existing Multi-Unit Residential Structures. No CDP shall be required for the conversion of any existing multi-unit residential structure to a time-share project, estate, or use, as defined in Section 11212 of the Business and Professions Code. If any improvement to an existing structure is otherwise exempt from the permit requirements of this chapter, no CDP is required for that improvement on the basis that it is to be made in connection with any conversion exempt pursuant to this subsection. The division of a multi-unit residential structure into condominiums, as defined in Section 783 of the Civil Code, is considered a time-share project, estate, or use for purposes of this subsection.
F. Temporary Events. No CDP shall be required for temporary events as described in this subsection and which meet all of the following criteria:
1. The event will not occur between the Saturday of Memorial Day weekend through Labor Day, or if proposed in this period will be of less than two days in duration including setup and take-down.
2. The event will not occupy any portion of a publicly or privately owned sandy beach or park area, public pier, public beach parking area and there is no potential for adverse effect on sensitive coastal resources.
3. A fee will not be charged for general public admission and/or seating where no fee is currently charged for use of the same area (not including booth or entry fees); or if a fee is charged, it is for preferred seating only and more than seventy-five percent of the provided seating capacity is available free of charge for general public use.
4. The proposed event has been reviewed in advance by the city and it has been determined that it meets the following criteria:
a. The event will result in no adverse impact on opportunities for public use of or access to the area due to the proposed location and/or timing of the event either individually or cumulatively considered together with other development or temporary events scheduled before or after the particular event;
b. There will be no direct or indirect impacts from the event and its associated activities or access requirements on environmentally sensitive habitat areas, rare or endangered species, significant scenic resources, or other coastal resources; and
c. The event has not previously required a CDP to address and monitor associated impacts to coastal resources.
G. Emergency Work. See Section 17.44.170 (Emergency CDPs) for development allowed with an emergency CDP. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.090 De minimis waiver of CDP.
The community development director may waive the requirement for a CDP through a de minimis CDP waiver in compliance with this section upon a written determination that the development meets all of the criteria and procedural requirements set forth in subsections A through G of this section:
A. No Adverse Coastal Resource Impacts. The development has no potential for adverse effects, either individually or cumulatively, on coastal resources.
B. LCP Consistency. The development is consistent with the LCP.
C. Not Appealable to Coastal Commission. The development is not of a type or in a location where an action on the development would be appealable to the Coastal Commission.
D. Notice. Public notice of the proposed de minimis CDP waiver and opportunities for public comment shall be provided as required by Section 17.44.120 (Public notice and hearings), including provision of notice to the Coastal Commission.
E. Executive Director Determination. The community development director shall provide a notice of determination to issue a de minimis CDP waiver to the Executive Director of the Coastal Commission no later than ten working days prior to the waiver being reported at a city public hearing (see subsection F of this section). If the Executive Director notifies the community development director that a waiver should not be issued, the applicant shall be required to obtain a CDP if the applicant wishes to proceed with the development.
F. Review and Concurrence.
1. The community development director’s determination to issue a de minimis CDP waiver shall be subject to review and concurrence by the decision-makers (i.e., planning commission or city council, as applicable).
2. The community development director shall not issue a de minimis CDP waiver until the public comment period, including at a minimum through and including the required reporting of the waiver at a public hearing, has expired. At such public hearing, the public shall have the opportunity to testify and otherwise participate in a hearing on the de minimis CDP waiver. If two or more decision-makers object to the waiver, the de minimis CDP waiver shall not be issued and, instead, an application for a CDP shall be required and processed in accordance with the provisions of this chapter. Otherwise, the de minimis CDP waiver shall be deemed approved, effective, and issued the day of the public hearing.
3. In addition to the noticing requirements above, within seven calendar days of effective date of a de minimis CDP waiver, the community development director shall send a notice of final action (via first class mail) describing the issuance and effectiveness of the de minimis CDP waiver to the Coastal Commission and any persons who specifically requested notice of such action.
G. Waiver Expiration. A de minimis waiver shall expire and be of no further force and effect if the authorized development is not completed within two years of the effective date of the waiver. In this event, either a new de minimis waiver or a regular CDP shall be required for the development. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.100 Challenges to city determination of a CDP.
A. City Determination.
1. The determination of whether a development is exempt, nonappealable, or appealable to the Coastal Commission shall be made by the community development director at the time the CDP application is submitted or as soon thereafter as possible, and in all cases prior to the application being deemed complete for processing.
2. This determination shall be made with reference to the LCP, including any maps, land use designations, and zoning ordinances which are adopted as part of the LCP.
B. Notification of Decision.
1. The community development director shall inform the applicant and the Coastal Commission district office in writing of the determination prior to:
a. Providing notice of any potential permit action; or
b. Allowing any activity without a permit for exemptions or exclusions.
2. The community development director’s written notification shall also identify the city’s notice and hearing requirements for the proposed project, if any.
C. Coastal Commission Review.
1. If the Coastal Commission Executive Director chooses to review the community development director’s determination, the city shall provide the Executive Director with a copy of the application and determination of permit requirement.
2. If the Executive Director’s determination of permit requirement is the same as the community development director’s determination, that determination shall become final and no further challenge is available.
3. If the Executive Director’s determination conflicts with the community development director’s determination and the conflict cannot be resolved in a reasonable time, the Coastal Commission will hold a hearing to resolve the dispute in accordance with Coastal Commission regulations. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.110 Application submittal.
A. Submittal Requirements. CDP application submittals shall include all the information and materials required by the community development department. It is the responsibility of the applicant to provide all necessary and requested evidence to allow for the reviewing authority to make a decision regarding whether the proposed development is consistent with the LCP, including with respect to the findings required by Section 17.44.130 (Findings for approval).
B. Concurrent with Other Permits. The application for a CDP shall be made concurrently with application for any other non-CDP permits or approvals required by the city. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.120 Public notice and hearings.
A. Public Hearing Required. All planning commission and city council actions on CDP applications require a noticed public hearing.
B. Content of Notice. The notice of public hearing may be combined with other required project permit notice and shall include the following information:
1. A statement that the project is within the coastal zone, and that the project decision will include a determination on a CDP.
2. The name of the applicant, the city’s file number assigned to the application, a general explanation of the matter to be considered, a general description of the location of the subject property, and any recommendation from a prior hearing body.
3. A determination of whether the project is appealable to the Coastal Commission and the reasons for this determination.
4. The date, time and place of the hearing and/or decision on the application, and the phone number, email address, and street address of the community development department where an interested person may call or visit to obtain additional information or to provide input on the project.
5. A statement that the proposed project is determined to be exempt from the California Environmental Quality Act (CEQA), or that a negative declaration, mitigated negative declaration, or environmental impact report has been prepared for the project. The hearing notice shall state that the hearing body will consider approval of the CEQA determination or document prepared for the proposed project.
C. Posting. A printed notice shall be posted at the project site at least ten calendar days prior to the hearing.
D. Mailing. Notice shall be mailed at least ten calendar days prior to the hearing to:
1. The owner(s) and owner’s agent of all properties for which development is proposed, the applicant, and any applicant representatives;
2. Each local agency expected to provide essential facilities or services to the project;
3. Any person who has filed a request for notice (e.g., for the site or for the particular development) with the community development director;
4. All owners and all occupants of parcels of real property located within one hundred feet (not including roads) of the perimeter of the real property on which the development is proposed, but at a minimum all owners and all occupants of real property adjacent to the property on which the development is proposed;
5. All agencies for which an approval for the proposed development may be required (e.g., USFWS, CDFW, RWQCB, etc.), including the State Lands Commission and the Monterey Bay National Marine Sanctuary when an application for a CDP is submitted to the city on property that is potentially subject to the public trust;
6. All known interested parties that have submitted a request in writing to the community development director to receive notice on a specific property;
7. The California Coastal Commission Central Coast office;
8. Any other person whose property, in the judgment of the community development department, might be affected by the proposed project.
E. Alternative to Mailing. If the number of property owners to whom notice would be mailed in compliance with subsection D of this section is more than one thousand, the community development department may choose to provide notice by placing a display advertisement of at least one-eighth page in one or more local newspapers of general circulation at least ten days prior to the hearing.
F. Newspaper Publication. Notice shall be published in at least one newspaper of general circulation at least ten calendar days before the hearing.
G. Additional Notice.
1. In addition to the types of notice required above, the community development department may provide additional notice as determined necessary or desirable.
2. Whenever a hearing is held regarding a permit for a drive-through facility, or modification of an existing drive-through facility permit, notice procedures shall incorporate the blind, aged, and disabled communities in order to facilitate their participation.
H. Failure to Receive Notice. The validity of the hearing shall not be affected by the failure of any resident, property owner, or community member to receive a mailed notice.
I. Renoticing Required. If a decision on a CDP is continued by the review authority to a date or time not specific, the item shall be renoticed in the same manner and within the same time limits established by this section. If a decision on a CDP is continued to a specific date and time within thirty days of the first hearing, then no renoticing is required. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.130 Findings for approval.
A. Conformance with LCP Required. A CDP shall be granted only upon finding that the proposed project is consistent with the LCP. As applicable to the proposed project, the review authority shall consider whether:
1. The project is consistent with the LCP land use plan, and the LCP implementation program.
2. The project maintains or enhances public views.
3. The project maintains or enhances vegetation, natural habitats and natural resources.
4. The project maintains or enhances low-cost public recreational access, including to the beach and ocean.
5. The project maintains or enhances opportunities for visitors.
6. The project maintains or enhances coastal resources.
7. The project, including its design, location, size, and operating characteristics, is consistent with all applicable design plans and/or area plans incorporated into the LCP.
8. The project is consistent with the LCP goal of encouraging appropriate coastal development and land uses, including coastal priority development and land uses (i.e., visitor serving development and public access and recreation).
B. Basis for Decision. The findings shall explain the basis for the conclusions and decisions of the city and shall be supported by substantial evidence in the record. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.140 Notice of final action.
The city’s action on a CDP shall become final when all local rights of appeal have been exhausted per Section 17.44.150(A) (Local Appeals). Within seven calendar days of a final decision on a CDP application, the city shall provide notice of its action by first class mail to the applicant, the Coastal Commission, and any other persons who have requested notice. The notice shall contain, at a minimum, the following:
A. Cover Sheet/Memo. The cover sheet/memo shall be dated and shall clearly identify the following information:
1. All project applicants and project representatives, their address(es), and other contact information.
2. Project description and location.
3. All local appeal periods and disposition of any local appeals filed.
4. Whether the city’s decision is appealable to the Coastal Commission, the reasons for why it is or is not, and procedures for appeal to the Coastal Commission.
5. A list of all additional supporting materials provided to the Coastal Commission (see subsection B of this section).
6. All recipients of the notice.
B. Additional Supporting Materials to the Coastal Commission. The additional supporting materials shall include at a minimum the following:
1. The final adopted findings and final adopted conditions.
2. The final staff report.
3. The approved project plans.
4. All other substantive documents cited and/or relied upon in the decision including CEQA documents, technical reports (e.g., geologic, geotechnical, biological), correspondence, and similar documents. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.150 Appeals.
A. Local Appeals. Community development director decisions on CDPs may be appealed to the planning commission and planning commission decisions may be appealed to the city council as follows:
1. Community Development Director Decisions. Any decision of the community development director may be appealed to the planning commission within ten calendar days of the community development director’s decision.
2. Planning Commission Decisions. Any decision of the planning commission may be appealed to the city council within ten calendar days of the planning commission’s decision.
B. Appeals to the Coastal Commission.
1. In accordance with Public Resources Code Section 30603, any final approval decision by the city on a CDP in the geographic areas defined in subsections (B)(3)(a) through (b) of this section, or any final approval or denial decision by the city on a CDP for a major public works project (including a publicly financed recreational facility and/or a special district development), or a major energy facility located anywhere in the coastal zone, may be appealed to the Coastal Commission.
2. Appeals to the Coastal Commission may be filed by the project applicant, any aggrieved person, or any two members of the Coastal Commission.
3. The following types of projects may be appealed to the Coastal Commission:
a. Projects located between the sea and the first public road paralleling the sea or within three hundred 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.
b. Projects located on tidelands, submerged lands, public trust lands, within one hundred feet of any wetland, estuary, or stream, or within three hundred feet of the top of the seaward face of any coastal bluff.
c. Any development which constitutes a major public works project or a major energy facility.
4. Appeals must be submitted to the Coastal Commission within ten working days of Coastal Commission receipt of a complete notice of final action.
5. City decisions may be appealed to the Coastal Commission only after an appellant has exhausted all local appeals pursuant to subsection A of this section (Local Appeals), except that exhaustion of all local appeals is not required if any of the following occur:
a. The city requires an appellant to appeal to more local appellate bodies than have been certified as appellate bodies for CDPs in the coastal zone.
b. An appellant was denied the right of the initial local appeal by a city ordinance which restricts the class of persons who may appeal a local decision.
c. An appellant was denied the right of local appeal because city notice and hearing procedures for the development did not comply with this title.
d. The city required an appeal fee for the filing or processing of the appeal.
6. Grounds for appeal of an approved or denied CDP are limited to the following:
a. For approval, that the development does not conform to the standards set forth in the LCP, or the development does not conform to the public access policies of the Coastal Act;
b. An appeal of a denial of a permit for a major public works shall be limited to an allegation that the development conforms to the standards set forth in the LCP and the public access policies of the Coastal Act. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.160 Permit issuance.
A. Effective Date of a CDP.
1. For city actions on CDPs that are not appealable to the Coastal Commission, a CDP shall become effective seven working days after the city’s final decision.
2. For development within the Coastal Commission appeal area, CDPs shall become effective after ten working days if no appeal has been filed. The ten working day appeal period starts the day after the Coastal Commission receives adequate notice of the city’s final decision.
B. Expiration of Permits and Extensions.
1. A CDP not exercised within two years shall expire and become void, unless the permittee applies for an extension of the expiration deadline prior to the permit expiration.
2. An extension request may only be granted for good cause, and only if there are no changed circumstances that may affect the consistency of the development with the LCP (and the Coastal Act, if applicable). In cases where an extension is not granted, the CDP shall be considered expired and the applicant shall be required to apply for a new CDP to undertake the proposed development.
3. Any extension request shall be in writing by the applicant or authorized agent prior to expiration of the two-year period. The city will not consider the extension request if received after the CDP expiration deadline. Public notice and hearing requirements for an extension request shall be the same as for a CDP amendment.
4. De minimis CDP waivers may not be extended beyond the two-year authorization period.
C. CDP Amendment.
1. Provided the CDP has been exercised prior to expiration, or has not yet expired, an applicant may request a CDP amendment by filing an application to amend the CDP pursuant to the requirements of this chapter that apply to new CDP applications, including, but not limited to, public notice and hearing requirements.
2. Any approved CDP amendment must be found consistent with all applicable LCP requirements and the Coastal Act if applicable.
3. Any CDP amendment shall be processed as appealable to the Coastal Commission if the base CDP was also processed as appealable, or if the development that is the subject of the amendment makes the amended project appealable to the Coastal Commission.
D. Revocation of Permits. Where one or more of the terms and conditions of a CDP have not been, or are not being, complied with, or when a CDP was granted on the basis of false material information, the original review authority (community development director, planning commission or city council) may revoke or modify the CDP following a public hearing. Notice of such public hearing shall be the same as would be required for a new CDP application.
E. CDP Application Resubmittals. For a period of twelve months following the denial or revocation of a CDP, the city shall not accept a CDP application for the same or substantially similar project for the same site, unless for good cause the denial or revocation action includes an explicit waiver of this provision. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.170 Emergency CDPs.
A. Purpose. An emergency CDP may be granted at the discretion of the community development director for projects normally requiring CDP approval. To be eligible for an emergency CDP, a project must be undertaken as an emergency measure to prevent loss or damage to life, health or property, or to restore, repair, or maintain public works, utilities and services during and immediately following a natural disaster or serious accident.
B. Application. Application for an emergency CDP shall be made to the city in writing if time allows, and by telephone or in person if time does not allow. The applicant shall submit the appropriate fees at the time of application for an emergency CDP.
C. Required Information. The information to be reported during the emergency, if it is possible to do so, or to be fully reported after the emergency, shall include all of the following:
1. The nature of the emergency.
2. The cause of the emergency, to the extent this can be established.
3. The location of the emergency.
4. The remedial, protective, or preventive work required to deal with the emergency.
5. The circumstances during the emergency that appeared to justify the course of action taken, including the probable consequences of failing to take action.
6. All available technical reports and project plans.
D. Verification of Facts. The community development director or other designated local official shall verify the facts, including the existence and nature of the emergency, as time allows. The community development director may request, at the applicant’s expense, verification by a qualified professional of the nature of the emergency and the range of potential solutions to the emergency (including identifying how the proposed solutions meet the criteria for granting the emergency CDP). The community development director may consult with the Coastal Commission as time allows to determine whether to issue an emergency CDP.
E. Public Notice. The community development director shall provide public notice, including notice to the Coastal Commission, as soon as reasonably possible, of the proposed emergency action, with the extent and type of notice determined on the basis of the nature of the emergency itself.
F. Criteria for Granting Permit. The community development director may grant an emergency CDP upon making all of the following findings:
1. An emergency exists and requires action more quickly than permitted by the procedures for an ordinary CDP.
2. The development can and will be completed within thirty days unless otherwise specified by the terms of the permit.
3. Public comment on the proposed emergency action has been reviewed if time allows.
4. The work proposed will be consistent with the requirements of the LCP.
G. Conditions. The community development director may attach reasonable terms and conditions to the granting of an emergency CDP, including an expiration date and the necessity for a regular CDP application by a specified date. At a minimum, all emergency CDPs shall include the following conditions:
1. The emergency CDP shall be voided if the approved activity is not undertaken within a reasonable time period as determined by the community development director.
2. The emergency CDP shall expire sixty days following its issuance, or alternative time period as determined by the community development director. Any work completed outside of this time period requires a regular CDP approval unless an extension is granted by the city for good cause.
3. The emergency development authorized by the emergency CDP is only temporary, and may remain only with approval of a regular CDP.
4. The applicant shall submit an application for a regular CDP within thirty days of completion of construction authorized by the emergency CDP, or alternative time period as determined by the community development director. The application shall include all information and materials required by the department, including photographs (if available) showing the project site before, during, and after emergency construction.
5. If the applicant does not apply for or obtain a regular CDP within the specified time period, the emergency development may be subject to enforcement action in accordance with Section 17.44.180 (CDP violations).
H. Limitations.
1. The emergency work authorized under approval of an emergency CDP shall be limited to activities necessary to protect the endangered structure or essential public infrastructure.
2. The emergency CDP shall be voided if the approved emergency CDP is not exercised within thirty days of issuance of the permit.
3. The emergency CDP shall expire sixty days after issuance. Any work completed outside of these time periods requires a regular CDP approval unless an extension is granted by the city for good cause.
I. Application for Regular CDP. After the issuance of an emergency CDP, the applicant shall submit a completed CDP application and any required technical reports within a time specified by the community development director, but not to exceed thirty days. All emergency development approved pursuant to this section is considered temporary and shall be subject to enforcement action in accordance with Section 17.44.180 (CDP violations) if an application to recognize the development is not submitted within the time frame specified in the emergency CDP, unless the community development director authorizes an extension of time for good cause.
J. Reporting of Emergency Permits. The community development director shall inform (within five working days) the Executive Director of the Coastal Commission that an emergency CDP has been issued, and shall report the emergency CDP to the city council and planning commission at the first scheduled meeting after the emergency CDP has been issued. (Ord. 1043 § 2 (Att. 2), 2020)
17.44.180 CDP violations.
A. Enforcement of Violations.
1. The city will actively investigate and enforce any development activity that occurs within the coastal zone without a CDP pursuant to the requirements of the LCP. The city will work to resolve any alleged violations of the LCP in a timely manner, including through the use of appropriate enforcement actions.
2. In addition to all other available remedies, the city may seek to enforce the LCP and the Coastal Act pursuant to Public Resources Code Sections 30800 through 30822.
3. If the city does not resolve violations in a timely manner, the Coastal Commission retains the authority to enforce the requirements of the LCP through its own enforcement actions pursuant to Coastal Act Sections 30809 and 30810.
B. Civil Liability. Any person who performs or undertakes development in violation of the LCP or inconsistent with a previously issued CDP may, in addition to any other penalties, be civilly liable in accordance with Public Resources Code Section 30820.
C. Legal Lot Required. Development may only be undertaken on a legally established lot.
D. Removal of Existing Violations. No CDP application (including CDPs, CDP exclusions and exemptions, and de minimis CDP waivers) shall be approved unless all unpermitted development on the property that is functionally related to the proposed development is proposed to be removed (and the area restored) or retained consistent with the requirements of the LCP. (Ord. 1043 § 2 (Att. 2), 2020)