Chapter 17.46
CZ COASTAL ZONE COMBINING DISTRICT

Sections:

17.46.010    Purpose.

17.46.020    General provision.

17.46.030    Definitions.

17.46.040    Development requiring a coastal permit/jurisdiction.

17.46.050    Coastal permit exemptions.

17.46.055    Coastal exclusion zones.

17.46.060    Permit application requirements and fees.

17.46.070    Application review.

17.46.080    Hearing and noticing procedures.

17.46.090    Coastal permit approval.

17.46.100    Notice of final action.

17.46.110    Appeals.

17.46.120    Permit issuance.

17.46.130    Emergency permits.

17.46.140    Amendments.

17.46.150    Consistency required.

17.46.010 Purpose.

A. The purpose of this chapter is to establish review and permit procedures for the implementation of Capitola’s local coastal program, and to ensure that all private and public development projects within the city’s coastal zone are consistent with the city’s adopted and certified local coastal land use plan and implementation program and:

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 codified at 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;

2. To implement the public access and recreation policies of Chapter 3 of the Coastal Act (Sections 30210 – 30255).

B. In achieving these purposes, this section shall be given the most liberal construction possible so that public access to the navigable waters shall always be provided and protected consistent with the goals, objectives and policies of the California Coastal Act and Article X, Section 4, of the California Constitution. (Ord. 691 § 5, 1990; Ord. 627 Exhibit A (part), 1987)

17.46.020 General provision.

This chapter establishes the coastal zone district (CZ) as a combining district, to be used in addition to and in conjunction with, existing zoning districts established to regulate land use within Capitola’s coastal zone. Principal permitted uses and conditional uses allowed in the CZ district are those uses allowed in the basic underlying zoning district. The regulations of this chapter shall apply in addition to those of the underlying district. In case of a conflict between regulations, the regulations of this chapter shall take precedence over those of the underlying district. (Ord. 627 Exhibit A (part), 1987)

17.46.030 Definitions.

For purposes of this chapter, the following definitions shall apply.

A. Access, Types: Types of access are as follows:

1. Lateral public access provides public access and use along or parallel to the sea.

2. Bluff top access provides public access and coastal viewing along a coastal bluff top area.

3. Vertical access provides a public access connection between the first public road, trail, or public use area nearest the sea and the publicly owned tidelands or established lateral access.

4. Trail access provides public access along a coastal recreational path, including to and along lakes, rivers, streams, freshwater marshes, significant habitat and open space areas or similar resource areas, and which also may link inland 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.

B. Access, Character.

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 accesways, it will be applied only in connection with vertical access or other types of access where the findings required by Section 17.46.090 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 the right of the public to conduct activities normally associated with beach use, such as walking, swimming, jogging, sunbathing, fishing, surfing, picnicking, but not including organized sports, campfires, or vehicular access other than for emergencies or maintenance.

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.

C. “Aggrieved person” means for the purposes of a coastal permit appeal to the coastal commission, any person who, in person or through a representative, appeared at a city public hearing in connection with the decision or action 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.

D. “Applicant” means the person, partnership, corporation, or state or local public agency applying for a coastal permit.

E. “Coastal Commission” means the California Coastal Commission.

F. “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.

G. “Coastal permit” means a permit issued by the city in accordance with provisions of this chapter, approving a project in the coastal zone combining district as being in conformance with the Local Coastal Program. A coastal permit includes all application materials, plans and conditions on which the approval is based.

H. “Combining district” means a zone district established pursuant to city zoning regulations, the regulations of which apply to a property in addition to the requirement of the basic zone district on the property. The coastal zone district is a combining district.

I. “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.

“Development” does not include the replacement of a mobile home with one which is not more than ten percent larger in floor area, nor 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.

J. “Local Coastal Program” means the city’s land use plan, zoning ordinance, zoning maps and implementing ordinance, and actions certified by the Coastal Commission as meeting the requirements of the California Coastal Act of 1976.

K. “Major energy facility” means within the coastal zone any public or private processing, producing, generating, storing, transmitting or receiving facility for electricity, natural gas, petroleum, coal, or other source of energy for which the estimated construction costs exceed twenty-five thousand dollars.

L. “Major public works facility” means in the coastal zone, any public works project located within an area for which coastal permits are appealable, and that cost more than twenty-five thousand dollars except where service by a public agency is required to protect life and public property from imminent danger, or to restore, repair or maintain public works, utilities or services destroyed, damaged, or interrupted by natural disaster or serious accident.

M. “New development.” For purposes of implementing the public access requirements of Public Resources Code Section 30212 and of this title, “new development” includes “development as defined above except the following:

1. 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 ten percent, and is 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 the owners.

2. 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 ten percent, and that the reconstructed residence shall be sited in the same location on the affected property as the former structure.

3. 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 ten percent, which do not block or impede access, and which do not result in a seaward encroachment by the structure.

4. Repair and Maintenance. Repair or maintenance activity which, pursuant to Public Resources Code Section 30610, requires no permit unless the activity will have an adverse impact on lateral public access along the beach.

5. Reconstruction and Repair. The reconstruction or repair of any seawall; provided, that the reconstructed or repaired seawall is not 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 design or construction which results in different or greater impacts to shoreline resources than those of the existing structure.

N. “Notice of categorical exclusion” means a form signed by the community development director stating that a development meets the requirements for exclusion and is exempt from the coastal permit requirement.

O. “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. “Sea” does not include the area of jurisdiction of the San Francisco Bay Conservation and Development Commission, established pursuant to Title 7.2 (commencing with Section 66600) of the Government Code, including any river, stream, tributary, creek or flood control or drainage channel flowing directly or indirectly into such area.

P. “Working day” means any day on which city offices are open for business.

Q. “Structure,” as used in this chapter, includes, but is not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line and electrical power transmission and distribution line. (Ord. 743 § 2, 1992; Ord. 727 § 1, 1992; Ord. 691 § 6, 1990; Ord. 685 § 12, 1989; Ord. 677 § 1(A), 1989; Ord. 627 Exhibit A (part), 1987)

17.46.040 Development requiring a coastal permit/jurisdiction.

A. All development undertaken after November 8, 1972, within the coastal zone as defined in the Coastal Initiative of 1972, or after January 1, 1977, within the coastal zone as defined by the Coastal Act of 1976, shall have a valid coastal development permit issued by the California Coastal Commission or by the city pursuant to its LCP. Such requirement pertains to both public and private development, except for the exemptions set forth in Section 17.46.050.

Such requirement is in addition to any other city required permits. Coastal permit applications shall be processed concurrently with any other required permit applications.

B. The following principles control whether an application comes under city or coastal commission jurisdiction:

Development authorized by a coastal commission-issued permit remains under the jurisdiction of the commission for the purposes of condition compliance, amendment and revocation. An addition to development completed under the authority of a commission-issued permit shall be reviewed by the city pursuant to an application for a new permit, provided that the commission determines that the addition is not contrary to any term or condition of the Commission-issued permit.

C. The following principles are applicable to proposals pending at time of LCP certification:

1. Any development proposal which the city approved before certification of the local coastal program, but which has not been submitted to the commission for approval, shall be resubmitted to the city through an application for a permit pursuant to this chapter. Decision on the application shall be based solely on the requirements of city’s LCP.

2. Any development proposal which the city has approved before certification of the local coastal program, and for which an application has been filed with the commission, will return to the city for completion of review if the commission has not heard the application. Decision on the application will be based solely on the city’s local coastal plan. (Ord. 691 § 7, 1990; Ord. 677 § 1(B), 1989; Ord. 627 Exhibit A (part), 1987)

17.46.050 Coastal permit exemptions.

A. The following types of development are exempt from the coastal permit requirement pursuant to the Coastal Act Section 30610. Requirements for any other type of permit are unaffected by this section.

1. Improvements to existing single-family residences, except as required by subsection 2 of this subsection:

a. For purposes of this subsection, where there is an existing single-family residential building, the following shall be considered a part of that structure:

i. All fixtures and other structures directly attached to a residence,

ii. Structures on the property 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, and

iii. Landscaping on the lot;

b. The following classes of development require a coastal development permit because they involve a risk of adverse environmental effects:

i. Improvements to a single-family structure if the structure or improvement is located on a beach, in a wetland, seaward of the mean high tide line, in an environmentally sensitive habitat area, in an area designated as highly scenic in a certified land use plan; or, in an area within fifty feet of the edge of a coastal bluff,

ii. Any significant alteration of land forms including removal or placement of vegetation on a beach, wetland or sand dune, or within fifty feet of the edge of a coastal bluff or in environmentally sensitive habitat areas as defined in the Coastal Act,

iii. The expansion or construction of water wells or septic systems,

iv. On property not included in subsection (A)(1)(b)(i) 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 above the mean high tide of the sea where there is no beach, whichever is the greater distance, or in significant scenic resource areas as designated by the Coastal Commission,

(A) An improvement that would result in an increase of ten percent or more of internal floor area of the existing structure,

(B) An additional improvement of ten percent or less where an improvement to the structure has previously been undertaken pursuant to Public Resources Code Section 30610(a),

(C) An increase in height of more than ten percent of an existing structure, and/or

(D) Any significant nonattached structure such as garages, fences, shoreline protective works or docks,

v. In areas which the commission or regional commission has previously declared by resolution after the public hearing to have a critically short water supply that must be maintained for protection of coastal recreational 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 any landscaping irrigation system,

vi. Any addition to a single-family residence where the development permit issued for the original structure by the commission or the city indicated that any future improvements would require a development permit;

2. Improvements to a structure other than a single-family residence or a public works facility, except as required by subsection (A)(1)(b) of this section;

a. For purposes of compliance with Public Resources Code Section 30610(b) where there is an existing structure, other than a single-family residence or public works facility, the following shall be considered a part of that structure:

i. All fixtures and other structures directly attached to the structure,

ii. Landscaping on the lot;

b. The following classes of development require a coastal development permit because they involve a risk of adverse environmental effect, adversely affect public access, or involve a change in use contrary to the policy of Division 20 of the Public Resources Code:

i. Improvements to any structure on a beach, in a wetland, stream or lake, seaward of the mean high tide line; or within fifty feet of the edge of a coastal bluff,

ii. 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 an environmentally sensitive habitat area as defined in the Coastal Act,

iii. The expansion or construction of water wells or septic systems,

iv. On property not included in subsection (A)(2)(b)(i) 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 above the mean high tide of the sea where there is no beach, whichever is the greater distance, or in significant scenic resource areas as designated by the commission or regional commission:

(A) An improvement that would result in an increase of ten percent or more of internal floor area of the existing structure, or

(B) An additional improvement of ten percent or less where an improvement to the structure has previously been undertaken pursuant to Public Resources Code Section 30610(b), and

(C) An increase in height of more than ten percent of an existing structure;

v. In areas which the commission or regional commission has previously declared by resolution after public hearing to have a critically short water supply that must be maintained for protection of coastal recreational 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 landscaping irrigation system,

vi. Any improvement to a structure where the development permit issued for the original structure by the commission or the city indicated that any future additions would require a development permit,

vii. Any improvement to a structure which changes the intensity of use of the structure,

viii. Any improvement made pursuant to a conversion of an existing structure from a 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 or motel/hotel time-sharing conversion;

3. Repair and maintenance activities requiring a coastal development permit:

a. For purposes of compliance with the Public Resources Code Section 30610(d), the following extraordinary methods of repair and maintenance shall require a coastal development permit because they involve a risk of substantial adverse environmental impact:

i. Any method of repair or maintenance or a seawall revetment, bluff retaining wall, breakwater, groin, culvert, outfall, or similar shoreline work that involves:

(A) Repair or maintenance involving substantial alteration of the foundation of the protective work, including pilings and other surface or subsurface structures,

(B) The placement, whether temporary or permanent, of rip-rap, 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,

(C) The placement of twenty percent or more of the materials of an existing structure with materials of a different kind, or

(D) The presence, whether temporary or permanent, of mechanized construction equipment or construction materials on any sand area or bluff or environmentally sensitive habitat area as defined by the Coastal Act, or within twenty feet of coastal waters or streams;

ii. Any method of routine maintenance dredging that involves:

(A) The dredging of one hundred thousand cubic yards or more within a twelve-month period,

(B) The placement of dredged spoils of any quantity within an environmentally sensitive habitat area as defined by the Coastal Act, on 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, or

(C) The removal, sale, or disposal or dredged spoils of any quantity that would be suitable for beach nourishment in an area the commission has declared by resolution to have a critically short sand supply that must be maintained for protection of structures, coastal access or public recreational use;

iii. Any repair or maintenance to facilities or structures or work located in an environmentally sensitive habitat area as defined by the Coastal Act, 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:

(A) The placement or removal, whether temporary or permanent, of riprap, rocks, sand or other beach material or any other forms of solid materials,

(B) The presence, whether temporary or permanent, of mechanized equipment, or construction materials.

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 a proposed activity will have a risk of substantial adverse impact on public access, environmentally sensitive habitat area, wetlands, or public views of the ocean.

b. 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 considered repair and maintenance under PRC Section 30610(d) but instead constitutes a replacement structure requiring a coastal permit.

c. In any particular case, even though a method of repair and maintenance is identified in subsection (A)(3)(a) of this section, the executive director of the coastal commission may, where he or she finds the impact of development on coastal resources or coastal access to be insignificant, waive the requirement of a permit; provided, however, that any such waiver shall not be effective until it is reported to the commission at its next regularly scheduled meeting. If any three commissioners object to the waiver, the proposed improvement shall not be undertaken without a permit. (Authority PRC S. 30333)

B. The following types of developments are exempt from the coastal permit requirement pursuant to Public Resources Code, Division 20, California Coastal Act, Chapter 7, Development Controls, Sections 30610, 30610.1, and 30610.5, except as required by subsection A of this section:

1. Exempted improvements to existing single-family residences:

a. Properties within the city of Capitola appealable area as designated in the LCP, with less than ten percent increase of internal floor area; unless a previous improvement to the structure has been undertaken pursuant to this section or Public Resources Code Section 30610(a), or the improvement result in an increase in height by ten percent or less.

b. Categorically Excluded Development. Projects or activities specifically identified in a categorical exclusion order, per Section 17.46.055 of this chapter, certified by the California Coastal Commission and consistent with Public Resources Code Section 30610(e).

c. Properties located in the nonappealable area; provided they have adequate water supply and do not affect coastal access and coastal resources.

2. Exempted improvements to a structure other than a single-family residence or a public works facility:

a. Properties within the appealable area but with less than ten percent increase of internal floor, unless an improvement to the structure has previously been undertaken pursuant to this section or Public Resources Code Section 30610(a), or the improvement result in an increase in height by ten percent or less.

b. Properties located in the nonappealable area; provided they have adequate water supply and do not affect coastal access and coastal resources.

c. Any improvement made pursuant to a conversion of an existing multiple unit structure from residential rental use to a use involving a fee ownership or long-term leasehold including, but not limited to, condominium conversions or stock cooperative conversions, but not including motel/hotel time sharing conversions. As defined in Section 11003.5 of the Business and Professions Code, “Condominium conversion” is not considered a timeshare for purposes of this subdivision.

3. Exempted repair and maintenance activities:

a. On-going routine repair and maintenance activities of the city, involving shoreline works protecting transportation roadways;

b. The installation, testing and placement in service or the replacement of any necessary utility connection between an existing service facility and any development approved pursuant to this chapter; provided, however, that the city may, where necessary, require reasonable conditions to mitigate any adverse impacts on coastal resources, including scenic resources;

c. Maintenance dredging of existing navigation channels or moving dredged material from those channels to a disposal area outside the coastal zone, pursuant to a permit from the United States Army Corps of Engineers;

d. Repair or maintenance activities that do not result in an addition to, or enlargement or expansion of, the object of those repair or maintenance activities, not including extraordinary methods of repair and maintenance per subsection (A)(3) of this section. (Ord. 868 § 2, 2004; Ord. 727 §§ 2 – 5, 1992; Ord. 691 § 8, 1990; Ord. 677 § 1(C), 1989; Ord. 627 Exhibit A (part), 1987)

17.46.055 Coastal exclusion zones.

Projects that will not result in a potential for any significant adverse effect, either individually or cumulatively, on coastal resources or on public access to, or along, the coast are excluded from the requirements of coastal development permit processing as authorized by and in accordance with the procedures certified by the California Coastal Commission.

Projects listed in this section have been approved as categorical exclusions by the California Coastal Commission for the exclusion zones as designated geographically by the coastal commission. Excluded projects as delineated below do not need to obtain a coastal permit, provided that a notice of exclusion is issued pursuant to this section. Requirements for any other city permit are unaffected by this section. Challenges to determination of exclusion may be made pursuant to subsection F of this section.

The Coastal Commission original jurisdiction and areas of deferred certification are not subject to local government coastal permit jurisdiction and, hence, are not excludable. In addition to this limitation and pursuant to Coastal Act Section 30610.5(b), tide and submerged land, beaches, and lots immediately adjacent to the inland extent of any beach, or of the mean high tide line of the sea where there is no beach, and all lands and waters subject to the public trust, shall not be excluded from coastal permit requirements.

This section does not exclude development in environmental sensitive habitat areas, except for Exclusion Zone B, the coastal appeal zone.

A. Coastal Exclusion Zone A is the Capitola nonappealable coastal area, as identified in the Capitola “Permit and Appeal Jurisdiction” Map, and illustrated in Exhibit A, incorporate herein by reference. Within Coastal Exclusion Zone A, the following categories of development are excluded from a coastal development permit:

1. Residential Development Exclusions.

a. The construction of new, including construction of second family dwellings (SDU), reconstruction, demolition, repair, relocation, alteration or addition of the size of any residential project (one to four units) on existing lots at densities specified in the land use plan, on lots of record or lot combinations legal as of the date of local coastal program certification.*

*    The city of Capitola adopted a second family unit ordinance No. 858, and an urgency ordinance No. 860 in compliance with state law AB 1866. Section 17.15.040 Principal Permitted Uses, was amended by Ordinance No. 858 to include secondary dwelling units (SDU) as a principally permitted use in the R-1 district, provided standards in Ordinance No. 860 are met. The city council finds that SDU exclusion will facilitate the provision of affordable housing-infill development that is consistent with the scale, size and character of the surrounding community, with no adverse impacts to coastal access or coastal resources.

b. The installation of fixtures and other structures directly attached or not to the main residence, including but not limited to patio covers, swimming pools, garages, greenhouses, gazebos, fences, pre-fabricated storage sheds, and non-habitable accessory structures.

2. Commercial, Industrial, Public and Quasi-Public Development Exclusions.

a. Except as indicated in subsection b of this section, the exclusion for commercial, industrial, public and quasi-public development includes the following:

i. The construction of new, reconstruction, demolition, relocation or alteration of the size of any commercial structure less than five thousand square feet in size legal lots of record zoned for commercial use; this exclusion also applies to additions to existing structures where the resulting size is five thousand square feet or less,

ii. Change of use from commercial, industrial, public or quasi-public use in an existing structure,

iii. Outdoor sales, commercial sidewalk/ parking lot sales and outdoors display of merchandise;

b. This exclusion for commercial, industrial, public or quasi-public development does not include:

i. Any improvement made pursuant to a conversion of an existing structure occupied by visitor-serving hotels, motels or other accommodations.

3. Land Clearing Exclusions. When consistent with the city community tree and forest Ordinance No. 863.

4. Boundary Adjustments Exclusions. Boundary adjustments not resulting in an increase in the number of building sites, buildable lots, or density of permitted development.

5. Grading and Filling Exclusions. Grading and filling in conjunction with an approved project; or grading and filling consistent with the local coastal program provisions.

6. Temporary Structures Exclusions. All temporary (six months or less; non-renewable) structures and uses consistent with regulations and do not conflict with public access and access policies.

7. Other Excluded Development/ Applications. Provided the following projects have no potential for environmental adverse effects individually and cumulatively, do not adversely affect public access to the coast and coastal resources, including scenic resources, and the use is consistent with the Coastal Act Policies, other exclusions include:

a. Abatement of dangerous buildings and other nuisances pursuant to the city of Capitola Municipal Code;

b. Any project undertaken by a federal agency;

c. Bikeways. Construction of new bikeways (within existing rights-of-ways), except if new construction reduces parking in the beach areas;

d. Development requiring land use determinations with no potential for adverse impacts, and not including or affecting any visitor-serving (VS) uses;

e. Driveway width modification requests which are in accordance with the provisions contained in Chapter 12.32 of this code;

f. Encroachment permits type projects;

g. Home based business;

h. Interior remodels and tenant improvements. Interior remodels in residential and commercial structures when no intensification of the use and no loss of visitor-serving use is taking place;

i. Lot mergers, certificates of compliance, and reversions not resulting in a net increase in the number of building sites or potential building sites;

j. Public signs and other equipment installation in the public right-of-way, including but not limited to parking meters;

k. Projects with valid permit from the California Coastal Commission;

l. Signs Installations and Modifications to Signs. The installation of new or replacement signs and modifications to existing signs, provided the sign meets the requirements of the city of Capitola sign ordinance and/or LUP-Implementation Plan, and excluding those signs governing shoreline areas;

m. Temporary Events. Temporary, special events are excluded upon a consistency determination by the community development director with the following criteria:

i. The event will result in no adverse impact on opportunities for access to the area due to the proposed location and or timing of the event either individually or together with other temporary events scheduled before or after the particular event,

ii. 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 as defined in this chapter;

n. Tree removals consistent with Chapter 12.12, the community tree and forest management ordinance.

B. Coastal Exclusion Zone B is the city of Capitola appealable area, as identified in the Capitola “Permit and Appeal Jurisdiction” Map, and illustrated in Exhibit A. Within Coastal Exclusion Zone B, the following categories of development are excluded from a coastal development permit:

1. Bikeways Exclusions. Construction of new bikeways (within existing rights-of-ways), except if new construction reduces parking in the beach areas.

2. Fence permits exclusions up to six feet in height per the Capitola development standards.

3. Fixtures attached and accessory structures up to one hundred twenty square feet.

4. Improvements to single-family residences or minor residential remodels, not located in the Environmental Sensitive Habitat Zone, including additions up to thirty percent of living area or not exceeding four hundred square feet, whichever is less, and with less than ten percent increase in height, with architectural materials and colors to match the existing house.

5. Public signs and other equipment installation in the public right-of-way, including but not be limited to parking meters.

6. Second family dwellings exclusions (SDU) consistent with development standards in Chapter 17.99 including SDU as a principally permitted use.

7. Sign installations and modifications to signs exclusions. The installation of new or replacement signs and modifications to existing signs, provided the sign meets the requirements of the city of Capitola sign ordinance and/or LUP-Implementation Plan, and excluding those signs governing shoreline areas.

8. Temporary events exclusions. Special events shall be evaluated for exclusion status per subsection (A)(7)(m) of this section.

9. Temporary structures exclusions. All temporary (six months or less; non-renewable) structures and uses consistent with regulations and do not conflict with public access and access policies.

C. Determination of Excludability. This exclusion shall apply to the permit requirements of the Coastal Act of 1976, pursuant to Public Resources Code Sections 30610(e) and 30610.5(b), and shall not be construed to exempt any person from the permit requirements of any other federal, state or local government agency.

The determination of whether a development is categorically excluded or not, for purposes of notice, hearings and appeals shall be made by the community development director or zoning administrator at the time the application for development within the coastal zone is submitted. This determination shall be made with reference to the certified local coastal program, including any maps, categorical exclusions, land use designations and zoning ordinances which are adopted as part of the local coastal program. Only developments that fully comply with the policies and ordinances of the certified local coastal program may be excluded under this categorical exclusion.

D. Notice of Exclusion. Notices of exclusion shall be issued on forms prepared for that purpose by the community development department, and shall indicate the developer’s name, street address, if any, and assessor’s parcel number(s) of the project site, a brief description of the development, and the date(s) of application for any other permit(s). A copy of the notice of exclusion shall be provided to the Coastal Commission and to any person who has requested such notice within five working days of issuance. The notice of exclusion may be issued at the time of project application but shall not become effective until all other approvals and permits required for the project are obtained. A copy of all terms and conditions imposed by the city shall be provided to the Coastal Commission, per Section 13315 of the California Code of Regulations.

E. Effect of a Categorical Exclusion Order. Per the California Code of Regulations Section 13247, an order granting an exclusion for a category of development removes that category of development from the permit requirements of Chapter 7 of the California Coastal Act of 1976 to the extent and in the manner specifically provided in the exclusion order. No development inconsistent with such order may take place unless the order is amended or terminated or a final development permit is issued.

F. Challenges. Where an applicant, interested person, coastal commission, the community development director (CDD) or zoning administrator (ZA) has a question as to the appropriate designation for the development the following procedures shall established whether a development is categorically excluded:

1. The CDD or the ZA shall make a determination as to what type of development is being proposed (i.e., categorically excluded) and shall inform the applicant of the notice and hearing requirements for that particular development.

2. If the determination of the CDD or ZA is challenged or if he or she wishes to have the Coastal Commission determine the appropriate designation, he or she shall notify the Commission by telephone of the dispute/question and shall request an executive director’s opinion.

3. The executive director of the Coastal Commission shall, within two working days of the CDD or zoning administrator’s request (or upon completion of a site inspection where such inspection is warranted), transmit determination as to whether the development is categorically excluded.

4. Where, after investigation, the executive director’s determination is not in accordance with the CDD or zoning administrator’s determination, the Coastal Commission shall hold a hearing for purposes of determining the appropriate designation for the area. The Coastal Commission shall schedule the hearing on the determination for the next practicable Commission meeting in the appropriate geographic region of the state following the CDD or zoning administrator’s request.

5. Exclusion shall not be approved until the determination process provided in subsections (F)(1) through (4) have been completed.

G. Waive of Public Hearing for “Minor Development.” This subdivision does not provide for a full exclusion from the requirement for a coastal development permit, however, it provides for waive of a required public hearing, allowing administrative review of a project. To qualify for this waive of public hearing requirement, the project shall be considered “minor development,” according to PRC Section 30624.9.

“Minor development” means a development that requires no other discretionary approval by the jurisdiction other than a coastal development permit. A local government may waive the public hearing requirement provided the project has no potential for adverse effects, either individually or cumulatively on coastal resources or public access to the shoreline, and it is consistent with the certified LCP, subject to special noticing as follows:

1. Notice that a public hearing would be held upon request is to be sent to all persons who would otherwise be required and any other persons who have shown interest;

2. No request for a public hearing is received within fifteen working days from the date notice was mailed out; and

3. The notice shall disclose that the failure to request a public hearing triggers the loss of appeal power on the matter being considered for administrative approval. (Ord. 868 § 3, 2004)

17.46.060 Permit application requirements and fees.

Application for a coastal permit shall be made concurrently with application for any other permits or approvals required for the project that are administered by the planning department. The coastal permit application fee shall be accompanied by:

A. A filing fee set by resolution of city council;

B. Evidence that the applicant is the owner or purchaser under contract, of the property involved, or has written permission of the owner to make the application;

C. Any necessary maps, drawings or supplementary information, as indicated on the application form; and

D. Materials required for notifying interested/affected parties, including assessor’s parcel map(s) showing the applicant’s property and all other properties within one hundred feet of the property lines of the project site; and stamped envelopes addressed to each owner and occupant of property situated within one hundred feet of the property lines of the project site (excluding roads), along with a list containing the addresses and assessor’s parcel numbers of same on a form provided by the city. (Ord. 627 Exhibit A (part), 1987)

17.46.070 Application review.

The city planning department shall review the submitted coastal permit application and notify the applicant of any additional application requirements within thirty days of receipt of the application. For the purposes of notice, hearing and appeals procedures, the city shall, at the time of submittal of coastal permit application, make a determination of whether the development is categorically excluded, exempted, appealable, or nonappealable. Upon determination, the city shall inform the applicant of the notice and hearing requirements for that development. If the determination is challenged by the applicant or interested person, the matter shall be referred to the Executive Director of the California Coastal Commission for resolution. (Ord. 627 Exhibit A (part), 1987)

17.46.080 Hearing and noticing procedures.

A. Hearing Required. At least one public hearing shall be required prior to approval of a coastal permit, except for a secondary dwelling unit.

B. Hearing Date. A public hearing date on a coastal permit application shall be set within ten working days upon completion of environmental review. If action on other permits or approvals is required for the project, the city shall act concurrently on the coastal permit.

C. Hearing Notice. Not less than ten calendar days nor more than forty-five calendar days prior to a public hearing, the city shall send notice by first class mail to the property owner or duly authorized agent, to all city libraries to be posted or kept in a public file, to a newspaper of general circulation, to all property owners and residents within one hundred feet of the project site, the California Coastal Commission, and to all other persons who request such notice. In addition, a notice will be posted and maintained on the project site by the applicant. Failure to adequately post or maintain the, notice shall be cause for continuance of the hearing.

D. Hearing Continuance. If a decision upon a permit is continued to a time which was neither previously stated in the notice, nor announced at the hearing as being continued to a certain time, the city shall provide notice of further hearings as described above.

E. Notice Contents. All hearing notices shall contain at a minimum:

1. A statement that the development is within the coastal zone,

2. Name of the applicant,

3. Date of filing,

4. Project location and description,

5. Application number,

6. Statement of the coastal status,

7. The date, time and place of the public hearing,

8. A brief description of the city’s general procedure concerning the hearing process, and

9. A description of the appeal process. (Ord. 886 § 1, 2005; Ord. 627 Exhibit A (part), 1987)

17.46.090 Coastal permit approval.

A. Approving Authority. Action on a coastal permit shall be taken by the planning commission or city council on appeal concurrent with other required permit applications.

B. Right to Comment. Prior to the time set for any public hearing, any person having any interest affected by the pending application may file with the planning department a written statement either approving or objecting to the application. Any person may also appear at the hearing to present oral testimony.

C. Permit Approval. Following a completion of testimony at the public hearing and consideration of all evidence, the planning commission shall approve, conditionally approve, partially approve, deny, or continue a coastal permit application consistent with the city’s Local Coastal Program.

D. Findings Required. A coastal permit shall be granted only upon adoption of specific written factual findings supporting the conclusion that the proposed development conforms to the certified Local Coastal Program, including, but not limited to:

1. a. A statement of the individual and cumulative burdens imposed on public access and recreation opportunities based on applicable factors identified pursuant to subsection (D)(2) of this section. The type of affected public access and recreation opportunities shall be clearly described;

b. An analysis based on applicable factors identified in subsection (D)(2) of this section of the necessity for requiring public access conditions to find the project consistent with the public access provisions of the Coastal Act;

c. A description of the legitimate governmental interest furthered by any access conditioned required;

d. An explanation of how imposition of an access dedication requirement alleviates the access burdens identified.

2. Require 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 (D)(2)(a) through (e), 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 adverse effects which have been identified will be alleviated or mitigated by the dedication. 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.

a. Project Effects on Demand for Access and Recreation. Identification of existing and open public access and coastal recreation areas and facilities in the regional and local vicinity of the development. Analysis of the project’s effects upon existing public access and recreation opportunities. 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. Projection for the anticipated demand and need for increased coastal access and recreation opportunities for the public. Analysis of the contribution of the project’s cumulative effects to any such projected increase. 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. 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;

b. Shoreline Processes. 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 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. Identification of anticipated changes to shoreline processes at the site. Identification of anticipated changes to shoreline processes and beach profile unrelated to the proposed development. 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. 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;

c. Historic Public Use. Evidence of use of the site by members of the general public for a continuous five-year period (such use may be seasonal). 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 and/or improved the area subject to historic public use and the nature of the maintenance performed and improvements made. 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. 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);

d. Physical Obstructions. 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;

e. Other Adverse Impacts on Access and Recreation. Description of the development’s physical proximity and relationship to the shoreline and any public recreation area. Analysis of the extent of 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. 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.

3. Required Findings for Public Access Exceptions. Any determination that one of the exceptions of subsection (F)(2) applies to a development shall be supported by written findings of fact, analysis and conclusions which address all of the following:

a. The type of access potentially applicable to the site involved (vertical, lateral, bluff top, 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;

b. 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;

c. 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.

4. Findings for Management Plan Conditions. Written findings in support of a condition requiring a management plan for regulating the time and manner or character of public access use must address the following factors, as applicable:

a. Identification and protection of specific habitat values including the reasons supporting the conclusions that such values must be protected by limiting the hours, seasons, or character of public use;

b. Topographic constraints of the development site;

c. Recreational needs of the public;

d. Rights of privacy of the landowner which could not be mitigated by setting the project back from the access way or otherwise conditioning the development;

e. The requirements of the possible accepting agency, if an offer of dedication is the mechanism for securing public access;

f. Feasibility of adequate setbacks, fencing, landscaping, and other methods as part of a management plan to regulate public use.

5. Project complies with public access requirements, including submittal of appropriate legal documents to ensure the right of public access whenever, and as, required by the certified land use plan and Section 17.46.010 (coastal access requirements);

6. Project complies with visitor-serving and recreational use policies;

7. Project complies with applicable standards and requirements for provision of public and private parking, pedestrian access, alternate means of transportation and/or traffic improvements;

8. Review of project design, site plan, signing, lighting, landscaping, etc., by the city’s architectural and site review committee, and compliance with adopted design guidelines and standards, and review committee recommendations;

9. Project complies with LCP policies regarding protection of public landmarks, protection or provision of public views; and shall not block or detract from public views to and along Capitola’s shoreline;

10. Demonstrated availability and adequacy of water and sewer services;

11. Provisions of minimum water flow rates and fire response times;

12. Project complies with water and energy conservation standards;

13. Provision of park dedication, school impact, and other fees as may be required;

14. Project complies with coastal housing policies, and applicable ordinances including condominium conversion and mobile home ordinances;

15. Project complies with natural resource, habitat, and archaeological protection policies;

16. Project complies with Monarch butterfly habitat protection policies;

17. Project provides drainage and erosion and control measures to protect marine, stream, and wetland water quality from urban runoff and erosion;

18. Geologic/engineering reports have been prepared by qualified professional for projects in seismic areas, geologically unstable areas, or coastal bluffs, and project complies with hazard protection policies including provision of appropriate setbacks and mitigation measures;

19. All other geological, flood and fire hazards are accounted for and mitigated in the project design;

20. Project complies with shoreline structure policies;

21. The uses proposed are consistent with the permitted or conditional uses of the zoning district in which the project is located;

22. Conformance to requirements of all other city ordinances, zoning requirements, and project review procedures; and

23. Project complies with the Capitola parking permit program as follows:

a. The village area preferential parking program areas and conditions as established in Resolution No. 2596 and no permit parking of any kind shall be allowed on Capitola Avenue.

b. The neighborhood preferential parking program areas are as established in Resolution Numbers 2433 and 2510.

c. The village area preferential parking program shall be limited to three hundred fifty permits.

d. Neighborhood permit areas are only in force when the shuttle bus is operating except that:

i. The Fanmar area (Resolution No. 2436) program may operate year-round, twenty-four hours a day on weekends,

ii. The Burlingame, Cliff Avenue/Grand Avenue area (Resolution No. 2435) have year-round, twenty-four hour per day “no public parking.”

e. Except as specifically allowed under the village parking program, no preferential residential parking may be allowed in the Cliff Drive parking areas.

f. Six Depot Hill twenty-four minute “Vista” parking spaces (Resolution No. 2510) shall be provided as corrected in Exhibit A attached to the ordinance codified in this section and found on file in the office of the city clerk.

g. A limit of fifty permits for the Pacific Cove parking lot may be issued to village permit holders and transient occupancy permit holders.

h. No additional development in the village that intensifies use and requires additional parking shall be permitted. Changes in use that do not result in additional parking demand can be allowed and exceptions for onsite parking as allowed in the land use plan can be made.

E. Conditions. Approval of a coastal permit shall be conditioned as necessary to ensure conformance with and implementation of Capitola’s certified local coastal program. The approving authority may require modification and resubmittal of project plans, drawings and specifications to insure conformance with said program.

F. Access Requirements. Offers to dedicate or grant public access easements shall be made in accordance with the provisions of the local coastal land use plan and Section 17.46.010. The offer of dedication or granting should ordinarily be made on forms provided by the city. Access easements shall be provided in accordance with the following provisions of the local coastal land use plan.

Provisions regarding implementation of access easement requirements are included within subsection G of this section.

1. Access easements shall be provided in accordance with provisions of the local coastal program land use plan and the following:

As a condition of approval and prior to issuance of a permit or other authorization for any new development identified in subsection (F)(1)(a) through (d) of this section, except as provided in subsection (F)(2), an offer of dedicate an easement (or other legal mechanism) for one or more of the types of access identified in Section 17.46.030 shall be required and shall be supported by findings required by Section 17.46.090(D); provided, that no such condition of approval shall be imposed if the analysis required by Section 17.46.090(D)(1)(a) and (b) 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.

a. New development on any parcel or location identified in the land use plan including but not limited to the Park Avenue/Southern Pacific Railroad right-of-way along the bluff top between Capitola Village and New Brighton Beach;

b. New development between the nearest public roadway and the sea;

c. New development on any site where there is substantial evidence of a public right of access to the sea acquired through use or a public right of access through legislative authorization;

d. 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.

2. Exceptions. Subsection (F)(1) of this section shall apply except in the following instances:

a. Projects excepted from the definition of “new development” in Section 17.46.030;

b. Where findings required by subsection (D)(1) and (2) of this section establish any of the following:

i. Public access is inconsistent with the public safety, military security needs, or protection of fragile coastal resources;

ii. Adequate access exists nearby; or

iii. Agriculture would be adversely affected;

c. Exceptions identified in subsection (F)(2)(b) shall be supported by written findings required by subsection (D)(3) of this section.

3. 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 subsection (F)(1) of this section 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 local coastal program.

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 subsection (F)(1) of this section 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 subsection (D)(2) of this section.

Each vertical accessway shall be legally described as required in subsection (G) of this section. If a residential structure is proposed, the accessway should be sited closer than ten feet to the structure (or another distance if specified in the certified LUP).

4. 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 subsection (F)(1) of this section 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 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 subsection (D)(2) of this section. Lateral access shall be legally described as required in subsection (G) of this section.

5. A condition to require public access along a bluff top as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to subsection (F)(1) of this section shall provide the public with the permanent right of scenic and visual access from the bluff top to the public tidelands.

The bluff top 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 subsection (D)(2) of this section.

Each bluff top accessway shall be described in the conditions of approval of the coastal development permit as an area beginning at the current bluff edge extending twenty-five feet inland (or a different standard, greater or lesser as determined to be necessary for public safety or geologic stability, if specified in the certified LUP). However, the accessway shall not extend any closer than ten 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 life expectancy in years of the improvements.

The accessway shall be legally described as required in subsection (G) of this section, 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 ____ feet wide located along the bluff top 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, but in no case shall it extend any closer than feet from (a fixed inland point, such as the centerline of a public road or other easement monument).

6. 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 subsection (F)(1) of this section 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 subsection (D)(2) of this section. The trail access shall be legally described as required by subsection (G) of this section.

7. 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 subsection (F)(1) of this section 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 subsection (F)(3) through (6) of this section as applicable. The accessway shall be legally described as required in subsection (G) of this section.

G. Review of Legal Documents. Prior to issuance of a coastal permit, all legal documents pertaining to public access and open space or conservation easements which are conditions of approval of a coastal permit, shall be forwarded to the Executive Director of the California Coastal Commission for review and approval of the legal adequacy and consistency with the requirements of potential accepting agencies.

An access dedication required pursuant to subsection (F)(1) of this section 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: (1) for lateral access: along the entire width of the property from the mean high tide line to (as applicable) the toe of the bluff, the toe of the seawall, or other appropriate boundary such as stringline or dripline; (2) for blufftop access or trail access: extending inland from the bluff edge or along the alignment of a recreational trail; (3) for vertical access: extending from the road to the shoreline (or bluff edge). A privacy buffer provided pursuant to subsection (J) of this section shall be described, as applicable.

Prior to the issuance of the coastal development permit or other authorization for development, the landowner shall (except as precluded by Nolan v. California Coastal Commission, 483 U.S. 825) execute and record a document in a form and content acceptable to the coastal commission (or local agency authorized pursuant to Title 14 California Code of Regulations 113574(b)), irrevocably offering to dedicate to a public agency or private association approved by the coastal commission (or local agency authorized pursuant to Title 14 California Code of Regulations 113574(b)) an easement for a specific type of access as described in Section 17.46.030 and a specific character of use as described in Section 17.46.030, as applicable to the particular condition.

The recorded document shall provide that the offer to dedicate shall not be used or construed to allow anyone, prior to acceptance of the dedication, to interfere with the rights of public access acquired through use which may exist on the property.

The recorded document shall include legal descriptions of both the applicant’s entire parcel and the easement area and a map to scale. The offer shall be recorded free of prior liens and any other encumbrances which the coastal commission (or local agency authorized by the commission) determines may affect the interest being conveyed. The offer to dedicated shall run with the land in favor of the people of the state, binding all successors and assignees, and shall be irrevocable for a period of twenty-one years, such period running from the date of recording.

The commission shall have fifteen working days from the receipt of the documents where review is requested and thirty working days where preparation is requested, to complete the review or preparation and notify the applicant and local government of recommended revisions, if any.

If the local government does not receive notification of the inadequacy of documents it has prepared within the fifteen working-day period, the documents are deemed approved and the permit may be issued upon proof that the documents have been recorded free of prior liens and encumbrances which the executive director determines may affect the interest being conveyed, in accordance with the provisions of the local government’s local coastal program.

Where the commission prepares the legal documents, the local government may issue the permit after the thirty-day preparation period has expired, or the applicant has signed a document that meets the standards of this section, and the document has been recorded free of prior liens and encumbrances which the executive director determines may affect the interest being conveyed, in accordance with the provisions of the local governments’ local coastal program.

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 agreement. Title insurance may also be required where easements are being granted. The amount of all reflect the estimated cost to acquire an equivalent accessway or recreational use elsewhere in the vicinity. All offers shall be made free of all encumbrances which the approving authority pursuant to this subsection determines may affect the interest being conveyed. If any such interest exists which could erase the access easement, it must be subordinated through a written and recorded document.

H. Protection of Historic Public Use. Development shall be sited and designed in a manner which does not interfere with or diminish any public right of access which may have been established based on 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 subsections (F)(3) through (7) of this section.

An access condition shall not serve to extinguish or waive, public prescriptive rights. In permits where evidence shows the possibility of such prescriptive rights, the following language shall be added to the access condition:

Nothing in this condition shall be construed to constitute a waiver of any prescriptive rights which may exist on the parcel itself or on the designated condition.

I. Management Plan. A management plan may be required in conjunction with a dedication of public access in any case where there is substantial evidence of potential conflicts between public access use and other uses on or immediately adjacent to the site. Examples include access in areas of sensitive habitats, agricultural resources, or significant hazards, or adjoining residential neighborhoods or military security areas. The plan shall be prepared by the accepting agency and approved by the city prior to the opening of the access to public use. Where applicable, the plan should specify management controls on time and intensity of uses, standards for privacy buffers, and requirements for maintenance of aesthetic values through such measures as litter control.

J. Privacy Buffers. 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 not distance specified, no closer than ten fee. The buffer can be reduced where separation is achieved through landscaping fences or grades separation.

K. Implementation. A dedicated accessway shall not be required to be opened to public use until a public agency or private association approved in accordance with subsection (G) of this section agrees to accept responsibility for maintenance and liability of the access, except in cases where immediate public access is implemented through a deed restriction.

In any case where the size and character of a development would impose very substantial burdens on public access, such as a large resort development on the shoreline and where the applicant has the capacity to operate and maintain the accessway or recreation area, deed restriction may be required instead of an offer to dedicate in order to ensure immediate public use of the area and maintenance of the area by the applicant and successors in interest. In any such case, all other, applicable provisions of this chapter shall apply.

Access facilities constructed on access easements (e.g., walkways, paved paths, boardwalk, etc.) should be no wider than necessary to accommodate the numbers and types of users that can reasonably be expected and in accordance with standards in subsection (F) of this section.

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. Title insurance may also be required where easements are being granted. The amount of insurance shall reflect the estimated cost to acquire an equivalent accessway or recreational use elsewhere in the vicinity. All offers shall be made free of all encumbrances which the approving authority pursuant to subsection G of this section determines may affect the interest being conveyed. If any such interest exists which could erase the access easement, it must be subordinated through a written and recorded agreement.

Where revisions are required to meet the standards of this section, the permit shall not be issued until the local government has been notified that all issues of adequacy, uniformity and consistency have been resolved and the documents has been recorded free of prior liens and encumbrances, in accordance with the provisions of the certified local coastal program. (Ord. 941 § 1, 2009; Ord. 754, 1993; Ord. 727 §§ 6, 7, 1992; Ord. 691 §§ 9 – 13, 1990; Ord. 685 § 11, 1989; Ord. 677 § 1(D), (E), 1989; Ord. 627 Exhibit A (part), 1987)

17.46.100 Notice of final action.

A. Within seven calendar days of a final local decision on a coastal permit application, the city shall provide notice of its action by first class mail to the applicant, the state Coastal Commission, and any other persons who have requested such notice by submitting a self-addressed, stamped envelope to the city. The notice shall contain the city’s adopted findings, conditions of approval, indication of whether the project is appealable to the Coastal Commission, and procedures for appeal to the Commission. A local decision on a coastal permit application shall be deemed final when all local rights of appeal have been exhausted as defined below.

B. Failure to Act – Notice.

1. Notification by Applicant. If the city has failed to act on an application within the time limits set forth in Government Code Sections 65950 to 65957.1, thereby approving the development by operation of law, the person claiming a right to proceed pursuant to Government Code Sections 65950 to 65957.1 shall notify, in writing, the community development director and the commission of his or her claim that the development has been approved by operation of law. Such notice shall specify the application which is claimed to be approved and shall be delivered to city within sixty days of the day the application was allegedly approved by law.

2. Notification by Local Government. When the city determines that the time limits established pursuant to Government Code Sections 65950 to 65957.1 have expired, the community development director shall, within seven calendar days of such determination, notify any person entitled to receive notice pursuant to Section 13571(a) of Title 14 of the California Administrative Code that the application has been approved by operation of law pursuant to Government Code Sections 65950 to 65957.1 and the application may be appealed to the commission pursuant to Section 13110 et seq., of Title 14 of the California Administrative Code. (This section shall apply equally to a city determination that the project has been approved by operation of law and to a judicial determination that the project has been approved by operation of law.) (Ord. 677 § 1(F), 1989; Ord. 627 Exhibit A (part), 1987)

17.46.110 Appeals.

A. Local Appeals. The city council shall have jurisdiction on coastal permit appeals from a planning commission decision. An appeal must be filed within ten calendar days after the decision. An appeal shall be filed with the planning department in the form of a letter requesting the appeal. A public hearing on an appeal shall be held within forty-five days after the department of planning receives a completed appeal form. A notice of the public hearing on the appeal shall be mailed by the planning department to the applicant and any known aggrieved person not less than ten calendar days prior to the hearing. Such notice shall contain the same information as the original notice except that it shall also give the appellant’s name and state that the hearing is an appeal. All decisions on appeal shall be based upon the same findings of fact required in the original proceeding. Except for appeals to the Coastal Commission for projects located seaward of the appealable area boundary, there shall be no further local appeals after a decision on appeal.

B. Appeals to the California Coastal Commission.

1. Local actions on coastal permits may be appealed by an aggrieved person to the California Coastal Commission. All developments approved or approved with conditions may be appealed if they are located within the appealable area as designated by map or ordinance. Decision on major energy facilities or major public works may be appealed if approved, approved with conditions or denied. Appeals shall be according to the procedures of this section, provided that:

a. All local appeals of city actions provided for by this section have been exhausted and no fee was charged for such appeal; and

b. The appeal is filed (to) with the coastal commission within the commission’s ten working day appeal period which begins upon receipt of a valid notice of final action from the city.

c. Any coastal commission appeal by two or more coastal commissioners, when the local appeals of city actions provided for by this section have not been exhausted, shall constitute a local appeal which has not been exhausted. Any local action to modify or reverse the appealed action shall require that a new coastal commission appeal by two or more coastal commissioners be filed in order to constitute a complete coastal commission appeal.

2. An appeal to the state Coastal Commission may be made for the following types of development:

a. Developments approved 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 three hundred feet of the mean high tide line of the sea where there is no beach, whichever is the greater distance;

b. Approved developments, not included in subsection (B)(2)(a) of this section located on tidelands, submerged lands, public trust lands, within one hundred feet of any wetland, estuary, 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.

3. All appealable developments may be appealed by an applicant, any two members of the state Coastal Commission, or any aggrieved person. Grounds for appeal of an approved coastal permit for developments described in subsection (B)(2) of this section, are limited to the following:

a. The development fails to provide adequate physical access, public or private commercial use, or interferes with such uses;

b. The development fails to protect public views from any public road or from a recreational area to and along the coast;

c. The development is not compatible with the established physical scale of the area;

d. The development may significantly alter existing natural landforms;

e. The development does not comply with shoreline erosion and geologic setback requirements.

C. The grounds for appeal for development described in subsections (B)(2)(b) and (c) of this section are limited to consideration of whether or not the proposed development is in conformance with the certified local coastal program. (Ord. 685 § 7, 1989; Ord. 677 § 1(G), 1989; Ord. 627 Exhibit A(part), 1987)

17.46.120 Permit issuance.

A. Effective Date of a Coastal Permit. A coastal development permit shall be effective as follows:

1. Outside the Coastal Commission Appeal Area. The coastal permit shall become effective ten working days after the city’s final decision;

2. Within the Coastal Commission Appeal Area. Decisions on applications for appealable developments shall become effective after a ten-working-day appeal period to the coastal commission has expired and no appeal has been filed. The ten-day appeal period shall start the day after receipt by the coastal commission of adequate notice of the final local action.

B. Expiration of Permits.

1. Except as otherwise provided for in conditions of approval, every right or privilege authorized under this chapter shall terminate two years after granting the request, if such right or privilege has not been exercised in good faith within that time. Such termination will take effect without further city action if a timely request for extension of time has not been made or is denied. Any interruption or cessation beyond the control of the property owner shall not result in the termination of such right or privilege.

2. Upon written request received prior to the expiration of the permit, a one-year extension of such right or privilege may be granted by the city council or planning commission, whichever granted the permit. Such request may be granted upon a finding that no substantial change of circumstances has occurred and that such extension would not be detrimental to the purpose of the certified local coastal program and zoning ordinance.

C. Revocation of Permits. Except as otherwise provided, upon determination that there has been a violation of the conditions of any permit or approval provided by this chapter, the community development director shall schedule a public hearing before the city council or planning commission, whichever granted the permit, to determine if such permit or approval should be revoked. At such hearing, the community development director shall present evidence of such violation. If the hearing body finds that the conditions have been violated and that the property owner has not made a good-faith effort to comply, the permit or approval shall be revoked. The property owner shall have the same right of appeal as would have been applicable if the initial application had been denied by the person or body granting the permit.

D. Limiting Resubmission. Whenever a request under the provisions of this section has been denied and such denial has become final, no new application for the same or similar request may be accepted within one year of the denial date, unless the community development director finds that a sufficient change in circumstances has occurred to warrant a new application. (Ord. 873 § 22, 2004; Ord. 627 Exh. A (part), 1987)

17.46.130 Emergency permits.

A. Emergency coastal permits may be granted at the discretion of the community development director or a local official designated by the city council for projects normally requiring coastal permit approval, which must be undertaken as emergency measures 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 in cases of emergencies shall be made to the city by letter 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 permit.

C. 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 the following:

1. The nature of the emergency;

2. The cause of the emergency, insofar as this can be established;

3. The location of the emergency;

4. The remedial, protective or preventive work required to deal with the emergency; and

5. The circumstances during the emergency that appeared to justify the course(s) of action taken, including the probable consequences of failing to take action.

D. The community development director or other designated local official shall verify the facts, including the existence and nature of the emergency, insofar as time allows. Upon the issuance of an emergency permit, the applicant shall submit a completed coastal permit application and any required technical reports within a time specified by the community development director, not to exceed thirty days.

E. The emergency work authorized under approval of an emergency permit shall be limited to activities necessary to protect the endangered structure or essential public structure. The emergency approval shall be voided if the approved activity is not exercised within fifteen days of issuance of the emergency permit. The approval shall expire sixty days after issuance. Any work completed outside of these time periods requires a regular coastal permit approval unless an extension is granted by the city.

F. Criteria for Granting Permit. The community development director shall provide public notice of the proposed emergency action, with the extent and type of notice determined on the basis of the nature of the emergency itself. The community development director may grant an emergency permit upon reasonable terms and conditions, including an expiration date and the necessity for a regular permit application later, if the director finds that:

1. An emergency exists and requires action more quickly than permitted by the procedures for ordinary permits and the development can and will be completed within thirty days unless otherwise specified by the terms of the permit;

2. Public comment on the proposed emergency action has been reviewed if time allows; and

3. The work proposed would be consistent with the requirements of the certified LCP.

G. Reporting of Emergency Permits. The community development director shall report emergency permits to the city council planning commission at their next regular meeting and to the Coastal Commission. The decision to issue an emergency permit is solely at the discretion of the community development director, although subsequent coastal permits required for the project are subject to all applicable hearing requirements in accordance with the Coastal Act.

H. Emergency Waivers Granted by the Coastal Commission. The Coastal Commission retains authority for granting emergency waivers for those events which threaten life of public property (Coastal Act Section 30611) and for all development located within the Commission’s original jurisdiction. (Ord. 691 § 13, 1990; Ord. 685 §§ 6, 15, 1989; Ord. 677 § 1(H), (I), 1989; Ord. 627 Exhibit A (part), 1987)

17.46.140 Amendments.

An applicant may petition to amend a coastal permit by filing a new application pursuant to the requirements of this chapter. Any amendment approved for development in the coastal zone shall be found consistent with all applicable local coastal program requirements, and this chapter with regards to requirements of jurisdiction, hearings, notices and findings for approval. (Ord. 677 § 1 (J), 1989; Ord. 627 Exhibit A (part), 1987)

17.46.150 Consistency required.

The approving body (or the Coastal Commission on appeal) may approve a density greater than allowed by the underlying land use and zone district designations for affordable residential projects if the following criteria are met:

A. The proposed increased density is consistent with the Coastal Act Section 30604(f), Government Code Section 65915, and Chapter 18.03 of the Capitola Municipal Code.

B. If located within the coastal zone, the project is found to be in conformity with the Local Coastal Program (including, but not limited to, sensitive habitat, public viewshed, public recreational access and open space protections), with the exception of the density provisions. (Ord. 950 § 2, 2010)